Matt Majeed v Greenland Holding Group
[2018] FWC 5655
•17 SEPTEMBER 2018
| [2018] FWC 5655 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Matt Majeed
v
Greenland Holding Group
(U2018/6436)
| Deputy President Dean | SYDNEY, 17 SEPTEMBER 2018 |
Application for an unfair dismissal remedy – minimum employment period – high income threshold – application dismissed.
At a hearing on 5 September 2018, I dismissed Mr Matt Majeed’s application for a remedy for unfair dismissal made under s.394 of the Fair Work Act 2009. These are the reasons for my decision.
Mr Majeed’s application, made on 21 June 2018, states that he commenced employment with Greenland Holding Group (Greenland) on 4 December 2017 and that his dismissal took effect on 15 June 2018.
On 9 July 2018, Greenland filed an Employers Response (form F3) objecting to the application on the grounds that Mr Majeed had not met the minimum employment period, and that he earnt above the high income threshold. Greenland asserted that Mr Majeed was dismissed from his employment on 24 May 2018.
Issues for determination
This decision is concerned with two questions:
a) whether Mr Majeed had completed the minimum employment period at the time of his dismissal; and
b) whether Mr Majeed earnt more than the high income threshold at the time of his dismissal.
Background
On 26 July 2018, correspondence was sent to Mr Majeed asking him to provide a response to Greenland’s contentions that he had not served the minimum employment period, and that he earnt above the high income threshold of $142,000.
On 31 July 2018, Mr Majeed provided a response to this correspondence. In his correspondence he asserted that he was:
a.paid the amount of $94,393, from 4 December 2017 to 7 June 2018, which was below the high income threshold of $142,000; and
b.employed from 4 December 2017 to 7 June 2018, and this period exceed the 6 month requirement. He also relied on a medical certificate indicating he was unfit for work from 30 May to 14 June 2018.
Greenland filed an outline of submissions and a statement of Mr Liu (Assistant Director of HR & Office) on 21 August 2018 in compliance with directions issued by the Commission.
Mr Majeed asserted that because he had lodged a complaint with the “Legal Commissioner” regarding the conduct of Greenland’s lawyer, he did not have to file material in response to the directions. He was advised by my Chambers that any complaint made to the Legal Commissioner was unrelated to this application, and if he wanted to proceed with this application, he needed to comply with the directions. Mr Majeed did not file any material despite the correspondence from the Commission requiring him to do so.
On 4 September 2018 correspondence was sent to the parties confirming that the hearing would take place the following day and that parties’ were required to attend.
Mr Majeed did not attend the hearing on 5 September 2018. After the scheduled commencement time, several unsuccessful attempts were made to contact him. I considered that Mr Majeed had been given ample opportunity to respond and be heard. In the circumstances, the hearing proceeded in his absence. Ms S Cai, solicitor, appeared for Greenland with permission and Mr Liu gave evidence on behalf of Greenland.
Relevant legislation
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.”
The high income threshold prescribed by the Fair Work Regulations 2009 was $142,000 (Regulation 2.13) at the relevant time.
Section 383 of the Act defines the minimum employment period as follows:
383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.
Submissions and evidence
Greenland submitted that Mr Majeed was employed for the period between 4 December 2017 and 24 May 2018. This was a period less than six months and therefore, it argued, Mr Majeed had not served the minimum employment period as required under s.382 of the Act.
It was also submitted that Mr Majeed’s annual salary was $183,648 plus superannuation which exceeded the high income threshold, being $142,000 at the relevant time.
Greenland’s submissions also included a further objection that Mr Majeed’s application was not made within the 21 day period as required by s.394(2) of the Act.
In support of its contentions, Greenland provided an employment contract signed by Mr Majeed[1] and a number of payslips issued to him which all stated that Mr Majeed’s annual salary was $183,648.00.
Mr Liu gave evidence that he met with Mr Majeed on 11 May 2018 to inform him of Greenland’s decision to terminate his employment on the basis of unsatisfactory performance. Mr Majeed was given the opportunity to tender his resignation by 14 May 2018 but chose not to do so. Mr Liu said that he advised Mr Majeed on 24 May 2018 that his employment was terminated with payment in lieu of notice and he was no longer required to attend work. Mr Liu said that he sent the letter of termination by email to Mr Majeed later that day.
Consideration and conclusion
There was no dispute that Mr Majeed commenced employment with Greenland on 4 December 2017.
Greenland did not claim to be a small business employer and the minimum employment period was therefore 6 months in Mr Majeed’s case.
It was clear on the evidence that Mr Majeed was given notice of his dismissal on 24 May 2018. This was confirmed by Mr Liu’s sworn evidence and a copy of the email sent to Mr Majeed on 24 May 2018 attaching the letter of termination was tendered and admitted into evidence[2].
The employment contract and payslips of Mr Majeed also clearly indicated that Mr Majeed’s remuneration included a base annual salary of $183,648.
On the unchallenged evidence before me, I was satisfied that Mr Majeed had not at the time of his dismissal completed the minimum employment period and that his annual rate of earnings exceeded $142,000.
I therefore found that Mr Majeed was not a person protected from unfair dismissal as prescribed by s.382 of the Act and his application must be dismissed. Given the finding, it was not necessary to consider Greenland’s objection as to whether the application was made out of time.
An order dismissing the application will issue with these Reasons.
DEPUTY PRESIDENT
Appearances:
S Cai, for Greenland Holding Group.
Hearing details:
2018.
Sydney.
September 5.
<PR700210>
[1] Exhibit 3.
[2] Exhibit 2.
Printed by authority of the Commonwealth Government Printer
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