Mr Stephen Keays v ECS Instruments Pty Ltd - [2013] FWC 1211

[2013] FWC 1211

FAIR WORK COMMISSION

DECISION

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

Mr Stephen Keays
v
ECS Instruments Pty Ltd
(U2012/12551)

COMMISSIONER CAMBRIDGE

SYDNEY, 22 FEBRUARY 2013

Unfair dismissal - jurisdictional objection - s.382 (b) whether sum of applicant’s annual rate of earnings is less than the high income threshold - objection dismissed - matter to proceed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 21 August 2012. The application was made by Stephen Robert Keays (the applicant), and the respondent employer has been identified to be ECS Instruments Pty Ltd (the employer).

[2] The application stated that the date that the applicant was notified of his dismissal was 17 August 2012. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act.

[3] The employer did not initially raise any jurisdictional objection to the application and the matter was the subject of unsuccessful conciliation. The matter was programmed for arbitration scheduled for December 2012.

[4] However, on 25 November 2012, Dooley & Associates solicitors, filed a Notice of Representative Commencing to Act (Form F53) together with an Objection to Application for Unfair Dismissal Remedy (Form F4). Consequently the matter proceeded to a Jurisdictional Hearing before the Fair Work Commission (the Commission) conducted in Sydney on 25 January 2013.

[5] The Jurisdictional Hearing involved the employer’s assertion that the applicant’s employment was not governed by a Modern Award or an Enterprise Agreement and that his annual rate of earnings exceeded the high income threshold. Consequently, the employer said that the applicant was not a person protected from unfair dismissal because of the operation of sub-section 382 (b) of the Act, (the s.382 (b) objection).

[6] At the Jurisdictional Hearing the employer was represented by Mr M Campbell, a solicitor, and the applicant appeared unrepresented. The employer adduced evidence from one witnesses, Mr Ricardo Arturi, the employer’s National Manager. The applicant gave evidence as a witness on his own behalf.

[7] There was no dispute that an Enterprise Agreement did not apply to the applicant’s employment. The question as to whether a Modern Award covered the applicant was not argued in any depth and it appeared that the applicant may have conceded that a Modern Award did not cover the work that he performed.

[8] The s.382 (b) objection concentrated upon that aspect of the sub-section (s.382 (b) (iii)) involving the sum of the applicant’s annual rate of earnings and such other amounts not being less than the high income threshold of $123,300.00 per annum.

[9] Section 382 of the Act is in the following terms:

“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…

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.

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Details

Case: [2013] FWC 1211
Decision Date: 22 FEBRUARY 2013

CaseChat Overview and Summary

The case of Mr Stephen Keays v ECS Instruments Pty Ltd involved a claim of unfair dismissal. Mr Keays, the applicant, alleged that he was unfairly dismissed by ECS Instruments Pty Ltd, the respondent. The Federal Court of Australia was tasked with resolving the jurisdictional objection based on the income threshold stipulated under section 382(b) of the relevant legislation. This section pertains to whether the applicant's annual rate of earnings falls below the high income threshold, which could impact the court's jurisdiction to hear the matter.

The court was required to determine whether Mr Keays's earnings were below the specified high income threshold. If his earnings exceeded this threshold, the court would lack jurisdiction to hear the unfair dismissal claim. The primary legal issue was thus to ascertain the applicant's annual earnings and compare them against the high income threshold. The court needed to establish whether Mr Keays's income fell within the parameters that would allow the court to proceed with the unfair dismissal claim.

The Federal Court examined the evidence presented by both parties regarding Mr Keays's annual earnings. After a thorough review of the submissions and evidence, the court found that Mr Keays's earnings did not exceed the high income threshold. Consequently, the jurisdictional objection was dismissed, and the matter was allowed to proceed. The court concluded that it had the requisite jurisdiction to hear the unfair dismissal claim brought by Mr Keays.

The final orders of the court were to dismiss the jurisdictional objection raised by the respondent and to allow the unfair dismissal claim to proceed. The matter would continue to be heard on its merits, with the court now able to address the substantive issues of whether Mr Keays was unfairly dismissed by the respondent.

Orders