Jon Havier v Takeda Pharmaceuticals Australia Pty Ltd

[2019] FWC 8261

[2019] FWC 8261

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jon Havier
v
Takeda Pharmaceuticals Australia Pty Ltd
(U2019/9105)

DEPUTY PRESIDENT BOYCE SYDNEY, 5 DECEMBER 2019

Application for an unfair dismissal remedy — jurisdictional objection — whether an employee’s income exceeds the high income threshold — Zappia v Universal Music Australia Pty Limited [2012] FWAFB 6108 applied — jurisdictional objection upheld — application dismissed

Introduction

[1] On 15 August 2019, Mr Jon Havier (Applicant) lodged an application for an unfair dismissal remedy with the Fair Work Commission (Commission). The Applicant claimed he was unfairly dismissed by his former employer, Takeda Pharmaceuticals Australia Pty Ltd (Respondent), on 16 July 2019.

[2] The Respondent has raised several jurisdictional objections in respect of the Applicant’s claim. One of those objections is that the Applicant’s income exceeds the high income threshold imposed by joint operation of ss.333 and 382(b)(iii) of the Fair Work Act 2009 (Act).

[3] On 27 November 2019, I held a hearing (by telephone) to determine the jurisdictional objection raised by the Respondent. The Applicant appeared for himself. Mr Paul Brown (Partner, Baker McKenzie) appeared with permission for the Respondent.

[4] Having considered the evidence and submissions of the parties on this issue, I have determined that the Applicant’s income exceeds the limit imposed by the Act and that he is not a person protected from unfair dismissal. My reasons for this decision are as follows.

Relevant law

[5] Section 394 of the Act provides that a person who has been dismissed may apply to the Commission for an order granting a remedy.

[6] However, not all persons who are dismissed are protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) …

(b) one or more of the following apply:

…

(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.”

[7] The high income threshold is an amount prescribed and worked out by operation of reg.213 of the Fair Work Commission Regulations 2009. 1 Applying the calculation provided by that regulation, the threshold at the time of the Applicant’s dismissal is $148,700.00.

[8] The question before me is whether the Applicant was an employee that had an annual rate of earnings in excess of the high income threshold. If the answer to that question is “yes”, then the Applicant is not an employee captured by the definition provided for in s.382 of the Act.

Consideration

[9] In evidence filed prior to the hearing, the Applicant relied upon an employment contract between himself and the Respondent. The contract provides that the Applicant’s annual base salary is $150,000 (exclusive of superannuation).

[10] The Respondent pointed out that the Applicant’s annual base salary increased to $154,500 on 1 June 2018. The Applicant agreed that this figure was his contractual annual base salary at the time of his dismissal.

[11] That said, the Applicant submitted that his “actual” earnings at the time of his dismissal were only $118,446.17, which he says was the amount received by him during the twelve months prior. However, as the Full Bench stated in Zappia v Universal Music Australia Pty Limited T/A Universal Music Australia: 2

“Section 382 of the Act relevantly provides that a person is protected from unfair dismissal at a time if, at that time, 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. It is clear that the time at which the annual rate of earnings must be ascertained is at the time of the termination of the person's employment. What needs to be ascertained is the annual rate of earnings at that time, not the annual earnings to that time (the amount earned in the 12 months to that time)”.

[12] In applying the Full Bench’s reasoning, the Applicant’s submission on this point must be rejected because employment contract at the time of his dismissal provides a salary of $154,500.

Conclusion

[13] The Applicant’s annual rate of earnings exceeds the amount proscribed by s.333 of the Act. The Applicant is therefore not a person protected from unfair dismissal within the meaning of the Act.

[14] For the foregoing reason, the Applicant’s claim for an unfair dismissal is dismissed. An order to this effect will be issued in due course.

DEPUTY PRESIDENT

Appearances:

[15] The Applicant appeared for himself.

[16] Mr Paul Brown (Partner, Baker McKenzie) appeared for the Respondent.

Hearing details:

A hearing was held on 27 November 2019 by telephone.

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009, s.333.

 2   [2012] FWAFB 6108 at [9].