Schilling v Lionel Samson Sadleirs Group (LSSG) [2016] FWC 6083 (26 August 2016)

[2016] FWC 6083

Fair Work Act 2009_

s.394 - Unfair dismissal

Lionel Samson Sadleirs Group (LSSG) T/A Sadleirs

Termination of employment - high income threshold.

[1] This decision concerns an application made by Mr Christopher Schilling (Mr Schilling or the applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The respondent is Lionel Sampson Sadleirs Group (LSSG) trading as Sadleirs (the respondent).

[2] The respondent has moved for the dismissal of this application on the basis that the applicant's annual rate of earnings is above the current high income threshold of $138,900 applicable from 1 July 2016 (section 382(b)(iii) of the Act) and the applicant's employment is not covered by a modern award (section 382(b)(i) of the Act) or enterprise agreement (section 382(b)(ii) of the Act).

[3] The Commission wrote to Mr Schilling on 11 August 2016 explaining that on the face of the materials attached to his application it appears he was not covered by an award or enterprise agreement and his annual rate of earning and other amounts was apparently $120,000 plus $20,800 location allowance plus a value to be determined for use of the vehicle, iPhone and laptop. It was explained that this in total exceeded the high income threshold of $138,900 and that if this is the case his application cannot proceed and will be dismissed.

[4] The Commission's letter requested he advise by 22 August 2016 whether he wished to discontinue his application or alternatively if he wished to proceed to provide a witness statement, any supporting documents and a written submission as to why the jurisdictional objection should be rejected. This letter was sent to Mr Schilling by post and email.

[5] As at the date of this decision there is been no response from Mr Schilling nor has he otherwise contacted the Commission.

[6] Attached to Mr Schilling's application was a document dated 12 June 2015 headed "Offer of Employment". The document on the last page provides a space for Mr Schilling to have signed and dated to the effect that he had read and accepted the terms of his employment but this is blank. The first page of the document is an "Employment Schedule" which amongst other things says the remuneration is $120,000 per annum and the location allowance is $400 per week and that a company vehicle is provided as well as an iPhone and laptop.

[7] Also attached to Mr Schilling's application is a second document also headed "Offer of Employment" but which is dated 9 October 2015 which provides the same details for remuneration and location allowance and the provision of a company vehicle, iPhone and a laptop. On the last page of this document under the words "I have read and accept the terms of employment set out above" it has been signed by Mr Schilling and dated 31 October 2015.

[8] The position identified on both offers of employment was as a "Materials and Logistics Coordinator". I find that no modern award or enterprise agreement covered or applied to Mr Schilling.

[9] I am satisfied then that Mr Schilling's base pay was $120,000 per annum and he received a weekly location allowance of $400 per week amounting to $20,800 per annum. Considering he also was provided with a company vehicle, an iPhone and a laptop I find that his annual rate of earnings was in excess of $140,800.

[10] Section 382 of the Act, set out below, prescribes when a person is protected from unfair dismissal.

"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."

[11] With effect from 1 July 2016 the high income threshold referred to in section 382(b)(iii) above is $138,900.

[12] Because no modern award covered Mr Schilling nor did an enterprise agreement apply to him and his annual rate of earnings were greater than the high income threshold of $138,900 Mr Schilling was not a person protected from unfair dismissal. Mr Schilling was not entitled to make an unfair dismissal application.

[13] Consequently I uphold the respondent's objection to Mr Schilling's application which must be dismissed. An order to that effect will be issued.

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