Nigel Scarborough v Sandfire Resources Nl T/A Sandfire Resources Nl

[2017] FWC 947

[2017] FWC 947 [Note: An appeal pursuant to s.604 (C2017/1040) was lodged against this decision - refer to Full Bench decision dated 7 June 2017 [[2017] FWCFB 3105] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nigel Scarborough
v
Sandfire Resources NL T/A Sandfire Resources NL
(U2016/12820)

COMMISSIONER PLATT ADELAIDE, 15 FEBRUARY 2017

Termination of employment – high income threshold – whether an enterprise agreement or modern award applies – applicant’s remuneration exceeds high income threshold –employment not covered by a modern award – application dismissed.

Background

[1] This decision concerns an application made by Mr Nigel Scarborough for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) in respect of his employment by Sandfire Resources NL T/A Sandfire Resources NL (Sandfire).

[2] Sandfire contends that Mr Scarborough is not protected from unfair dismissal on the basis that his annual rate of earnings exceeds the current high income threshold 1 and the applicant’s employment is not covered by a modern award2 or enterprise agreement.3

[3] With effect from 1 July 2016, the high income threshold referred to in s.382(b)(iii) of the Act is $138,900.

[4] Mr Scarborough contends that although his annual rate of earnings exceeds the high income threshold, he was covered by the Manufacturing and Associated Industries and Occupations Award 2010 [MA000010] (the Manufacturing Award) and as a result of s.382(b)(i) of the Act he is a person protected from unfair dismissal.

[5] On 2 December 2016, directions were issued for the parties to file material in support of their application by 9 December 2016 with any material in reply to be provided by 16 December 2016. Submissions and submissions in reply were received by both parties.

[6] Mr Scarborough also provided a witness statement.

[7] Sandfire provided witness statements from:

• Paul Richard Sheppard – Maintenance Manager;



• Martin Richard Reed – Chief Operating Officer;



• Janine Sandra Collier – Human Resources Manager; and



• John Richard Fraser – Process Manager.

[8] Mr Scarborough’s position is summarised as follows;

• He commenced employment with Sandfire on 24 March 2012 as a Mechanical Supervisor.



• During his employment, he performed work at the DeGrussa Copper Mine and also in Sandfire’s workshop.



• His key responsibility was the day to day maintenance of Sandfire’s plant and equipment which included a range of industrial machinery.



• A large part of his role involved supervising and coordinating two maintenance crews comprised of five fitters, one boilermaker, one boilermaker apprentice and one mechanical fitter apprentice. However, approximately twice a week sometimes during afterhours call out work, he performed maintenance, fault finding and repairs on Sandfire’s plant and equipment.



• The duties undertaken as part of the supervisory role included:

a) Carrying out workplace inspections and related paperwork;

b) Performing safety inspections on equipment, maintenance crews, operational employees and contractors;

c) Investigating safety incidents;

d) Checking and signing off on JHA’s, permits to work, and isolations;

e) Training of maintenance staff and contractors;

f) Training, supervising, and…