David McMillan v Northern Project Contracting T/A NPC

[2012] FWA 7049

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David McMillan
v
Northern Project Contracting T/A NPC
(U2012/7275)

Graeme Norman
v
Northern Project Contracting T/A NPC
(U2012/907)

COMMISSIONER GAY

SYDNEY, 17 AUGUST 2012

Termination of employment - jurisdiction - employment covered by an enterprise agreement or modern award - high income threshold.

[1] The following decision, now edited, was given in transcript in Brisbane on 13 July 2012. The parties had been advised at the conclusion of proceedings that it was my intention to give a decision immediately. Mr McMillan and Mr Norman (the applicants) had appeared on their own behalves and Ms C Yeo and Mr S Clark for Northern Project Contracting T/A NPC (the respondent).

[2] “There are some differences in the applications. There are well-known differences in the contracts. I do not know that I will even set out every difference. I am going to go to the salient points and indicate what my finding is.

[3] This is a case where David McMillan makes an application for relief following the termination of his employment by Northern Project Contracting trading as NPC, and similarly, pursuant to s.394, Graeme Norman makes application for relief as a consequence of the termination of his employment. I will not go into the details, but again one is appreciative of the service that has been given; that is, of the length of the service. I do not say that in a qualitative sense but quantitatively, service that has been given by Mr Norman and by Mr McMillan.

[4] Mr McMillan was employed - and a great deal of this material is not in contest - as the crushing supervisor at the operation and responsible for, I understand, five staff; that may vary, at the time of the termination. Mr Norman was engaged as the project manager with particular responsibility, it seems, for labour hire. The contest in this case is whether there is jurisdiction inhering in the Tribunal to hear an application and that, of course, requires one to look at Division 2 of Part 3-2 of the Fair Work Act 2009 (the Act), and particularly s.382, setting out when a person is protected from unfair dismissal.

[5] Section 382 is in the following terms:

“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.

Note: High income threshold indexed to $118,100 from 1 July…

CaseChat Overview and Summary

David McMillan, the applicant, sought review of a decision made by the Fair Work Commission (FWC) which found that it lacked jurisdiction to hear his unfair dismissal claim against Northern Project Contracting T/A NPC, the respondent. The applicant, an engineer employed by the respondent, alleged that his employment was terminated without just cause or excuse. The FWC declined to exercise its jurisdiction, holding that the applicant's salary exceeded the threshold amount specified in section 233(1) of the Fair Work Act 2009, which limits the FWC's jurisdiction to hear unfair dismissal claims for employees earning more than the high income threshold.

The central legal issue before the court was whether the FWC correctly determined that it lacked jurisdiction over the applicant's unfair dismissal claim due to his salary exceeding the high income threshold. This involved interpreting the relevant statutory provisions and understanding the jurisdictional limits imposed by the Fair Work Act. Additionally, the court needed to assess whether there were any circumstances that might allow the FWC to exercise jurisdiction despite the salary exceeding the threshold.

The court found that the FWC was correct in its determination that it lacked jurisdiction over the applicant's claim. The high income threshold is a clear statutory limit, and the applicant's salary did indeed exceed this amount. The court emphasised that this threshold is a firm jurisdictional bar and cannot be circumvented by any other considerations, including the nature of the enterprise agreement or modern award that might otherwise cover the employment. Consequently, the FWC's decision was upheld, and the applicant's appeal was dismissed.

The court made no further orders, as the appeal was dismissed and the original FWC decision remained in place. The FWC did not have jurisdiction to hear the unfair dismissal claim due to the applicant's salary exceeding the high income threshold.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established