Ernie Roach v Arch Engineering Pty Ltd

[2012] FWA 4615

[2012] FWA 4615

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ernie Roach
v
Arch Engineering Pty Ltd
(U2012/4757)

COMMISSIONER WILLIAMS PERTH, 5 JUNE 2012

Termination of employment - identity of the employer - high income threshold.

[1] This matter involves an application by Mr Ernie Roach made under section 394 of the Fair Work Act 2009 (the Act). The respondent employer named in the application is Arch Engineering.

[2] A form F3−Employer’s Response to Application for Unfair Dismissal Remedy (the Employer’s Response) was lodged on behalf of Arch Engineering Pty Ltd.

[3] The Employer’s Response asserts that Mr Roach has never been employed by Arch Engineering. Rather it is asserted that he was employed by HD Plasma Cutting Services Pty Ltd (HD Plasma).

[4] The Employer’s Response also asserts that Mr Roach’s income “exceeds the high income threshold being in excess of $113,800” and therefore he is not entitled to make an unfair dismissal claim.

[5] I note that as of 1 July 2011 the high income threshold for the purposes of section 382(b)(iii) of the Act was in fact $118,100.

[6] The matter was the subject of a conciliation conference before a Fair Work Australia Conciliator but was not resolved and proceeded to hearing.

[7] The evidence on behalf of the respondent given by Mr Archibald, the Managing Director of Arch Engineering Pty Ltd (and a Director of HD Plasma) which is not challenged by Mr Roach is that he was not employed by Arch Engineering but rather by HD Plasma. Mr Roach’s terms and conditions of employment are set out in an agreement between himself and HD Plasma 1. Further Mr Roach’s payslips, an example of which was provided to the Tribunal2, are headed HD Plasma Cutting Services Pty Ltd. Finally Mr Roach’s PAYG payment summary for the year ending 30 June 2011 indicates that the employer’s name is HD Plasma & Laser Cutting Services Pty Ltd.

[8] Given the evidence before the Tribunal I accept the respondent’s objection is correct, that Mr Roach, the applicant, was not an employee of the named respondent, Arch Engineering or even of Arch Engineering Pty Ltd.

[9] The applicant has been aware of the objection raised by the respondent to his application. The applicant has not sought to amend the identity of the respondent employer and in any event as the respondent’s representative argued such a change may not have been allowed by the Tribunal even if the applicant had sought this amendment.

[10] Given the respondent was not the applicant’s employer this application should be now dismissed.

[11] For completeness I will consider the second of the respondent’s objections, that is that Mr Roach’s annual remuneration exceeded the high income threshold.

[12] The respondent chose to persist with this objection notwithstanding as can be seen from its original response the objection was probably based on a misunderstanding as to the quantum of the high income threshold.

[13] In summary the respondent argues that Mr Roach received a salary of $100,000 per annum, which Mr Roach concedes is correct and which is specified on his payslip.

[14] Further Mr Roach had the use of a Toyota Hilux ute provided by the respondent for both work and unrestricted private use. Mr Archibald gave evidence that he estimated the benefit to Mr Roach from this equated to an amount of somewhere between $15,000 and $20,000 per annum.

[15] The respondent also provided petrol for that vehicle and towards the latter part of 2011 also paid for fuel used by Mr Roach in another privately owned vehicle. Mr Archibald however was not able to estimate the value of this. Finally the respondent says Mr Roach enjoyed the use of a mobile phone provided and paid for by the respondent however again Mr Archibald was not able to put a value on the applicant’s usage of the phone.

[16] No evidence was given as to how much of the use of the vehicle supplied or the mobile phone was for personal rather than business use.

[17] In the circumstances then in my view the evidence put forward on behalf of the respondent is incomplete and does not allow a determination by the Tribunal as to whether the annual remuneration of Mr Roach exceeded the high income threshold of $118,100 or not. Consequently I am not satisfied that the respondent has made out its objection on this ground.

[18] As explained above the respondent employer in this case was not the employer of the applicant, Mr Roach. Mr Roach is not able to make an unfair dismissal claim against a business that was not his employer. Consequently this application must be dismissed and an order to that the effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

E Roach on his own behalf.

G McCorry on behalf of Arch Engineering Pty Ltd.

Hearing details:

2012.
Perth:
May 23.

 1   Exhibit R1.

 2   Exhibit R2.

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