Mr Blair Coull v Maps Group trading as Procurement Australia

[2014] FWC 3990

[2014] FWC 3990

FAIR WORK COMMISSION

DECISION

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

Mr Blair Coull
v
Maps Group trading as Procurement Australia
(U2014/4537)

DEPUTY PRESIDENT SMITH MELBOURNE, 18 JUNE 2014

Application for relief from unfair dismissal; jurisdiction raised—exceeding the high income threshold; application dismissed.

Introduction

[1] Mr B Coull alleges that his employment was terminated harshly, unjustly and unreasonably by MAPS Group (MAPS). In a letter to Mr Coull dated 3 February 2013, MAPS outlined conduct which it considered constituted serious misconduct. Mr Coull was summarily dismissed.

[2] In response to the application by Mr Coull, MAPS raised a jurisdictional objection namely that Mr Coull exceeded the high income threshold. This decision deals with that jurisdictional objection.

The legislative scheme

[3] Section 396 of the Fair Work Act 2009 (the Act) provides that the Fair Work Commission must decide certain matters before considering the merits. One of those matters is whether or not the person is protected from unfair dismissal.

[4] Section 382 provides for when a person is protected from unfair dismissal.

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.

Note: High income threshold indexed to $129,300 from 1 July 2013

[5] Section 333 of the Act is the amount prescribed by, or worked out in the manner prescribed by, the regulations. The regulations are not relevant for the purpose of this application. In this matter, it is argued by MAPS that Mr Coull is not protected from unfair dismissal as he exceeds the high income threshold of $129,300.

The facts and submissions

[6] There is no dispute that at the time of Mr Coull’s termination of employment he was earning an annual salary of $132,500. MAPS rely on the language of the Act which, in its submission, makes clear that the high income threshold is to be examined at the time of dismissal. MAPS drew attention to a decision of Bissett C (Slavin v Horizon Holdings Pty Ltd[2012] FWA 2424) which supported its proposition.

[7] Mr Coull argued that this approach was not consistent with the scheme of the Act when consideration is given to the compensation cap as defined under s.392(6)(a)(ii) of the Act which provides:

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal...

[8] Mr Coull argued that given he was recently given an increase in salary which took him over the high income threshold the same principle should apply as applies under s.392(6)(a)(ii) namely that the calculation should be of the previous 26 weeks employment immediately before the dismissal.

Conclusion

[9] Whilst I understand the argument raised by Mr Coull, in my view the Act does not support such a reading. As Commissioner Bissett made clear in her decision, the legislation requires the testing for the high income threshold at the time of the dismissal.

[10] It follows that I find that Mr Coull is not a person protected from unfair dismissal and his application for relief is dismissed.

DEPUTY PRESIDENT

Appearances:

B Coull on his own behalf

B Hoare and J Arena for the Respondent.

Hearing details:

2014.

Melbourne:

April, 24

Printed by authority of the Commonwealth Government Printer

<Price code A, PR552090>