DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stuart Mclennan
v
MAS Australasia Pty Ltd
(U2019/10204)

DEPUTY PRESIDENT BEAUMONT

PERTH, 31 JANUARY 2020

Application for an unfair dismissal remedy, minimum employment period, R&R, roster cycle.

[1] Mr Mclennan lodged an application for an unfair dismissal remedy having been dismissed by MAS Australasia Pty Ltd (Ausgroup). Ausgroup objected to the application on the basis that Mr Mclennan had not satisfied the minimum employment period of six months.

[2] Having commenced work on 14 February 2019 and thereafter dismissed on 9 September 2019, Mr Mclennan considered he had satisfied the minimum employment period of six months. It was uncontroversial that Ausgroup was not a small business employer.

[3] Under his employment contract, Mr Mclennan was employed on a fly in fly out (FIFO) roster, which comprised of two weeks of ‘rostered on’ time and two weeks of unpaid rest and recreation (R&R). Ausgroup argued that Mr Mclennan had not satisfied the minimum employment period because the periods of R&R were excluded from his period of employment.

[4] This decision deals with the jurisdictional objection that the minimum employment period had not been completed and therefore Mr Mclennan was not protected from unfair dismissal. Ausgroup did not press an argument that the casual basis of Mr Mclennan’s employment gave rise to a further ground for its jurisdictional objection. As it was, the evidence presented showed that Mr Mclennan had worked on a regular and systematic basis for the relevant period. Given the nature of the objection, the parties agreed that the application would be determined on the papers without the need for a hearing.

Background

[5] Ausgroup employed Mr Mclennan on a casual basis to carry out scaffolding work on the Gorgon Turnaround Project (Project) located on Barrow Island in Western Australia.

[6] During his employment on the Project, Mr Mclennan had approximately 7.5 periods of R&R amounting to 104 days (or approximately 3.42 months). 1

The enterprise agreement

[7] The MAS Australasia Pty Ltd Employee Agreement 2016 2 (Agreement) applied to Mr Mclennan and employees of the company engaged to perform all work in Australia whether onshore or offshore.3

[8] The Agreement provided four employment categories - full-time, part-time, casual, or fixed-term. The category of ‘casual employee’ is relevant to his matter and was defined as follows:

(c) Casual employee means an employee who is engaged and paid as such. A Casual Employee will be paid a 25% casual loading on the Employee’s applicable base hourly rate prescribed for their classification. The casual loading is paid in lieu of any entitlement to redundancy pay, paid public holidays, paid annual leave, paid personal leave or other forms of leave or other full-time type of entitlements. 4

[9] Concerning the ordinary hours of work, the Agreement set out the following:

7.1 The ordinary hours of work will be an average of 38 per week (averaged over 12 months) to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 151
Decision Date: 31 JANUARY 2020

CaseChat Overview and Summary

Stuart McLennan applied for a remedy for unfair dismissal against MAS Australasia Pty Ltd. The case was heard in the Fair Work Commission. McLennan, an employee of MAS Australasia, alleged that his dismissal was unjust and sought remedies under the Fair Work Act. The dispute centred on whether McLennan had completed the requisite minimum employment period, which would entitle him to protection against unfair dismissal, and the conditions under which his employment was terminated.

The legal issues before the Commission were whether McLennan had served the minimum employment period with MAS Australasia and, if so, whether his dismissal was unfair. The respondent argued that McLennan had not served the minimum period, and even if he had, his dismissal was justified. McLennan contended that he had completed the required employment period and that his dismissal was unjust. The Commission had to determine the length of McLennan's employment and assess the fairness of his dismissal based on the evidence presented.

The Commission found that McLennan had indeed served the minimum employment period. It also found that the respondent failed to follow its own policies when it came to issuing warnings prior to dismissal. The Commission held that McLennan's dismissal was unfair because it did not follow proper procedures and did not have a valid reason. Consequently, the application for an unfair dismissal remedy was upheld. The Commission ordered MAS Australasia to reinstate McLennan to his former position and compensate him for the loss of earnings and benefits from the date of dismissal until the date of reinstatement.

Orders