Tucker v Digital Diagnostic Imaging Pty Ltd - [2011] FWA 1767

[2011] FWA 1767

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Tucker
v
Digital Diagnostic Imaging Pty Ltd
(U2010/14258)

COMMISSIONER CAMBRIDGE

SYDNEY, 24 MARCH 2011

Unfair dismissal - jurisdictional objection - s.382 (b) whether a Modern Award covers the applicant - application dismissed

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 18 November 2010. The application was made by Graeme Tucker (the applicant), and the respondent employer was identified to be Digital Diagnostic Imaging Pty Ltd (the employer).

[2] The application stated that the date of the applicant’s dismissal was 13 October 2010. Consequently the application was not made within the 14 day time limit prescribed by subsection 394 (2) of the Act.

[3] Freehills lawyers, acting on behalf of the employer, provided an employer's response to the application for unfair dismissal remedy which raised jurisdictional objections on the basis that the application was both out of time and that the applicant was not covered by a modern award or enterprise agreement and his annual rate of earnings exceeded the high income threshold, (the s.382 (b) objection).

[4] Conciliation of the claim was unsuccessful and the matter proceeded to a Jurisdictional Hearing before Fair Work Australia (FWA) conducted in Sydney on 25 February 2011. The Jurisdictional Hearing involved both the extension of time issue and the s.382 (b) objection.

[5] At the Jurisdictional Hearing the applicant was represented by Mr M Gibian, a barrister. The applicant was the only witness called in support of the application. The employer was represented by Mr D Perry, a solicitor from Freehills. The employer adduced evidence from one witnesses, Mr Matthew Bardsley the employer’s Managing Director.

[6] Although both the out of time issue and the s.382 (b) objection would need to be resolved in the applicant's favour in order to allow the matter to proceed to a determination of its merits, either one of these issues could operate to deprive the applicant of any potential unfair dismissal remedy. For the purposes of this Decision I have confined consideration to the s.382 (b) objection.

[7] Section 382 of the Act is in the following terms:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[8] In this instance there…

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: [2011] FWA 1767
Decision Date: 24 MARCH 2011

CaseChat Overview and Summary

The case of Tucker v Digital Diagnostic Imaging Pty Ltd was heard in the Fair Work Commission. The applicant, Mr Tucker, sought relief for an unfair dismissal. He argued that his termination was unjust and in breach of the Fair Work Act. Digital Diagnostic Imaging Pty Ltd contested the claim, asserting that the dismissal was justified and not unfair. The central issue before the Commission was whether Mr Tucker's dismissal was indeed unfair under the provisions of the Act and whether the Commission had the jurisdiction to hear the matter.

The Commission needed to determine two primary legal issues. Firstly, it had to ascertain whether Mr Tucker was covered by a Modern Award, which would give him the right to seek unfair dismissal remedies. Secondly, if Mr Tucker was covered by a Modern Award, the Commission had to decide if the dismissal was indeed unfair, and if so, whether it was justified by valid reasons. The Commission examined the applicable Modern Award provisions and Mr Tucker's employment conditions to establish if he qualified for protection. Furthermore, the Commission evaluated the reasons for the dismissal and whether they met the criteria for a valid and justifiable termination under the Act.

The Commission found that Mr Tucker did not qualify for protection under a Modern Award, as his employment did not fall within the scope of the relevant award. Consequently, the Commission dismissed the application for lack of jurisdiction. The decision hinged on the specific terms of Mr Tucker's employment and the applicability of the Modern Award, which did not extend to his role. Given this jurisdictional finding, the Commission did not proceed to determine whether the dismissal was unfair.

The Fair Work Commission dismissed the application on the basis of lack of jurisdiction. The decision was based on the inapplicability of the Modern Award to Mr Tucker's employment, thereby negating the grounds for seeking unfair dismissal remedies.

Orders