Kodi Becket v Corporate Culture T/A Cult Design

[2018] FWC 7496

[2018] FWC 7496

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kodi Becket

v

Corporate Culture T/A Cult Design

(U2018/11353)

Deputy President Dean SYDNEY, 11 DECEMBER 2018

Application for an unfair dismissal remedy.

1. On 5 November 2018, Mr Kodi Becket made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

1. Mr Becket states that he commenced employment with Corporate Culture T/A Cult Design (Cult Design) on 16 October 2016 and that his dismissal took effect on 16 October 2018.

1. On 13 November 2018, Cult Design filed an Employer Response (form F3) objecting to the application on the grounds that Mr Becket had earnt more than the high income threshold and that his termination was a case of genuine redundancy.

1. On 28 November 2018, correspondence was sent to Mr Becket indicating that, based on the information contained in the Employer Response, it appeared he may have earnt above the current high income threshold of $145,400 per annum. The correspondence required Mr Becket to file a statement within seven days to support his claim of having of having earnt less than the high income threshold.

1. On 6 December 2018, correspondence was sent to Mr Becket noting that he had previously been directed to file a statement in support of his claim that he had earnt less than the high income threshold but had not done so. Mr Becket was given until 4pm on
   7 December 2018 to respond. Mr Becket was advised that in the absence of any material being received, his application may be dismissed.

1. Further attempts were made to contact Mr Becket by telephone on 6 and 7 December 2018.

1. To date, Mr Becket has not responded to the Commission.

1. Section 382 of the Act sets out the circumstances in which 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.”

1. The high income threshold prescribed by the Fair Work Regulations 2009 was $145,400 (Regulation 2.13) at the relevant time.

1. Section 587(1) of the Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

1. In the circumstances of this matter, I am satisfied Mr Becket did not earn less than the high income threshold and accordingly his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

1. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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