Robert Parker v AngloGoldAshanti Australia

[2020] FWC 2735

[2020] FWC 2735

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Parker
v
AngloGoldAshanti Australia
(U2020/2460)

COMMISSIONER WILLIAMS PERTH, 26 MAY 2020

Termination of employment - jurisdiction - high income threshold.

[1] This decision concerns an application made by Mr Robert Parker (Mr Parker or the Applicant) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is AngloGoldAshanti Australia (the Respondent).

[2] The Respondent objects to this application on the grounds that Mr Parker enjoyed annual earnings in excess of the high income threshold of $148,700 and so is not a person protected from unfair dismissal as prescribed in section 382 of the Act.

[3] Consequently, the Commission directed the parties to provide evidence and submissions regarding the Respondent’s objections. Both parties have provided materials to the Commission on this issue.

[4] This decision deals only with the Respondent’s jurisdictional objection and does not consider the merits of Mr Parker’s dismissal.

Factual findings

[5] Mr Parker was first employed by the Respondent in 2011 as an Electrical Technician.

[6] In 2014 he was promoted to the role of Electrical Coordinator reporting directly to the Maintenance Superintendent. His letter of promotion dated 29 August 2014 details this and advises that his remuneration as at that date was $150,000 per annum which included superannuation.

[7] In September 2015 Mr Parker was appointed as an Electrical Supervisor under the Mine Safety and Inspection Act 1994 (WA) and the Mine Safety and Inspection Regulations 1995 (WA) as an assistant to the Registered Manager at the Sunrise Dam Gold Mine. The letter of appointment notes his statutory duties include ensuring the efficient supervision of the installation, maintenance and testing of electrical equipment, stopping the use of any electrical equipment or installation considered to be dangerous and investigating and reporting to the Manager the details of any incident, injury or dangerous occurrence caused by electricity.

[8] A letter dated 11 July 2017 to Mr Parker from the General Manager: Sunrise Dam Gold Mine advised that his terms and conditions of employment are varied with his title changing to now be “Supervisor: Underground Electrical” reporting to the Superintendent: Underground Maintenance.

[9] I find that Mr Parker at the time of his dismissal was employed as the Underground Electrical Supervisor. This in fact it is stated by Mr Parker himself in answer to question 2.1 on the Form F2 – Unfair Dismissal Application he filed with the Commission and he signed that form stating that he did so in this particular capacity.

[10] At the time of Mr Parker’s dismissal the high income threshold referred to in section 382 of the Act was $148,700 per annum.

[11] I am satisfied on the evidence that at the time of dismissal Mr Parker’s annual rate of earnings was more than $148,700.

[12] There is no evidence that there is an enterprise agreement that applies to Mr Parker and his employment with the Respondent.

[13] I accept the Applicant did at times directly perform electrical work himself however the evidence demonstrates that the position in which Mr Parker was employed was principally a supervisory role.

Consideration

[14] Section 382 of the Act prescribes in what circumstances a person is protected from unfair dismissal. This is set out below.

“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.”

[15] If an employee is neither covered by a modern award nor an enterprise agreement and their annual rate of earnings, and other amounts, is more than the high income threshold then section 382 of the Act means they are not a person protected from unfair dismissal and so they are not able to make an application for an unfair dismissal remedy.

[16] Mr Parker has submitted that he is an employee covered by the Mining Industry Award 2010 (the Award) [MA000011].

[17] What is relevant when considering this question is the nature of the position he was employed in by the Respondent at the time of his dismissal which self-evidently is different from the position he was employed in when he was first employed in 2011. When Mr Parker was dismissed he was not an Electrical Technician he was employed in the position of the Respondent’s Supervisor: Underground Electrical.

[18] I have considered the terms of the Award and the position Mr Parker was employed in at the time of his dismissal and whilst I accept the Respondent would likely be covered by the Award for some of its employees I am not satisfied that Mr Parker was working in a classification prescribed in this Award.

[19] As has previously been held by the Commission the Award classifications do not cover employees who are principally employed in supervisory roles. 1

[20] Consequently, I find that the Award did not cover Mr Parker. There is no suggestion that any other modern award covered Mr Parker.

[21] I also find that there was no enterprise agreement that applied to Mr Parker’s employment.

[22] Finally as noted above the sum of Mr Parker’s annual rate of earnings exceeded the high income threshold.

[23] In this case Mr Parker was not covered by a modern award nor did any enterprise agreement apply to his employment and his annual rate of earnings was above the high income threshold. Therefore, under section 382 of the Act at the time of his dismissal Mr Parker was not a person protected from unfair dismissal. Consequently, he is not able to make this application.

[24] Accordingly, this application will be dismissed and an order [PR719642] will be issued to that effect.

Final written submissions:

Applicant, 19 and 30 April 2020.
Respondent, 22 April and 7 May 2020

Printed by authority of the Commonwealth Government Printer

<PR719641>

 1   See for example [2011] FWA 6927 and [2011] FWA 8092.