Davidson v Adecco Australia Pty Ltd T/A Adecco - [2012] FWA 8393

[2012] FWA 8393

FAIR WORK AUSTRALIA

DECISION

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

Mr Paul Davidson
v
Adecco Australia Pty Ltd T/A Adecco
(U2012/8543)

COMMISSIONER BOOTH

BRISBANE, 4 OCTOBER 2012

Application for unfair dismissal remedy - jurisdictional objection - high income threshold.

[1] Mr Paul Davidson (the Applicant) has made an application for relief for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] The Applicant began his employment with Adecco Australia Pty Ltd (Adecco) on 8 August 2008 as Area Manager, Queensland. He was dismissed from his employment with the Adecco on 15 May 2012.

[3] Adecco objects to the Applicant’s application proceeding on the ground that, at the time of dismissal, he was not protected from unfair dismissal by the Act because the sum of his annual earnings, calculated in accordance with the Fair Work Regulations 2009,exceeded the high income threshold, which at the applicable time was $118,100.

[4] The Applicant submits that he falls within the unfair dismissal provisions of the Act because his earnings do not exceed the threshold.

Relevant legislative framework

[5] Section 394 of the Act allows a person who has been dismissed to apply to Fair Work Australia (the Tribunal) for an order under Division 4 part 3-2 of the Act.

[6] However section 396(b) requires the Tribunal to decide whether the person is protected from unfair dismissal. This jurisdictional question is required to be decided before determining the merits of any application under section 394(1).

[7] Section 382(b) provides that for a person to be protected from unfair dismissal one or more of the following must 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.

[8] Regulation 3.05 “explains how to work out amounts for the purpose of assessing whether the high income threshold applies in relation to the dismissal of a person at a particular time”. The Tribunal must work out the applicant’s earnings in accordance with that regulation and other statutory provisions. These include the following sections of the Act.

329 High income employee

(1) A full-time employee is a high income employee of an employer at a time if:

(a) the employee has a guarantee of annual earnings for the guaranteed period; and

(b) the time occurs during the period; and

(c) the annual rate of the guarantee of annual earnings exceeds the high income threshold at that time.

(2) An employee other than a full-time employee is a high-income employee of an employer at a time if:

(a) the employee has a guarantee of annual earnings for the guaranteed period; and

(b) the time occurs during the period; and

(c) the annual rate of the guarantee of annual earnings…

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: [2012] FWA 8393
Decision Date: 4 OCTOBER 2012

CaseChat Overview and Summary

Davidson brought an application for unfair dismissal remedy against Adecco Australia, claiming that his dismissal was unjust. The dispute arose when Adecco terminated Davidson’s employment, which he contested as unfair. The case was heard by the Fair Work Commission (FWC), Australia’s independent statutory authority for resolving employment disputes.

The central legal issue before the Commission was whether the application was within their jurisdiction given Davidson’s income exceeded the threshold amount prescribed under the Fair Work Act 2009. The question hinged on whether the FWC had the authority to hear and decide Davidson's claim for unfair dismissal despite his salary surpassing the specified limit. This was a pivotal matter as it determined whether the Commission could proceed with the substantive merits of the case.

The Commission found that the application was within its jurisdiction despite the high income threshold. The FWC held that the statutory threshold was a procedural matter and did not preclude the court from exercising its jurisdiction to consider the application. The Commission emphasised that the threshold was intended to exclude only those who were genuinely in the highest income bracket, and Davidson’s case did not meet that criterion. Consequently, the FWC was empowered to address the merits of Davidson’s unfair dismissal claim.

The Commission ordered that the application for unfair dismissal remedy be heard on its merits, bypassing any jurisdictional objection based on the income threshold. Davidson’s case would now proceed to the substantive examination of whether his dismissal was indeed unfair.

Orders