Anthony Orgill v NRG Industrial Pty Ltd
[2022] FWC 1437
•7 JUNE 2022
| [2022] FWC 1437 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Anthony Orgill
v
NRG Industrial Pty Ltd
(U2022/2576)
| DEPUTY PRESIDENT LAKE | BRISBANE, 7 JUNE 2022 |
Application for an unfair dismissal remedy – Jurisdiction– High income threshold – Jurisdictional objection – Jurisdictional objection upheld – Application dismissed.
This decision concerns an application for an unfair dismissal remedy under s.394 of the Fair Work Act (the Act) by Mr Anthony Orgill (the Applicant). NRG Industrial Pty Ltd (the Respondent) has raised a jurisdictional objection to the Applicant’s application proceeding on the basis that the Applicant was not a person protected from unfair dismissal at the time of his termination from employment with the Respondent, which took effect on 23 February 2022.
The jurisdictional objection arises because – it is claimed by the Respondent – the Applicant’s total rate of remuneration in the 12 months before his termination of employment exceeded the high income threshold.[1] As the Applicant’s employment was not covered by a modern award[2] or an enterprise agreement,[3] it was mandatory that the Applicant be able to prove that his income was below the high income threshold to be protected from unfair dismissal. At the date of the Applicant’s termination of employment, the high income threshold was $158,500.
A Hearing to determine this jurisdictional matter was listed for 6 June 2022. At the Hearing the Applicant was self-represented. The Respondent was represented by Mr Corey Marston, the Operations Manager of the Respondent. Prior to the Hearing, the Applicant and Respondent provided submissions which outlined their position regarding the jurisdictional objection.
Background
NRG Industrial Pty Ltd is an electrical contracting company that engages in construction, maintenance and repairs, project management, engineering, consultancy, and labour hire services.
On 9 December 2019, the Applicant was employed by the Respondent as a Projects Manager and Estimator. His role required him to win and run projects to grow the company.
On 19 February 2022, the Applicant was notified verbally of his dismissal by Mr Corey Marston, the Operations Manager.
On 23 February 2022, the Applicant was given a letter of termination effective immediately from Mr Grantley Jack, the Director. This letter cited misconduct and misrepresentation, resulting in poor reflection of the company’s culture and image as reasons for the Applicant’s dismissal.
On 1 March 2022, the Applicant filed a Form F2 – Unfair dismissal application with the Fair Work Commission (the Commission).
On 22 March 2022, the Respondent filed a Form F3 – Employer response form with a jurisdictional objection to the application.
Was Orgill a person protected from unfair dismissal?
The Respondent contended that the Applicant was not a person protected from unfair dismissal at the time of the alleged dismissal. The Act provides 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
(b) one or more of the following apply:
(i) a modern award covers the person;
(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.”
It is not in contention whether the Applicant had completed the minimum employment period as the Applicant meets this criterion.
The Applicant did not contest that he was not covered by a modern award or an enterprise agreement. Therefore, the Applicant will not be protected from unfair dismissal unless his remuneration was less than the high income threshold.
Was Orgill’s remuneration less than the high income threshold?
The Applicant did not dispute that his income exceeded the high income threshold. He acknowledged that his annual salary was $210,000. However, the Applicant forwarded to my Chambers a payslip dated 23 February 2022 that he had received from the company. It indicated that his base salary for the year to date was $107,787.91. The Applicant contended that the payslip proved he had earned less than the high income threshold and that he was a person protected from unfair dismissal.
The Applicant’s submission regarding the payslip is incorrect. Section 382 provides that a person is protected from unfair dismissal if relevantly, “the sum of the person’s annual rate of earnings … is less than the high income threshold.” What is relevant is the annual rate of earnings, not the earnings for the year to date.
The high income threshold that applied at the time of the Applicant’s dismissal was $158,500. Both the Applicant and Respondent during the Hearing confirmed that the Applicant’s annual salary at the time of dismissal was $210,000 per annum.
As the Applicant’s salary is above the high income threshold, it is not necessary to consider the Applicant’s benefits of a car and a mobile phone under the contract.
Conclusion
I am satisfied that the Applicant’s remuneration exceeded the high income threshold. Neither a modern award nor an enterprise agreement applied to him in relation to his employment. The Applicant was not a person protected from unfair dismissal. Accordingly, the Commission has no jurisdiction to order an unfair dismissal remedy.[4]
The Applicant’s application for an unfair dismissal remedy is dismissed, and an Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
[1] Fair Work Act 2009 (Cth) s 382(b)(iii).
[2] Ibid s 382(b)(i).
[3] Ibid s 382(b)(ii).
[4] Fair Work Act 2009 (n 1) s 390.
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