Fair Work Act 2009

s.394 - Unfair dismissal

Termination of employment - jurisdiction - high income threshold.

[1] This matter involves an application made by Mr Paul Paisley (Mr Paisley or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Sandvik Mining (the respondent).

[2] This matter was listed for a conciliation conference jointly with application C2012/6137; being another application made by Mr Paisley against the respondent regarding a dispute under section 739 of the Act which dealt with similar issues to this unfair dismissal application.

[3] At that conference the respondent raised a jurisdictional objection to this unfair dismissal application on the grounds that it was asserted that the applicant was not protected from unfair dismissal by virtue of section 382 of the Act. It was discussed that the applicant had attached his contract of employment to application C2012/6137 which indicated his salary was $140 000.

[4] Notwithstanding that objection the respondent was willing to participate in conciliation however this unfair dismissal application could not be resolved at this conference.

[5] Following that conference I wrote to the applicant as follows:

As discussed at the conference held on Friday, 14 December 2012 not all employees under the legislation are protected from unfair dismissal and so able to make an application for an unfair dismissal remedy.

These limitations are set out in section 382 of the Fair Work Act 2009 (the Act) below:

"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

(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."

In your case it appears that there was no modern award or enterprise agreement that covered or applied to you and your annual rate of earnings was above the high income threshold.

If this is correct then you were not able to make this application and your application will be dismissed.

In order for me to determine whether you are able to proceed please provide any information on this issue to chambers.williams.c@fwa.gov.au by 4:00pm Wednesday, 9 January 2012. If I believe it is necessary I will forward a copy of your views to Sandvik Mining for their comment.

I will then determine whether their application can proceed or will be dismissed..."

[6] Some time later at the applicant's request I agreed to extend the time for him to file his response to Wednesday, 23 January 2013.

[7] The applicant was subsequently reminded to provide his response as directed and that if he failed to comply his file may be closed.

[8] As at the date of this decision the applicant has not provided any information to the Commission and specifically no information regarding the applicant's annual rate of earnings or other relevant matters under section 382 of the Act.

[9] The applicant was advised that I would determine the respondent's jurisdictional objection and he has had the opportunity to provide me with any relevant information regarding this issue but has not taken up that opportunity.

[10] On the information available to me; being that included by the applicant in this application and in application C2012/6137, I am satisfied that the applicant was employed as a Site Manager.

[11] Attached to this application was the letter of termination advising the applicant that his role as Site Manager was redundant. In addition as noted above the applicant's employment contract attached to C2012/6137 identifies this as his role.

[12] The applicant's employment contract also states that a total base salary of $140 000 was payable and that in addition to this base salary the applicant was entitled to a location allowance of $3 270 per month whilst he was based at the project site and operating under the site roster. These details are included in the schedule to the applicant's employment contract dated 1 March 2012 provided to the Commission as part of C2012/6137.

[13] Considering this material I am satisfied on the balance of probability that there was not a modern award that covered the applicant nor was there an enterprise agreement applying to the applicant in relation to his employment and that the sum of the applicant's annual rate of earnings was above the high income threshold.

[14] Consequently I am satisfied that by virtue of the terms of section 382 of the Act the applicant is not a person who is protected from unfair dismissal.

[15] That being the case I uphold the respondent's jurisdictional objection. The applicant was not entitled to make this application and so his application must now be dismissed.

[16] An order to that effect will be issued in conjunction with this decision.

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