Anthony Mallard v Balmaine Gold Pty Ltd
[2023] FWC 2272
•8 SEPTEMBER 2023
| [2023] FWC 2272 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Anthony Mallard
v
Balmaine Gold Pty Ltd
(U2023/4804)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 8 SEPTEMBER 2023 |
Application for an unfair dismissal remedy – jurisdictional objections – applicant’s income exceeded high income threshold – application dismissed.
This is an edited version of my decision given ex tempore and recorded in transcript on 6 September 2023.
The applicant, Mr Anthony Mallard was, until the termination of his employment, employed as a mobile plant foreman with the respondent, Balmaine Gold Pty Ltd. Mr Mallard has applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act).
For a person to be able to make such an application, the person must be protected from unfair dismissal. That which is meant by the phrase, ‘protected from unfair dismissal’ is explained in s 382 of the Act.
Relevantly, a person is protected from unfair dismissal if at the time of the dismissal, the person was an employee who had completed the period of employment with his or her employer of at least the minimum employment period. This aspect is not in dispute. But more relevantly, a person is protected from unfair dismissal if one or more of the following apply - whether a modern award covers the person; an enterprise agreement applies to the person in relation to the employment; or 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.
The following matters are not in dispute. The position into which the applicant was employed was a position titled mobile plant foreman. That position is not a classification which is covered by the Mining Industry Award 2020. Neither that award nor any other modern award covered the applicant at the time of his dismissal. In that position, the applicant had an annual rate of earnings of $175,000 exclusive of superannuation. At the time of the applicant’s dismissal by the respondent (12 May 2023), the high-income threshold was $162,000 and so the applicant’s annual earnings of $175,000 exceeded the high-income threshold.
For Mr Mallard to be protected from unfair dismissal, he must therefore have been a person to whom an enterprise agreement applied in relation to the employment. At the time of commencing his employment with the respondent, the applicant executed a contract of employment which regulated the employment relationship. That employment, as I indicated, was in the position of mobile plant foreman and there is no dispute that the position of mobile plant foreman or employment in that position is not regulated by the relevant enterprise agreement being the Ballarat Mining Operations Enterprise Agreement 2019 (Agreement).
Mr Mallard says in essence, that prior to the termination of his employment, he had entered into an agreement with his supervisor, the effect of which was that he would perform the role of leading hand rather than mobile plant foreman. This would amount to a variation of the contract of employment as to duties, although the remuneration payable did not change. As I earlier indicated, at the time of commencing his employment, the applicant entered into a contract of employment. Relevantly, clause 41 of the contract of employment specifies that any variation of the contract will be of no force or effect unless it is reduced in writing and signed by both parties. The applicant did not call his former supervisor to give evidence to verify the purported variation, but in any event, as the contract makes clear, such variation needed to be in writing and as Mr Mallard conceded during the hearing, no such variation document is in existence. I do not accept there was any variation.
Consequently, the employment remained regulated by the contract as executed at the beginning of his employment and the position into which the applicant was employed (and remained so employed immediately before his dismissal) was as a mobile plant foreman. The fact that the applicant may have performed lower paid duties, that is, duties which might otherwise fall within a classification which is covered by the Agreement is neither here nor there. The relevant question is whether the Agreement applied to the applicant in relation to the employment at the time of his dismissal. The answer to that question is plainly, ‘no.’
In these circumstances, I am satisfied that the applicant is not a person who is protected from unfair dismissal within the meaning of s 382 because his annual rate of earnings exceeded the high income threshold at the time of his dismissal, and at that time he was not a person covered by the relevant modern award and the Agreement did not apply to the applicant in relation to the employment from which he was dismissed.
Consequently, as the applicant is not protected from unfair dismissal, the application must be dismissed, and I order that the application made by Mr Mallard under s 394 of the Act for an unfair dismissal remedy be dismissed.
An order giving effect to my decision was issued separately in PR765939.
DEPUTY PRESIDENT
Appearances:
A Mallard for himself
M Menabde for the respondent
Hearing details:
6 September 2023
Melbourne
Final written submissions:
Anthony Mallard: 9 August 2023
Balmaine Gold Pty Ltd: 24 August 2023
Printed by authority of the Commonwealth Government Printer
<PR765941>
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