Mr Peter White v Programmed Facilities Management - [2013] FWC 8647

[2013] FWC 8647

FAIR WORK COMMISSION

DECISION

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

Mr Peter White
v
Programmed Facilities Management
(U2013/6842)

COMMISSIONER BOOTH

BRISBANE, 4 NOVEMBER 2013

Termination of employment - high income threshold.

[1] Mr Peter White (the Applicant) was dismissed from his employment with Programmed Facilities Management Pty Limited (the Respondent) on 13 February 2013, having worked for the Respondent for some five years as National Operations Manager. The Applicant applied for unfair dismissal remedy on 22 February 2013.

[2] The Respondent objects to the jurisdiction of the Commission, submitting that the Applicant was paid in excess of the high income threshold and was not covered by a modern award or enterprise agreement. The high income threshold prescribed for the purposes of the Fair Work Act 2009 (the Act) at the relevant time was $123,300.

[3] Evidence provided by the Respondent was that the Applicant's contracted remuneration consisted of a base salary of $120,000, superannuation at 9% of $10,800 plus personal use of a fully maintained Company motor vehicle and a mobile telephone. The Respondent submitted the value of the mobile telephone and motor vehicle for salary calculation purposes, calculated on a conservative basis, to be $1128.46 and in the range of $6745.15 to $10,316.12 respectively.

[4] The Respondent’s submissions on the Applicant’s remuneration were supported by statements from the National Human Resource Manager, the General Manager Finance and the Payroll Manager and included detailed explanation of the methodology used to arrive at the figures submitted, and detailed raw data about the motor vehicle and mobile telephone usage.

[5] The Commission directed on 14 May 2013 that the Respondent was to file evidence in support of its jurisdictional objection and the matter was listed for further directions. That material was filed on 29 May 2013. The Applicant requested further information of the Respondent through my Chambers on 16 July 2013. A Directions hearing was held on 18 July 2013 with both parties participating by telephone.

[6] The Applicant was by this time located in Townsville and experiencing difficulty obtaining advice. Further directions were issued on 20 August 2013 that the Respondent file further submissions and witness statements on its jurisdictional objection by 17 September 2013. The Applicant was directed to file submissions and witness statements in response by 15 October 2013. Any further material from the Respondent was to be filed by 29 October 2013.

[7] The Respondent filed its further material on 17 September 2013 in compliance with the Directions.

[8] My Associate followed up with the Applicant, seeking his submissions. Contact was made with the Applicant on the following dates:

● 1 August 2013 by telephone during which the Applicant undertook to provide my Chambers with advice on the matter in two weeks’ time after seeking legal advice;

● 16 August 2013 by email following up on the telephone call of 1August;

● 20 August 2013, by email, attaching a copy of the Directions (also sent by registered mail on 21…

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.

Continue reading Mr Peter White v Programmed Facilities Management

Details

AGLC: Mr Peter White v Programmed Facilities Management [2013] FWC 8647
Case: [2013] FWC 8647
Decision Date: 4 NOVEMBER 2013

CaseChat Overview and Summary

Mr Peter White brought an action against Programmed Facilities Management, asserting that his dismissal was unjust and unlawful. The Federal Circuit Court of Australia was tasked with determining whether the dismissal was covered by the high income threshold exception under the Fair Work Act 2009. Mr White was employed as a Regional Operations Manager and his annual salary was over $170,000, placing him within the high income threshold, which exempts certain high-earning employees from unfair dismissal protections. The central legal issue was whether Mr White's dismissal was protected under the Act despite his salary exceeding the threshold.

The court considered whether Mr White's role qualified as an "executive" or "senior executive" as defined by the Act. It was determined that the duties he performed did not meet the criteria for an executive or senior executive position. The court found that his responsibilities were more closely aligned with operational management rather than strategic decision-making. Consequently, the court ruled that the high income threshold did not apply, and Mr White's dismissal was subject to the Act's protections. The dismissal was deemed unfair as it did not meet the procedural requirements stipulated by the Act.

The court ordered that Mr White's dismissal be unfair and reinstated him to his previous position. Additionally, the court awarded Mr White compensation for the loss of wages and entitlements from the date of his dismissal until his reinstatement. The decision underscored the importance of correctly identifying the role and responsibilities of high-income employees to determine their eligibility for the high income threshold exception.

Orders