C Rasmussen v Taylors Business Pty Ltd T/A Cash Converters Taylors Lakes

[2014] FWC 8581

[2014] FWC 8581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

C Rasmussen
v
Taylors Business Pty Ltd T/A Cash Converters Taylors Lakes
(U2014/9208)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 11 DECEMBER 2014

Application for relief from unfair dismissal – jurisdictional objection – high income threshold – application dismissed.

[1] The following decision, now edited, was given extempore on 28 November 2014.

[2] On 11 September 2014, Mr C Rasmussen (the Applicant) applied, under s.394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Taylors Business Pty Ltd T/A Cash Converters Taylors Lakes (the Respondent).

[3] On 5 October 2014, in its Employer Response (Form F3) the Respondent raised a jurisdictional objection to the application, on the basis that the Applicant earned more than the high income threshold ($133,000) at the time of the termination on 21 August 2014.

[4] This decision deals with and determines that jurisdictional objection.

[5] Relief from unfair dismissal under Part 3-2 of the Act is only available to a personprotected from unfair dismissal in that they have completed at least the minimum employment period (s.382(a)) and in s.382(b) of the Act if, at the time of their dismissal:

“(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 of $133,000 from 1 July 2014.”

[6] There is no issue as to the completion of the minimum period of employment by the Applicant. It is not contended by the Applicant that a modern award covers him or an enterprise agreement applies to him.

[7] Accordingly, the only issue for determination is whether or not the Applicant’s annual rate of earnings was less than the high income threshold of $133,000 from 1 July 2014. Earnings are defined in s.332 of the Act but it is unnecessary, in the current case, to go beyond a consideration of the wages of the Applicant, which form part of the earnings, which are assessed in accordance with the definition in s.332 of the Act.

[8] The “annual rate of earnings” is referable to the earnings at the time of dismissal (Zappia v Universal Music Australia Pty Limited, [2012] FWAFB 6108).

[9] There is no dispute that at the time of his dismissal, the Applicant was in receipt of wages at the level of $135,000, with his wage having been increased, with effect from 1 July 2014 from $130,000. The increase was paid from the week ending 3 August 2014 with back pay of the increase paid from 1 July 2014.

[10] The Applicant submitted that the $135,000 earnings incorporated a wage increase shortly before the dismissal which was unilaterally applied and was a contrivance directed to increasing the Applicant’s earnings beyond the high income threshold in order to preclude him from bringing an unfair dismissal claim under Part 3-2 of the Act. The Respondent denied this contention, relying on evidence that the wage increase was agreed with the Applicant in a meeting of 29 November 2013 in the context of the restructuring of the Respondent’s business for tax purposes, and given effect, in accordance with that agreement, at the same time wage increases for other staff, more generally were affected by the Respondent. The Applicant’s evidence was that there was no agreement on 29 November 2013 in respect of the wage increase, or at any other time.

[11] It is unnecessary to reach a finding in relation to the competing contentions in respect of the $5,000 increase in the Applicant’s wages which brought his wage (and earnings) to the level of $135,000 at the time of the termination. The Applicant’s wage was $135,000 at that time. The high income threshold was $133,000 at that time. Section 382(b)(iii) of the Act requires that an applicant’s annual rate of earnings at the time of dismissal is less than the high income threshold. That requirement is not qualified in s.382 or elsewhere in the Act.

[12] If I am wrong in that conclusion, I note, in any case that the evidence before me is that the $5,000 increase by the Respondent to the wage of the Applicant, was motivated to give effect to an agreement to do so with effect from 1 July 2014 which the Respondent believed was reached on 29 November 2013. The increase was given effect in early August 2014 at the same time as increases to some other employees. Whilst the Applicant believes, no doubt genuinely, that the Respondent’s motivation for increasing his wage was to preclude him from bringing an unfair dismissal claim, the evidence does not support such a motivation.

[13] I am satisfied that the Applicant’s annual rate of earnings at the time of his dismissal – $135,000 – exceeded the high income threshold of $133,000 applicable at the time and, as a result, the Applicant is not a person protected from unfair dismissal.

[14] I uphold the jurisdictional objection of the Respondent.

[15] The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

E Hannon for the Applicant.

N Borruso for the Respondent.

Hearing details:

2014.

Melbourne and Adelaide (video hearing):

November 28.

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