Mr Shane Cornell v Wallis Drilling Pty Ltd
[2012] FWA 5794
•10 JULY 2012
[2012] FWA 5794 |
|
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Shane Cornell
v
Wallis Drilling Pty Ltd
(U2012/7587)
COMMISSIONER CLOGHAN | PERTH, 10 JULY 2012 |
Unfair dismissal.
[1] On 30 April 2012, Mr Shane Cornell (“the Applicant”) made application to Fair Work Australia (FWA) seeking a remedy for alleged unfair dismissal from his former employer, Wallis Drilling Pty Ltd T/A Wallis Drilling (“the Employer”).
[2] Mr Cornell was employed as a Safety and Environmental Manager. Mr Cornell’s employment was terminated with immediate effect on 17 April 2012.
[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).
[4] The Employer declined to participate in conciliation and requested that its jurisdictional objection be dealt with in the first instance.
[5] On 14 May 2012, the Employer asserted the following jurisdictional objections:
- the Applicant’s salary at the time of termination was $145,000 (plus superannuation) and accordingly exceeds the high income threshold of $118,100 as prescribed by the FW Act; and
- the terms and conditions of the Applicant’s engagement were contained in a common law contract of employment dated 8 October 2008 and a modern award or enterprise agreement does not apply to his employment.
[6] As a consequence of the jurisdictional objections in paragraph [5], the Employer contends that Mr Cornell is not protected by the unfair dismissal provisions in the FW Act and accordingly, the Tribunal has no jurisdiction to deal with Mr Cornell’s application.
[7] The matter was referred to me on 24 May 2012 and in view of the nature of the jurisdictional objections, I sought written submissions from the Employer and Applicant by way of procedural directions on 28 May 2012.
[8] Final submissions were received on 3 July 2012.
RELEVANT STATUTORY FRAMEWORK
[9] Section 382 of the FW Act provides for 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 $118,100 from 1 July 2011
CONSIDERATION
[10] It is not in dispute that the Applicant meets the minimum period of employment in accordance with paragraph 382(a) of the FW Act.
[11] It is also not in dispute that the terms and conditions of Mr Cornell’s employment are not contained in a modern award or enterprise agreement. Consequently, the provisions of s.382(b)(i) and (ii) are not applicable.
[12] Accordingly, for Mr Cornell to be protected by the unfair dismissal provisions of the FW Act, it is necessary that the sum of his annual rate of earning, and such other amounts (if any) in accordance with the Fair Work Regulations 2009, is less than the high income threshold.
[13] At the time of Mr Cornell’s dismissal, the high income threshold was $118,100.
[14] The Applicant states in his originating application that he commenced employment on 3 November 2008. The Applicant also attached to his originating application an unsigned offer of employment dated 8 October 2008 which has a commencement date of employment of 3 November 2008.
[15] The Employer relies upon a signed offer of employment dated 15 October 2008 as Mr Cornell’s common law contract of employment.
[16] I am satisfied that terms and conditions contained the offer of employment and agreed to by Mr Cornell, form part of his common law contract of employment with the Employer.
[17] The contract of employment contained a base salary of $120,000 which, self evidently, exceeds the high income threshold of $118,100.
[18] However, the question needs to be asked, what was Mr Cornell’s earnings as at the time of dismissal? In this respect, the Employer provided correspondence which advised the Applicant that his annual salary rate has been increased to $145,000. This amount is reflected in monthly salary of $12,083.33 as evidenced by pay slips provided by the Employer.
[19] I am satisfied that, at the time of Mr Cornell’s dismissal, his annual base salary, irrespective of any other amounts he received, was $145,000 and exceeded the high income threshold.
[20] Mr Cornell asserts in his submission that the common law contract entered into on 15 October 2008 was not binding on himself and the Employer. The Applicant provides no reasons for the assertion.
[21] The Employer submits that the parties did not enter into any other contract of employment during the period of Mr Cornell’s employment. Further, the Applicant has not substantiated his argument that the contract of employment was null and void.
[22] Irrespective of the submissions of the Applicant and the Employer, I am not required to determine whether the contract of employment was binding, or not, on the parties. The Tribunal has to be satisfied, in the circumstances of this application, that the Applicant’s annual rate of earnings is more than $118,100.
[23] From written and documentary material provided to the Tribunal, I am not satisfied that the Applicant has demonstrated that his annual rate of earnings was less than $118,100 at the time of his dismissal. Accordingly, Mr Cornell is not protected from unfair dismissal in accordance with the provisions of the FW Act. An order to this effect will be issued conjointly with this Decision.
COMMISSIONER
Final written submissions:
Applicant: 25 June 2012.
Employer: 3 July 2012.
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