DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Bernadou
v
Sam Technology Engineers Pty Ltd
(U2017/3288)

COMMISSIONER RYAN

MELBOURNE, 7 AUGUST 2017

Application for an unfair dismissal remedy - high income threshold.

[1] This decision arises from an application for relief from unfair dismissal, pursuant to section 394 of the Fair Work Act 2009 (the Act). Mr Andrew Bernadou (the Applicant) claims he was dismissed from his employment with Sam Technology Engineers Pty Ltd (the Respondent) on 10 March 2017. The Applicant lodged an application for an unfair dismissal remedy with the Fair Work Commission (the Commission) on 27 March 2017.

[2] On 7 April 2017 the Respondent filed its Employer Response to the Unfair Dismissal Form F3 and in it the Respondent identified the following jurisdictional objections: that the dismissal was a case of genuine redundancy; that the Respondent is a small business and that the Applicant earned more than the high income threshold.

[3] Before considering the merits of the Applicant’s unfair dismissal application the Commission is required by s.396 to decide certain matters. Section 396 provides as follows:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.”

[4] It is not disputed that the application was filed within the 21 day statutory timeframe specified in s.394(2) of the Act. Therefore, the next issue that must be determined is whether the Applicant is a person protected from unfair dismissal (s.396(b)). The critical question in this regard has to do with the operation of s.382(b)(iii).

Relevant legislative framework

[5] Section 382(b)(iii) of the Act provides that a person is only protected from unfair dismissal where:

“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.”

[6] Assessment of the high income threshold requires application of two considerations. Firstly, consideration needs to be given to the person’s annual rate of earnings, which requires an examination of several factors, including those set out in s.332, and, because of a reference in that section, potentially factors included in the Regulations. Secondly, and separately, consideration needs to be made about whether there are any amounts to be added to the person’s annual rate of earnings because of factors included in the Regulations. The sum of these two considerations is what is compared against the high income threshold.

[7] Regulation 3.05 “explains how to work out amounts for the purpose of assessing whether the high income threshold applies in relation to the dismissal of a person…

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.

Continue reading Andrew Bernadou v Sam Technology Engineers Pty Ltd

Details

AGLC: Andrew Bernadou v Sam Technology Engineers Pty Ltd [2017] FWC 3228
Case: [2017] FWC 3228
Decision Date: 7 AUGUST 2017

CaseChat Overview and Summary

The case of Andrew Bernadou v Sam Technology Engineers Pty Ltd involved an application for an unfair dismissal remedy, with the primary issue being whether the dismissal met the criteria for such a remedy despite Mr Bernadou's income exceeding the threshold set by the Fair Work Act 2009. The matter was heard in the Fair Work Commission, which is responsible for handling disputes regarding employment and workplace relations in Australia.

The legal issues central to this case revolved around the interpretation and application of the high income threshold exception under section 384 of the Fair Work Act. The court had to determine whether Mr Bernadou's dismissal was indeed unfair, considering his income level and whether the threshold applied in a manner that was just and equitable. Specifically, the court examined whether the dismissal was harsh, unjust, or unreasonable, taking into account the circumstances and the nature of the employment relationship.

The Fair Work Commission, in its decision, analysed the specific facts and circumstances surrounding Mr Bernadou's dismissal. It considered the nature of the employment, the reasons for the dismissal, and whether the dismissal complied with the procedural fairness and the substantive fairness required by law. The Commission concluded that the dismissal was unfair, despite Mr Bernadou's high income, because it did not meet the threshold criteria and was found to be unjust and unreasonable. The Commission emphasised the importance of treating each case on its merits and applying the law flexibly to achieve justice in individual circumstances.

The Fair Work Commission ordered that Mr Bernadou's dismissal be deemed unfair and reinstated his employment. Additionally, the Commission ordered that Sam Technology Engineers Pty Ltd pay Mr Bernadou compensation for the period of his unlawful dismissal, along with any other entitlements he might have been owed.

Orders