Ian Wright v Gateway Equipment Parts & Services P/L

[2019] FWC 3760

[2019] FWC 3760

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ian Wright
v
Gateway Equipment Parts & Services P/L
(U2019/2865)

COMMISSIONER WILLIAMS PERTH, 31 MAY 2019

Termination of employment - jurisdiction.

[1] This matter involves an application made on 14 March 2019, by Mr Ian Wright (Mr Wright or the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Gateway Equipment Parts & Services P/L (Gateway or the Respondent).

[2] The application proceeded to conciliation but was not resolved and so has been referred to myself for determination.

[3] The Respondent employer has moved for the dismissal of this application because Mr Wright’s annual rate of earnings is above the current high income threshold of $145,400 applicable from 1 July 2018 (section 382(b)(iii)) and Mr Wright’s employment is not covered by a modern award (section 382(b)(i))  nor does an enterprise agreement apply (section 382(b)(ii)).

[4] Consequently, on 18 April 2019, I wrote to the parties inviting the Respondent to provide information to support their jurisdictional objection and then inviting Mr Wright to provide information in reply. The letter indicated that at this point it was proposed that the objection be determined on the papers but if necessary a hearing would be held.

[5] In compliance with the Commission's directions the Respondent provided submissions asserting that no enterprise agreement applied to the Applicant and that he was not covered by any modern award and finally that his earnings included a rate of pay of $150,000 per annum which exceeded the high income threshold of $145,400.

[6] The supporting materials provided by the Respondent included a contract of employment signed by the Applicant on 11 October 2017, showing amongst other things that his position title was Operations Manager and his rate of pay was $150,000 per annum. In addition a series of payslips for the Applicant were provided again confirming the rate of pay was $150,000 per annum.

[7] The Applicant did not respond within the timeframe required by the Commission and consequently I wrote to him allowing him a further 17 days in which to respond.

[8] Shortly thereafter the Applicant did provide a response advising that he had looked at the Commission's webpage and agreed he was over the high income threshold.

Conclusion

[9] The relevant section of the Act is section 382 which is set out below.

“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.”

[10] Based on the submissions provided by the parties, I find that no modern award covered the Applicant's employment nor was there an enterprise agreement applying to him in relation to his employment as the Operations Manager. I find that his annual rate of earnings was $150,000 per annum which exceeds the high income threshold.

[11] Consequently, I am satisfied that in terms of section 382 the Applicant was not a person protected from unfair dismissal and consequently the Commission is unable to order any remedy under section 390(1) of the Act.

[12] This application will be dismissed for want of jurisdiction and an order to that effect will be now be issued.

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