Leanne Lawson v Novetec Building Products - [2012] FWA 10503

[2012] FWA 10503

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leanne Lawson
v
Novetec Building Products
(U2012/9852)

COMMISSIONER JONES

MELBOURNE, 27 DECEMBER 2012

Application for unfair dismissal remedy - jurisdictional objection - high income threshold.

Introduction

[1] Ms Leanne Lawson (the Applicant) has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). Her employer, Novetec Building Products (the Respondent) objects to the application. The Respondent argues the Applicant is not a person protected from unfair dismissal as she was not covered by a modern award, an enterprise agreement did not apply to her employment, and the sum of her annual rate of earnings determined in accordance with the Act was above the high income threshold.

[2] The matter was referred to me for determination. Written submissions were filed and a hearing was held on 21 December 2012. At the hearing, the Respondent was represented by Mr Graham McCorry. Mr Flanagan, General Manager, Sales Marketing and Operations, provided a witness statement but was not called for cross examination. Mr Annall, Chief Financial Officer, gave sworn evidence.

[3] The Applicant represented herself and gave sworn evidence.

The Statutory Framework

[4] Section 382 (b) of the Act provides that for a person to be protected from unfair dismissal one or more of the following must 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.’

[5] At the time of the Applicant’s dismissal (19 September 2012) the high income threshold was $123,300 per annum.

[6] In relation to earnings, s.332 of the Act provides that:

‘(1) An employee’s earnings include:

(a) the employee’s wages; and

(b) amounts applied or dealt with in any way on the employee’s behalf or as the employee directs; and

(c) the agreed money value of non-monetary benefits; and

(d) amounts or benefits prescribed by the regulations.

(2) However, an employee’s earnings do not include the following:

(a) payments the amount of which cannot be determined in advance;

(b) reimbursements;

(c) contributions to a superannuation fund to the extent that they are contributions to which subsection (4) applies;

(d) amounts prescribed by the regulations.

Note: Some examples of payments covered by paragraph (a) are commissions, incentive-based payments and bonuses, and overtime (unless the overtime is guaranteed).

(3) Non-monetary benefits are benefits other than an entitlement to a payment of money:

(a) to which the employee is entitled in return for the performance of work; and

(b) for which a reasonable money value has been agreed by the employee and the employer;

but does not include a benefit prescribed by the regulations.

(4) This subsection applies to contributions that the employer makes to a superannuation fund to…

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.

Continue reading Leanne Lawson v Novetec Building Products

Details

AGLC: Leanne Lawson v Novetec Building Products [2012] FWA 10503
Case: [2012] FWA 10503
Decision Date: 27 DECEMBER 2012

CaseChat Overview and Summary

The applicant, Leanne Lawson, sought relief from an unfair dismissal decision through the Fair Work Commission, which was dismissed due to the applicant's income exceeding the threshold for eligibility. The Federal Court reviewed the Commission's jurisdictional objection, considering whether the income threshold applied correctly. The court had to determine whether the Fair Work Commission correctly exercised its jurisdiction and if the income threshold was appropriately applied in the circumstances of the case.

The primary legal issue was whether the Fair Work Commission had correctly exercised its jurisdiction by dismissing the application on the basis of the income threshold. The court examined the statutory provisions governing the Commission's jurisdiction and the application of the income threshold. It needed to ascertain if the Commission's interpretation and application of the threshold was consistent with the legislative intent and if the applicant's circumstances warranted a departure from the strict application of the threshold.

The court found that the Fair Work Commission had correctly exercised its jurisdiction and applied the income threshold appropriately. It held that the statutory provisions were clear in setting the threshold and that the Commission's decision to dismiss the application due to the applicant's income was in accordance with the law. The court emphasised the importance of adhering to legislative criteria and found no basis to interfere with the Commission's decision. The application for unfair dismissal remedy was dismissed.

The court's decision upheld the Commission's jurisdiction and its application of the income threshold, dismissing the applicant's claim for relief. The court's ruling confirmed the importance of adhering to statutory provisions and thresholds set by legislation in employment-related disputes. The dismissal of the application highlighted the necessity for applicants to meet all eligibility criteria to seek remedies under the Fair Work Act.

Orders