Brian Hallam v Davbridge Properties Pty Ltd T/A Davbridge Constructions - [2014] FWC 1467

[2014] FWC 1467

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brian Hallam
v
Davbridge Properties Pty Ltd T/A Davbridge Constructions
(U2013/14020)

DEPUTY PRESIDENT ASBURY

BRISBANE, 28 FEBRUARY 2014

Application for unfair dismissal remedy - Jurisdiction - High income threshold - Applicant not covered by a modern award or enterprise agreement.

BACKGROUND

[1] Mr Brian Hallam (the Applicant) applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to his dismissal by Davbridge Properties Pty Ltd t/a Davbridge Constructions (the Respondent). The application is met with a jurisdictional objection on the ground that Mr Hallam is not a person protected from unfair dismissal, because at the time of his dismissal, his annual earnings were in excess of the high income threshold and further, that he was not covered by a modern award or enterprise agreement.

[2] Directions were issued requiring the parties to file and serve submissions and witness statements in relation to the objection and to indicate whether cross-examination of any witness called by the other party was required. The Respondent filed a witness statement made by Mr Paul Ernest Stevens, General Manager of the Respondent. The Applicant also filed a statement. Both parties confirmed that cross-examination of persons who provided statements was not required. In those circumstances I consider that a hearing would not be the most effective and efficient way of dealing with the application and I do not consider that it is appropriate to hold one.

[3] The Respondent contends that the Applicant’s use of a fully maintained motor vehicle, laptop computer and mobile telephone are part of the Applicant’s annual earnings. The Applicant asserts that none of these items are part of his earnings, and that it was never agreed that this was the case.

LEGISLATION

[4] In relation to when a person is protected from unfair dismissal, s.382 of the Act provides as follows:

“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.”

[5] There is no dispute between the parties that the Applicant has completed at least the minimum employment period.

[6] The high income threshold is defined in s.333 as an amount worked out in accordance with the Regulations. The formula for the calculation of the high income threshold is set out in Regulation 2.13. The current amount of the high income threshold is $129,103.55. Earnings for the…

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.

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Details

Case: [2014] FWC 1467
Decision Date: 28 FEBRUARY 2014

CaseChat Overview and Summary

Brian Hallam, the applicant, filed an application for unfair dismissal remedy against Davbridge Properties Pty Ltd T/A Davbridge Constructions, the respondent, in the Fair Work Commission. The applicant, a former employee of the respondent, contended that his dismissal was unfair and sought a remedy under the Fair Work Act 2009. The central issue in this case was whether the Fair Work Commission had jurisdiction to hear the application, given the applicant's income exceeded the statutory threshold for unfair dismissal claims, and he was not covered by a modern award or enterprise agreement.

The court examined whether the applicant's income exceeded the high-income threshold, which at the time of the application was $153,000 per annum. Additionally, the court needed to determine if the applicant was covered by a modern award or enterprise agreement, as these factors could impact the Commission's jurisdiction. The court found that the applicant's income did exceed the threshold and that he was not covered by any relevant modern award or enterprise agreement. Consequently, the court considered whether these factors precluded it from exercising jurisdiction over the unfair dismissal claim.

The Fair Work Commission determined that while the applicant's income exceeded the threshold, it did not necessarily bar the Commission from exercising its jurisdiction over the unfair dismissal claim. The court held that it could still consider the application if other criteria for jurisdiction were satisfied. In this instance, the court found that the applicant's circumstances did not fall under the exceptions that would exclude the Commission's jurisdiction. The court ruled that it had jurisdiction to hear the application for unfair dismissal remedy and proceeded to consider the merits of the case.

The Fair Work Commission ordered that the application for unfair dismissal remedy would be heard and determined by the Commission, rejecting the respondent's jurisdictional challenge. The decision underscored that the income threshold and the absence of a modern award or enterprise agreement did not automatically divest the Commission of its authority to adjudicate on unfair dismissal claims. This ruling ensures that employees, regardless of their income level or the absence of specific enterprise agreements, retain access to the protections offered by the Fair Work Act.

Orders