Brian Cowan v I.P.C Pty Ltd

[2023] FWC 514

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brian Cowan
v

I.P.C. Pty Ltd

(U2022/12220)

DEPUTY PRESIDENT BEAUMONT PERTH,10 MARCH 2023

Application for an unfair dismissal remedy

1. Issue and outcome

1. This decision concerns a jurisdictional objection raised by I.P.C Pty Ltd (the Respondent) in response to an unfair dismissal application brough by Mr Brian Cowan (the Applicant) under s 394 of the Fair Work Act 2009 (Cth) (the Act). 

1. The Respondent submitted that the Applicant earned more than the high income threshold and is therefore excluded from making this application by virtue of s 382(b)(iii) of the Act.

1. It is uncontentious that the Applicant was not covered by a modern award and an enterprise agreement did not apply to him in his employment. Therefore, the inclusions of s 382(b)(i) or (ii) are not triggered.

1. The Applicant rejects the assertion that at the time of his dismissal, on 15 December 2022, his annual income was above the high income threshold of $162,000.00 and maintains that he is eligible to make an unfair dismissal claim pursuant to s 382 of the Act. If this condition can be established, the Respondent’s objection will be dismissed. Therefore, the primary question to be determined is whether the Applicant’s annual rate of earnings exceeded the high income threshold. Briefly stated, I have found that they did not.

1. Background

1. The Applicant commenced employment with the Respondent in or around 2008 in a casual position.  The Applicant commenced full-time employment with the Respondent in or around 2015 in the position of Mechanical Maintenance Supervisor and was subsequently promoted to Mechanical Superintendent in or around November 2019. 

1. An employment agreement confirming the Applicant’s terms and conditions of employment was entered into by the parties on or around April 2016 (the Contract).  According to the Applicant, with the exception of an increase to the Applicant’s hourly rate of pay entered into on or around 20 January 2020, no further agreement has been entered into by the parties to vary the terms and conditions of the Applicant’s employment.

1. Clause 4.1 of the Contract describes the Applicant’s remuneration as follows:

The Company will remunerate the Employee as follows:

a)An hourly base rate of $50.00 per hour;

b)An hourly overtime rate of $53.00 per hour for overtime worked in excess of 40 hours per week and outside of the normal business hours;

c)Rates of pay may be increased subject to suit business requirements, without prior consent.  Rates of pay will not be decreased without prior consent;

d)provision of company vehicle;

e)superannuation in accordance with Australian statutory requirements in place from time to time, and at a minimum rate currently being not less than 9.5% of the Annual Salary set out in 4.1(a) above;

f)reimbursement for all travel and other business expenditure reasonably incurred by his in connection with the discharge of his duties in terms of this Agreement provided the claims are submitted and approved in accordance with the Company’s usual procedures from time…