Mr Benjamin Eames v Valtech Digital Australia T/A Valtech Digital

[2017] FWC 6414

[2017] FWC 6414

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Benjamin Eames

v

Valtech Digital Australia T/A Valtech Digital

(U2017/11616)

Deputy President Dean SYDNEY, 4 DECEMBER 2017

Application for an unfair dismissal remedy.

1. Mr Benjamin Eames was employed by Valtech Digital Australia T/A Valtech Digital (the Respondent) until he was notified of his dismissal on 16 October 2017.

1. On 31 October 2017 Mr Eames made an application to the Fair Work Commission (the Commission) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his alleged unfair dismissal by the Respondent.

1. On 10 November 2017, the Respondent filed a Form F3 (Employer Response to Unfair Dismissal Application) objecting to the application on the basis that Mr Eames earned more than the high income threshold.

1. The Respondent’s basis for its objection was that Mr Eames had an annual salary of $200,000.

1. On the basis of the information contained in the application and the objection raised by the Respondent, correspondence was sent to Mr Eames on 14 November 2017 by email and by express post requiring a response from him in relation to the jurisdictional objection within seven days.

1. On 23 November 2017, further correspondence was sent to Mr Eames noting that he had previously been directed to provide a response to the Respondent’s jurisdictional objection but had not done so.  Mr Eames was given one further opportunity to provide a response and was asked to provide it by 4:00pm on 28 November 2017. Mr Eames was advised in the absence of any material being received, his application may be dismissed.

1. To date, Mr Eames has not replied to any of the Commission’s correspondence.

1. Section 382 of the Act provides:

382 When 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. At the time of Mr Eames’ dismissal, the high income threshold was $142,000. Mr Eames did not assert that he was covered by a modern award or that an enterprise agreement applied to him in relation to his employment.

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 Eames earned more than the high income threshold and 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 this effect will be issued shortly.

DEPUTY PRESIDENT

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