Mr Rex George v Leighton Contractors Pty Ltd

[2013] FWC 3353

[2013] FWC 3353

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Rex George
v
Leighton Contractors Pty Ltd
(U2013/7512)

COMMISSIONER CLOGHAN PERTH, 28 MAY 2013

Application for relief from unfair dismissal.

[1] On 14 March 2013, Mr Rex George (Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from Leighton Contractors Pty Ltd (Employer).

[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] Conciliation did not proceed on 12 April 2013 and was referred to me for arbitration on 26 April 2013.

[4] In response to the application, the Employer asserts that the Commission has no jurisdiction to deal with Mr George’s application because, pursuant to paragraph 382(b)(i), (ii) and (iii) of the FW Act, he:

● earns more than the high income threshold of $123,300;
● is not covered by a modern award; and
● an enterprise agreement does not apply to his employment.

[5] To assist in the fair, efficient and effective resolution of the Employer’s jurisdictional objection, I issued procedural directions for a telephone conference to take place on 27 May 2013.

[6] The Employer provided its submission to Mr George on 14 May 2013. The Applicant provided a response to the Employer’s submission and his response on 23 May 2013.

RELEVANT STATUTORY FRAMEWORK

[7] Section 382 of the FW Act sets out who is protected from unfair dismissal.

● Division 2—Protection 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 $123,300 from 1 July 201

[8] Section 396 of the FW Act lays down the initial matters which must be considered before going to the merits of an application.

● 396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

CONSIDERATION

[9] The Employer’s submission and documentation sets out that Mr George:

● was employed pursuant to common law contract of employment;
● is not covered by a modern award;
● an enterprise agreement does not apply to his employment; and
● had an annual rate of earnings higher than the high income threshold.

[10] At the conference on 27 May 2013, Mr George did not dispute the Employer’s statement of facts or documentation, however, he wished to contest the procedural fairness of his dismissal.

[11] I advised Mr George that I was unable to enquire into the merits of his application until and unless I was satisfied that he was protected from unfair dismissal. This requirement is contained in s.396 of the FW Act.

[12] Having considered the submission of the Employer, documentation and that Mr George does not dispute the essential facts relating to his annual rate of earnings, the inapplicability of an enterprise agreement and that he is not covered by a modern award, I must uphold the Employer’s jurisdictional objection and dismiss the application because the Applicant is not protected from unfair dismissal. An Order to this effect will be issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

Final written submissions:

Applicant: 23 May 2013.

Respondent: 14 May 2013.

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