Mr Christopher White v NRW Holdings T/A NRW Civil and Mining

[2014] FWC 4003

[2014] FWC 4003

FAIR WORK COMMISSION

DECISION

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

Mr Christopher White
v
NRW Holdings T/A NRW Civil & Mining
(U2014/4312)

COMMISSIONER CLOGHAN PERTH, 24 JUNE 2014

Unfair dismissal.

[1] On 5 February 2014, Mr Christopher White (Mr White or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his employment with NRW Civil & Mining Contractors (Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act (FW Act).

[3] In response to the application, the Employer asserts that Mr White is not protected because:

● the sum of his annual rate of earnings was greater than the high income threshold of $129,300; and

● the Applicant was employed pursuant to a common law contract. Mr White was not covered by a modern award and an enterprise agreement did not apply to his employment.

[4] On 23 April 2014, I advised the parties that I intended to deal with the Employer’s jurisdictional objections by way of written submissions.

[5] There is no dispute between the parties that Mr White has completed the minimum period of employment with the Employer to meet the first condition to be protected from unfair dismissal as set out in s.382(a) of the FW Act.

[6] The Commission is required to consider two threshold jurisdictional questions to determine whether Mr White is protected from unfair dismissal. The questions are:

● Was Mr White’s annual rate of earnings, at the time of his dismissal, greater or less than the high income threshold? and

● Was Mr White’s employment covered by a modern award or did an enterprise agreement apply to his employment?

[7] These questions follow from the legislative provisions in the FW Act relating to unfair dismissals.

RELEVANT LEGISLATIVE FRAMEWORK

[8] Mr White is protected from unfair dismissal in accordance with s.382 of the FW Act.

“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.” (my emphasis)

[9] I now turn to the questions for determination.

CONSIDERATION

Was Mr White’s annual rate of earnings, at the time of his dismissal, greater than the high income threshold of $129,300?

[10] The Employer has provided a number of pay advice slips which clearly indicate that Mr White’s annual salary is significantly in excess of the high income threshold of $129,300. Mr White does not dispute the pay advice slips provided by the Employer.

[11] I find that Mr White’s annual rate of earnings at the time of his dismissal, greater than the high income threshold of $129,300.

Was Mr White covered by a modern award or did an enterprise agreement apply to his employment?

[12] Mr White was employed as a HSE Advisor.

[13] The Employer asserted on 19 March 2014, in its jurisdictional objection to Mr White’s application that he, “was on a Common Law Agreement”.

[14] In its submission on 30 April 2014, the Employer does not provide any documentary material in support of its assertion that Mr White is employed pursuant to a common law contract of employment.

[15] Mr White’s submission on 11 May 2014 does not address the Employer’s jurisdictional objection, but focuses on the conflicting reasons for his termination of employment and the manner in which it was effected.

[16] The Employer repeats its assertion on 14 May 2014 that Mr White was employed pursuant to a common law of contract. Further, that a modern award does not cover his employment or that an enterprise agreement applies to his employment.

[17] Mr White in response to the Employer’s submission on 19 May 2014 concedes that his annual income exceeds the high income threshold. Mr White does not oppose the Employer’s assertion that he is not covered by a modern award or an enterprise agreement applies to his employment. Similar to his previous submission, Mr White expresses the view that none of his concerns regarding the reasons for dismissal and the manner in which it was carried out, are addressed.

[18] I find that a modern award does not cover Mr White’s employment. Further, I find, for the reasons set out above, that an enterprise agreement does not apply to Mr White’s employment.

CONCLUSION

[19] Having considered these submissions, I find for the reasons set out above that Mr White is not protected from the unfair dismissal provisions of the FW Act and his application must be dismissed for want of jurisdiction. An order to this effect is issued conjointly with this decision.

COMMISSIONER

Final written submissions:

Applicant: 19 May 2014.

Respondent: 30 April and 14 May 2014.

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