Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - high income threshold objection upheld - unnecessary to resolve minimum employment period objection - application dismissed

• [1] Mr Vivek Singha (Applicant) has filed an unfair dismissal application (Application) with the Fair Work Commission (Commission) alleging that he was unfairly dismissed (within the meaning of s.385 of the Fair Work Act 2009 (Act)) by his employer, Metal Manufactures Pty Limited (Respondent/Employer).

• [2] The Respondent has raised two jurisdictional objections to the Application, being:

a) that the Applicant's annual rate of earnings exceeded the High Income Threshold (HIT) (relevantly, $175,000 under the Fair Work Regulations 2009) at the time of his dismissal;[1] pursuant to s.333 of the Act; and

b) that the Applicant's employment period did not meet the minimum employment period pursuant to s.383 of the Act.

• [3] If one of the above two jurisdictional objections is upheld, the Applicant's Application must be dismissed.

(1) Subject to this section, the high income threshold is the amount prescribed by, or worked out in the manner prescribed by, the regulations.

(2) A regulation made for the purposes of subsection (1) has no effect to the extent that it would have the effect of reducing the amount of the high income threshold.

(3) If:

(a) in prescribing a manner in which the high income threshold is worked out, regulations made for the purposes of subsection (1) specify a particular matter or state of affairs; and

(b) as a result of a change in the matter or state of affairs, the amount of the high income threshold worked out in that manner would, but for this subsection, be less than it was on the last occasion on which this subsection did not apply;

the high income threshold is the amount that it would be if the change had not occurred."

• [5] A person is only protected from unfair dismissal if, at the time of their dismissal, they have completed the minimum employment period with their employer, and they are either covered by a modern award, are an employee to whom an enterprise agreement applies, and/or the sum of their annual rate of earnings (including relevant prescribed benefits) is less than the HIT.

• [6] The Applicant's dismissal date was 17 February 2025. The Applicant was not covered by a modern award, and there is no enterprise agreement that applied to his employment.

• [7] At the time of dismissal, the Respondent's evidence is that the Applicant's annual rate of earnings was $200,000 (plus superannuation).[2]

• [8] The Applicant disputes that his annual earnings were above the HIT at the time of his dismissal.[3] In this regard, the Applicant asserts that:

1. despite having an annual rate of earnings above the HIT, he had not earnt that amount to date; and

d) that the HIT jurisdictional objection is merely a distraction from the Respondent's alleged 'systemic misconduct'.

• [9] Regard must be had to the Applicant's annual 'rate' of earnings, rather than how much he had actually earned to date.[4] In any event, the Applicant's argument in respect of his 'actual' earnings was very much vague and unparticularised, and his contentions were made by way of assertion/s, as opposed to evidence.

• [10] There is no basis to reject the Respondent's evidence that the Applicant's annual rate of earnings was above the HIT at the time of his dismissal. I therefore find that the Applicant's annual rate of earnings was above the HIT.

• [11] The Respondent's HIT objection is upheld. There is no need to consider the Respondent's minimum employment period objection. The Applicant's Application is dismissed, and an order to this effect will be published contemporaneously with this Decision [PR788095].

• [12] I note that the Respondent has put the Applicant on notice that it intends to seek orders for the recovery of its legal costs from him. Any such costs application should be filed and served within 14 days of the date of this decision, and it will be dealt with in the usual way.

[1] See s.333 of the Fair Work Act 2009 (Act).

[2] The Respondent evidenced this by reference to the Applicant's employment contract (Witness Statement of Gary Nicholas Christopher Tyler dated 16 May 2025, Annexure A), and a later Letter of Variation (Ibid, Annexure B) which, inter alia, show the Applicant's annual salary was $200,000 (plus superannuation). Note definition of "earnings" under s.332 of the Fair Work Act 2009.

[3] Email from the Applicant to the Chambers of Deputy President Boyce (8 May 2025, 3:28pm).

[4] Zappia v Universal Music Australia Pty Limited T/A Universal Music Australia [2012] FWAFB 6108, at paragraphs [8]-[9], and Paul Dirkis v Staffing and Office Solutions Pty Ltd T/A SOS Recruitment [2021] FWCFB 154, at paragraphs [49]-[50]. Note definition of "earnings" under s.332 of the Fair Work Act 2009.

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