Johann Roos v WBHO Civil Pty Ltd

[2015] FWC 2511

[2015] FWC 2511

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Johann Roos
v
WBHO Civil Pty Ltd
(U2015/2786)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 APRIL 2015

Application for relief from unfair dismissal.

[1] Mr Johann Roos was employed by WBHO Civil Pty Ltd (WBHO) until his employment was terminated on 7 January 2015. Mr Roos lodged an unfair dismissal application and WBHO objected to the application because it said Mr Roos earned more than the high income threshold and that the application was lodged out of time.

[2] On 10 April 2015, I conducted a telephone conference in relation to this matter. I granted Ms Moltini permission to appear for WBHO. Ms Moltini submitted that while there was no complexity associated with the high income objection some complexity arose in relation to Mr Roos’ extension of time application. She also submitted that it would be unfair to require Mr O’May to represent WBHO as he was not familiar with Commission procedures and was a witness in the matter. Mr Roos did not oppose the application and I granted permission because I accepted that submission that it would be unfair not to permit WBHO to be represented.

[3] At the conclusion of the conference I dismissed Mr Roos’ application because his income exceeded the high income threshold and it was not contested that his employment was not covered by a modern award or agreement. These are my reasons for that decision.

[4] WBHO submitted that Mr Roos’ hourly rate of pay excluding superannuation was $78.67 per hour. Mr Roos submitted that in the financial year 2014/15 he earned $77,700 which was less than the high income threshold. Mr Roos whilst submitting that he was paid a monthly salary did not dispute the $78.67 per hour rate. His annual rate of earnings was therefore at least $155451.92.

[5] S.333 provides that the high income threshold is the amount prescribed by or worked out in the manner prescribed by the regulations. The current high income threshold is $133,000.

[6] S.382 provides that an employee is not protected from unfair dismissal if the sum of the person’s annual rate of earnings and such other amounts (if any) is equal to or more than the high income threshold.

[7] Regard has to be had to Mr Roos’ annual rate of earnings not how much he had earned in the last financial year. In this case Mr Roos’ annual rate of earnings was at least $155,451.92 at the time of his dismissal and as such he was not protected from unfair dismissal. Accordingly his application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr J Roos on his own behalf.

Ms T Moltoni for the Respondent.

Hearing details:

2015.

Melbourne, Perth and Brisbane via telephone:

10 April.

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