McIlwraith v Toowong Mitsubishi Pty Ltd - [2012] FWA 3614

[2012] FWA 3614

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Warren McIIwraith
v
Toowong Mitsubishi Pty Ltd
(U2011/11162)

COMMISSIONER CRIBB

MELBOURNE, 30 APRIL 2012

Application for unfair dismissal remedy – jurisdiction - high income threshold - objection dismissed.

[1] This decision concerns an application by Mr Warren McIIwraith (the applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). It is alleged that the termination of his employment by Toowong Mitsubishi Pty Ltd (the respondent) was harsh, unjust or unreasonable. The applicant is seeking a remedy in respect of his dismissal.

[2] The respondent lodged a number of jurisdictional objections to the application. These were on the grounds that the applicant was not covered by a modern award or enterprise agreement; the applicant’s annual rate of earnings exceeded the high income threshold and that the termination of the applicant's employment was a genuine redundancy. A conciliation conference that took place via telephone on 27 September 2011 was unsuccessful.

[3] A hearing took place on Tuesday, 17 January 2012 which dealt with, in part, the respondent’s jurisdictional objections. The first ground was heard, namely, that the applicant was not covered by a modern award or enterprise agreement. It was common ground between the parties that the applicant was not covered by an enterprise agreement. Following submissions regarding whether or not the applicant was covered by a modern award, the Tribunal determined in transcript that Mr McIIwraith was not covered by a modern award. 1

[4] There was witness evidence and submissions from the parties regarding whether or not the applicant's annual rate of earnings exceeded the high income threshold. This aspect of the matter was unable to be finally determined due to a lack of information. Therefore, at the conclusion of the hearing, it was agreed that the parties would reach agreement regarding the number of kilometres travelled by Mr McIIwraith in the last financial year and that this would be forwarded to the Tribunal by Friday, 27 January 2012. The parties were also able to provide short additional submissions.

[5] In accordance with the basis on which the hearing ended on 17 January 2012, the respondent filed further written submissions on 27 January 2012 together with two additional affidavits from Mr Rinkevich and an affidavit from Mr Craig Henderson, General Manager of Beaudesert Motors Pty Ltd trading as Scenic Motors Beaudesert. All three affidavits had numerous documents attached. Mr McIIwraith also filed written submissions on 3 February 2012. It does not appear from the material before me that the parties were able to reach agreement on the number of kilometres travelled by Mr McIIwraith.

[6] On receipt of this information, together with the submissions (written and oral) and the witness evidence, the Tribunal was to reach a decision regarding the high income threshold objection on the papers. This is that decision.

HIGH INCOME THRESHOLD

[7] The second limb of the respondent's first jurisdictional objection…

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 McIlwraith v Toowong Mitsubishi Pty Ltd

Details

AGLC: McIlwraith v Toowong Mitsubishi Pty Ltd [2012] FWA 3614
Case: [2012] FWA 3614
Decision Date: 30 APRIL 2012

CaseChat Overview and Summary

McIlwraith brought proceedings against Toowong Mitsubishi Pty Ltd, seeking an unfair dismissal remedy. The case was heard in the Fair Work Commission, an Australian workplace relations tribunal. The dispute centred around the applicability of the high income threshold to the applicant's eligibility for an unfair dismissal remedy. Toowong Mitsubishi argued that the applicant's income exceeded the statutory threshold, which would disqualify him from receiving the remedy.

The central legal issue before the Commission was whether the high income threshold was applicable in this case and, if so, whether it effectively barred the applicant from claiming an unfair dismissal remedy. The applicant contended that the threshold did not apply, whereas Toowong Mitsubishi maintained that it did. The Commission had to interpret the relevant legislation and determine its scope and application to the facts of the case.

The Fair Work Commission found that the high income threshold did not apply to the applicant's case, dismissing the employer's objection. The Commission reasoned that the applicant's employment circumstances did not fall within the scope of the threshold provisions. Consequently, the applicant was eligible to seek an unfair dismissal remedy. The Commission's decision was based on a detailed analysis of the legislation and the specific facts of the case.

The Fair Work Commission dismissed Toowong Mitsubishi's objection and ruled in favour of the applicant, finding that the high income threshold did not apply in this instance. The applicant was therefore entitled to pursue an unfair dismissal remedy.

Orders