Mr James Linton v Cape Plc

[2016] FWC 8426

[2016] FWC 8426

FAIR WORK COMMISSION

DECISION

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

Mr James Linton
v
Cape PLC
(U2016/11519)

COMMISSIONER PLATT ADELAIDE, 23 NOVEMBER 2016

Termination of employment - high income threshold – application dismissed.

Background

[1] This decision concerns an application made by Mr James Linton for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Mr Linton was employed until his dismissal by Cape PLC (Cape).

[2] Cape contends that Mr Linton is not protected from unfair dismissal on the basis that his annual rate of earnings exceeds the current high income threshold (section 382(b) (iii) of the Act) and the applicant’s employment is not covered by a modern award (section 382(b) (i) of the Act) or enterprise agreement (section 382(b) (ii) of the Act).

[3] On 27 October 2016, a conciliation conference was conducted, at which time the Applicant’s representative Mr Amnon Kelemen withdrew. Unfortunately the applicant disconnected from the teleconference, was unable to be contacted and the conciliation conference concluded.

[4] The matter was allocated to me and listed for a directions conference on 25 November 2016.

[5] Mr Palmer attended the directions conference on behalf of Cape; Mr Linton did not attend, nor did any his representative Mr Kelemen. My Associate attempted to contact the Applicant however the telephone number listed on the application was disconnected. My Associate then spoke to Mr Kelemen who advised that he made several attempts to contact Mr Linton by telephone and email but Mr Linton’s telephone was disconnected and he had not replied by email. The Mr Kelemen advised that he would make a further, final attempt to contact Mr Linton before lodging a notice of representative ceasing to act.

[6] I proceeded with the directions conference and following the conference issued written directions which stated:

“[1] Mr Linton has lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth). From the information currently before the Commission it appears that pursuant to section 382(b) (iii), Mr Linton’s earnings exceed the high income threshold and therefore, he may be ineligible for protection from unfair dismissal.

[2] The FAIR WORK COMMISSION DIRECTS both parties to file in the Commission and serve on each other, by 4.00 pm 21 November 2016:

• An outline of their respective submissions in relation to the high income threshold;



• A witness statement for any witness to be called; and



• A copy of any document upon which they rely.

[3] If there are disputed facts between the parties, the matter will be listed for hearing by telephone before Commissioner Platt at 10.00 (WA time) on 25 November 2016. A Notice of Listing to this effect is attached.

[4] Mr Linton did not attend the directions conference listed on 10 November 2016. Mr Linton is advised that if he fails to lodge a submission in accordance with these directions, his application may be dismissed without further notice.”

[7] These directions were sent via express post to Mr Linton’s address and email as contained in his application, and to Mr Kelemen.

[8] On 7 November 2016, a notice of representative ceasing to act was received by Mr Kelemen.

[9] On 21 November 2016, my Associate attempted to telephone the Mr Linton but his phone number was disconnected.

[10] As at the date of this decision, Mr Linton has not filed any submissions nor contacted the Commission.

[11] Cape submitted the following documents:

• a copy of promotion letter to superintendent including yearly salary;
• a copy of common law contract of employment appointing the applicant to the role of supervisor;
• a position description outlining the applicant’s duties and responsibilities as a superintendent;
• evidence of payslips to demonstrate the applicant’s earnings; and
• the Applicant’s pay summaries.

Consideration

[10] Section 382 of the Act, set out below, prescribes 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.”

[11] Mr Linton was dismissed on 29 August 2016. With effect from 1 July 2016 the high income threshold referred to in s.382 (b) (iii) of the Act is $138,900.

[12] The Applicant’s contract of employment dated 10 December 2015 states that the Mr Linton’s guaranteed base salary was $150,000. The contract however contained provisions for Mr Linton to earn up to $236,000 per annum if he worked outside of Perth. The Applicant’s PAYG payment summary for the 2015 to 2016 financial indicates that the Applicant earned $241,956 gross.

[13] Mr Linton was engaged as Superintendent – Scaffold reporting to the Construction Manager. The supervisors reported to Mr Linton. A review of the Applicant’s job description clearly indicates that Mr Linton’s functions were beyond the scope of coverage of the Building and Construction General On-site Award 2010 and/or the Hydrocarbons Industry (Upstream) Award 2010. There is no evidence before me that Mr Linton was covered by an enterprise agreement or award.

Conclusion

[14] I find that Mr Linton’s annual earnings were greater than the high income threshold of $138,900 and that Mr Linton is not covered by an award or enterprise agreement. Accordingly Mr Linton is not a person protected from unfair dismissal and is not entitled to make an unfair dismissal application.

[15] Consequently I uphold Cape’s objection to Mr Linton’s application which must be dismissed. An order to that effect will be issued.  1

COMMISSIONER

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