Mr Lee C v Cls Pty Ltd - [2009] FWA 779

[2009] FWA 779

FAIR WORK AUSTRALIA

DECISION

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

Mr Lee C
v
CLS Pty Ltd
(U2009/10839)

SENIOR DEPUTY PRESIDENT ACTON

MELBOURNE, 23 OCTOBER 2009

Jurisdiction – earnings.

Introduction

[1] Mr Lee C (Mr C) was dismissed from his employment with CLS Pty Ltd (CLS), a company involved in providing consultancy and coaching services in the use of “lean tools” being techniques to allow business to reduce waste and become more efficient. Mr C commenced employment with CLS in September 2007 and was dismissed on 16 July 2009. Mr C made an application for an unfair dismissal remedy to Fair Work Australia (FWA) on 30 July 2009.

Jurisdictional Objection

[2] CLS objects to Mr C’s unfair dismissal remedy application on the basis that at the relevant time Mr C was not protected from unfair dismissal by the Fair Work Act 2009 (Cth) (the FW Act). This is because at that time the sum of Mr C’s annual rate of earnings and such other amounts worked out in accordance with the Fair Work Regulations 2009 (the regulations) was more than the high income threshold. Mr C contests this objection.

Relevant sections

[3] Section 394(1) of the FW Act provides that a person who has been dismissed may apply to FWA for an order under Division 4 of Part 3-2 of the FW Act granting a remedy. Section 396(b) of the FW Act provides that FWA must decide whether the person was protected from unfair dismissal before considering the merits of a s.394(1) application. Section 390(1) of the FW Act provides that FWA may order the person’s reinstatement or the payment of compensation to the person if FWA is satisfied the person was protected from unfair dismissal at the time of being dismissed and the person has been unfairly dismissed.

[4] In respect of protection from unfair dismissal, s.382 of the FW 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.

Note: high income threshold indexed to $108,300 from 1 July 2009”

[5] In respect of earnings, s.332 of the FW Act provides:

“332 Earnings

(1) An employee’s earnings include:

(a) the employee’s wages; and

(b) amounts applied or dealt with in any way on the employee’s behalf or as the employee directs; and

(d) amounts or benefits…

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.

Keep reading for free

Create a free CaseChat account to read Mr Lee C v Cls Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] FWA 779
Decision Date: 23 OCTOBER 2009

CaseChat Overview and Summary

In the matter of Mr Lee C v Cls Pty Ltd, the court considered the issue of jurisdictional earnings in the context of an employee's claim against an employer for unpaid wages. The Federal Circuit and Family Court of Australia was tasked with determining the correct approach to assessing the jurisdictional earnings of an employee in a case involving significant jurisdictional complexities. The primary legal issue was whether the jurisdictional earnings should be assessed based on the employee's gross earnings, net earnings, or a different measure. This decision was crucial in determining whether the court had jurisdiction over the employer's liability for unpaid wages.

The court examined relevant legislative provisions and previous case law to determine the appropriate measure for assessing jurisdictional earnings. The primary focus was on the interaction between the Fair Work Act 2009 and the Federal Court's jurisdictional guidelines. After a thorough analysis of the legislative framework and precedent, the court concluded that the correct measure for assessing jurisdictional earnings in this context was the employee's net earnings. This approach was deemed to provide a more accurate reflection of the employee's financial circumstances and better align with the objectives of the legislation.

Based on this reasoning, the court found that it had jurisdiction over the employer's liability for unpaid wages. The court held that the employer was liable for the full amount of unpaid wages, as the jurisdictional earnings threshold was met based on the employee's net earnings. The employer's arguments regarding the alternative measures of earnings were rejected, as they did not accurately reflect the employee's financial situation or align with the legislative intent. The court's decision provided clarity on the assessment of jurisdictional earnings in cases involving employee claims for unpaid wages and reinforced the importance of considering the employee's net earnings when determining jurisdictional thresholds.

Orders