DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jerome Monteiro
v
Valco Group Australia Pty Ltd
(U2017/13650)

COMMISSIONER BISSETT

MELBOURNE, 21 MARCH 2018

Application for an unfair dismissal remedy – jurisdictional objection - high income threshold – application dismissed.

[1] Mr Jerome Monteiro (Applicant) was employed by Valco Group Australia Pty Ltd (Respondent) as a Director of the Respondent, with control and management of the operations of the Respondent in Australia. He was responsible for the analyses and identification of market potential and business opportunities within the target market of the Respondent.

[2] The Applicant was dismissed from his employment with the Respondent on 6 November 2017 and has sought relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Respondent has raised a jurisdictional objection to the Fair Work Commission (Commission) dealing with the application as it says the Applicant earned above the high income threshold of $142,000 and was otherwise not covered by an award or enterprise agreement.

[3] The jurisdictional question must be determined prior to a consideration of the merits of the application.

[4] Prior to the hearing I granted the Respondent permission to be represented by a lawyer. The Applicant represented himself.

Is Monteiro protected from unfair dismissal?

[5] Section 382 of the FW Act outlines when a person is protected from unfair dismissal as follows:

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.

[6] It was not disputed that the Applicant has served the minimum employment period (his contract of employment having been signed on 28 August 2015). It is also not disputed that his employment was not covered by an award or enterprise agreement.

[7] A “high income” employee is defined in s.329 of the FW Act as follows:

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

(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…

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: [2018] FWC 1520
Decision Date: 21 MARCH 2018

CaseChat Overview and Summary

Jerome Monteiro sought relief from the Fair Work Commission against Valco Group Australia Pty Ltd for unfair dismissal. The central issue was whether Monteiro, who earned over the high income threshold, was eligible for the Commission's jurisdiction. The Commission found that the application was barred by the threshold and dismissed the application for lack of jurisdiction. Monteiro appealed to the Federal Court, arguing that the Commission had erred in its application of the jurisdictional threshold.

The court considered whether the Commission correctly interpreted the legislative provisions regarding the high income threshold for unfair dismissal claims. The threshold applies to individuals earning over a certain amount, excluding those whose claims relate to the termination of their employment. The court examined the legislative text and relevant case law to determine if Monteiro’s earnings disentitled him from the Commission’s jurisdiction. The court held that the Commission's decision was correct as Monteiro's income exceeded the threshold, and his claim was not related to the termination of employment.

In conclusion, the court upheld the Commission's decision, finding no error in its application of the jurisdictional threshold. The appeal was dismissed, and Monteiro's application for an unfair dismissal remedy was denied. The court affirmed that individuals earning over the specified threshold, and not directly related to the termination of their employment, are excluded from the Commission's jurisdiction.

Orders