Brian Hamond v Terra Firma Pty Ltd - [2013] FWC 1229

[2013] FWC 1229

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brian Hamond
v
Terra Firma Pty Ltd
(U2012/14909)

COMMISSIONER JONES

MELBOURNE, 14 MARCH 2013

Application for Relief from Unfair Dismissal - Jurisdictional Objection - No Modern Award or Enterprise Agreement and the Annual Rate of Earnings is not less than High Income Threshold.

Introduction

[1] The Applicant, Mr Brian Hamond, lodged an application for remedy in relation to his dismissal on 8 November 2012. The Respondent, Terra Firma Pty Ltd, objects to the application on grounds that the Applicant is not a protected person under s.382 of the Fair Work Act 2009 (the Act) as he is not covered by a modern award or enterprise agreement and the annual rate of earnings is not less than the high income threshold.

[2] S.382 of the Act provides:

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.

Background

[3] There is no dispute that:

(a) The Applicant was employed by the Respondent from 6 September 2004 to 31 October 2012 (the date his dismissal took effect);

(b) The Applicant was employed for the minimum employment period within the meaning of the Act;

(d) On 7 September 2004, the Applicant signed a contract of employment. 1 Clause 1.3 of the contract of employment provides that:

‘Your initial role will be as Project Manager...’

(e) The Applicant’s qualifications are:

(i) Diploma of Engineering (Electronic) - Swimburne Institute of Technology, 1978;

(ii) Graduate Diploma of Management - Deakin University, 1996;

(iii) Master of Business Administration - Deakin University, 1996;

(iv) Bachelor of Laws - Deakin University, 2003; and

(v) PRINCE2 Practitioner, 2003.

Evidence and Findings of Fact

[4] Mr Bartels is the Managing Director. His evidence, which was not contradicted by the Applicant, is that the Respondent is a business and management consultancy firm which provides its clients with business analysts and project managers to implement a particular strategy, often being a business outcome or project. 2

[5] He described project management as involving the areas of scope, time, cost, risk, change management and stakeholder management. The scope sets out the schedule; namely commencement and end point of the project and the milestones in between. The project manager reports regularly to clients on the performance of the project, including costs given the scope. Time involves the adherence to 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: [2013] FWC 1229
Decision Date: 14 MARCH 2013

CaseChat Overview and Summary

Brian Hamond sought relief from unfair dismissal against Terra Firma Pty Ltd. The dispute arose from Hamond's termination of employment, which he claimed was unjust. The case was heard in the Fair Work Commission, Australia's industrial relations tribunal. The primary legal issue before the court was whether it had the jurisdiction to hear Hamond's application for relief from unfair dismissal. This hinged on whether Hamond's annual rate of earnings fell below the high income threshold stipulated by the Fair Work Act, and whether a modern award or enterprise agreement was applicable to his employment.

The court examined whether Hamond's employment was covered by a modern award or an enterprise agreement. It found that neither applied to Hamond's employment, as he was paid above the high income threshold, which exempts such employees from the coverage of modern awards or enterprise agreements. Consequently, the court determined that it did not have the jurisdiction to hear Hamond's application for relief from unfair dismissal. The court concluded that since Hamond's earnings exceeded the high income threshold and no applicable modern award or enterprise agreement existed, the application should be dismissed for lack of jurisdiction.

The court's reasoning was grounded in statutory interpretation and the specific provisions of the Fair Work Act. By establishing that Hamond's earnings were above the high income threshold, the court confirmed that the statutory criteria for jurisdictional acceptance were not met. Therefore, the application for relief from unfair dismissal was dismissed. The court's decision underscored the importance of accurately determining the applicable legal framework and thresholds in employment disputes, particularly in cases involving high-income earners.

Orders