Until his employment was terminated on 18 August 2017, Terrence Howell was the company’s national dangerous goods manager within the resource and industrial business unit.
He lodged an application for an unfair dismissal claim to be heard by the Fair Work Commission (FWC) soon after.
Linfox disputed that an application could be made on several technicalities.
Firstly, the company alleged that Mr Howell earned too much to be considered by the FWC. At the time, the high income threshold was $142,000, while Mr Howell’s package was worth more than $150,000. However his base salary sat below this threshold, and was pushed over by superannuation entitlements.
Linfox also contested that as Mr Howell was not a driver, he was not covered under the scope of the company’s own employment agreement.
In the initial judgment, the FWC found that Mr Howell was indeed an employee under the company’s employment agreement, and that meant he was in fact eligible to be considered for unfair dismissal.
Appeals against verdicts by the FWC are rare, given that, as the FWC states, “an appeal under s.604 of the act is an appeal by way of rehearing and the commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. There is no right to appeal and an appeal may only be made with the permission of the commission”.
Nevertheless, Linfox lodged a request to appeal, claiming the initial adjudicator had “erred” in making the verdict, and had failed to properly consider the employment agreement in its entirety. But FWC president Justice Ross dismissed Linfox’s claims.
“We are not persuaded that the appellant [Linfox] has established that it is in the public interest to grant permission to appeal. Nor are we persuaded that the appellant has established an arguable case of error in relation to the decision or that there are any other considerations that warrant the grant of permission to appeal,” he said.
“Accordingly, permission to appeal is refused.”
It is understood the unfair dismissal claim itself can now be heard by the FWC. If found in Mr Howell’s favour, the delay may cost Linfox substantially more in interest payments should a financial penalty be handed down.
Details of the reasoning behind the unfair dismissal claim have not yet been released.