Rodney Wegner v Kresta Holdings Limited
[2012] FWA 5356
•28 JUNE 2012
[2012] FWA 5356 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rodney Wegner
v
Kresta Holdings Limited
(U2012/5729)
COMMISSIONER WILLIAMS | PERTH, 28 JUNE 2012 |
Termination of employment - high income threshold - modern award coverage - extension of time.
[1] This matter involves an application made by Mr Rodney Wegner (the Applicant) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Kresta Holdings Limited (the Respondent).
[2] This matter was the subject of a conciliation conference with a Fair Work Australia Conciliator however the matter was not resolved and has been referred to me for determination.
[3] The Applicant was employed as the Respondent’s Production and Product Manager.
[4] The Applicant was dismissed on 7 September 2011. At the time the Applicant was advised by the Respondent that his position had been made redundant.
[5] The Respondent has raised a number of objections to the application namely that:
1. the Applicant is not protected from unfair dismissal because of s. 382(b) of the Act regarding employees not covered by modern awards or enterprise agreements who’s annual rate of earnings is more than the high income threshold of $118 100;
2. the application was lodge outside the statutory time limit of 14 days prescribed in s. 394(2) of the Act; and
3. in any event the dismissal was a case of genuine redundancy and so by virtue of s. 385(d) of the Act, the Applicant has not been unfairly dismissed.
[6] Both parties have provided written submissions regarding these objections.
Consideration
382(b)(iii) - the high income threshold exclusion
[7] Section 382 of the Act prescribes when a person is protected from unfair dismissal under the Act. 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.
Note: High income threshold indexed to $118,100 from 1 July 2011”
[8] The effect of s. 382(b)(iii) of the Act is that if the Applicant’s annual earnings are greater than the high income threshold of $118 100 then the Applicant must either be covered by a modern award or alternatively an enterprise agreement must apply to his employment for him to be protected from unfair dismissal.
[9] The Respondent says that the Applicant’s salary was $120 000 per year excluding superannuation and in addition he received a car allowance of $10 000 per year. The Applicant does not dispute that the sum of his annual rate of earnings was more than $118 100. Consequently I accept that the Applicant’s annual rate of earnings was not less than the high income threshold.
[10] The Applicant says that the Respondent’s business is retailing of window treatments and the manufacturing and wholesaling of blind components and submits that either the Manufacturing and Associated Industries and Occupations Award 2010 [MA000010] or the Textile, Clothing, Footwear and Associated Industries Award 2010 [MA000017] covers the Applicant.
[11] The Applicant has not suggested which classification in either of those awards covers the Applicant’s employment.
[12] With respect to the two awards in question their coverage clauses have the respective first subclause as follows:
The Manufacturing and Associated Industries and Occupations Award 2010
“4.1 This award covers employers throughout Australia of employees in the Manufacturing and Associated Industries and Occupations who are covered by the classifications in this award and those employees.” (Underlining added)
The Textile, Clothing, Footwear and Associated Industries Award 2010
“4.1 This industry award covers employers throughout Australia in the textile industry, clothing industry, bag making industry, button making industry, footwear industryandallied manufacturing and fabricating industriesand their employees engaged in duties covered by the classifications in this award.” (Underlining added)
[13] It is not enough to determine that an employer’s business is covered by a particular modern award to therefore conclude that a particular employee of that employer is covered by that award. Modern awards cover only the particular classifications of employees prescribed by the award. A modern award that covers an employer’s business does not cover all employees in that business. Individual businesses are commonly covered by more than one award, with different classifications of the employees covered by different modern awards. In addition managerial employees in most businesses have traditionally been award free and this position has been maintained under modern awards.
[14] In this case I am not satisfied that either of these two modern awards nor any other modern award covers the Applicant’s position of Production and Product Manager.
[15] There is also no suggestion that there is an enterprise agreement that applies to the Applicant’s employment.
[16] Consequently my conclusion is that none of the elements set out in s. 382(b) of the Act apply to the Applicant. Therefore the Applicant is not a person protected from unfair dismissal and so no remedy under s. 390 of the Act is available to the Applicant and accordingly this application should be dismissed.
Should a further period to make the application be allowed?
[17] Section 394 of the Act requires that an application such as this must be made within 14 days after the dismissal took effect. In this case the Applicant was dismissed on 7 September 2011 and the application was not made until 6 March 2012 some six months after the dismissal.
[18] Section 394(3) of the Act however provides that Fair Work Australia has the discretion to allow a further period for the application to be made if it is satisfied that there are exceptional circumstances taking into account various prescribed matters.
[19] The relevant provisions are set out below:
“s. 394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[20] For completeness I will also consider this issue.
[21] The Applicant explains that around 8 December 2011 he was provided with information that caused him to question the reasons the Respondent had said he was dismissed for.
[22] The Applicant made various enquiries regarding the Respondent’s actions.
[23] The Applicant was ill for approximately four weeks during December and only recovered in early January 2012.
[24] On 6 March 2012 the Applicant received legal advice regarding his situation and this application was commenced immediately thereafter.
[25] The Applicant says that the reason for the delay in making the application was that at the time of his dismissal he was unaware of the 14 day time limitation which the Respondent did not advise him of. The Applicant only became aware of the 14 day time limit on receipt of the legal advice on 6 March 2012.
[26] In addition the Applicant was unaware until he received his legal advice on 6 March 2012 that his dismissal may not have been a genuine redundancy and so potentially was unfair.
[27] The Applicant says his case has merit because in early December 2011 the Respondent was advertising online for a Product and Operations Assistant. The Applicant says this role included all of the tasks he was undertaking and he was never offered this position prior to being made redundant and that it can be inferred from other information the Applicant has obtained that the real reason for his dismissal was not redundancy but because of relationship issues with other staff members.
[28] With respect to the merit of the application the Respondent says the Applicant has no prospects of success because as a result of a downturn in the business the Respondent restructured parts of its operations including the closure of some factories and during this time four managerial positions were removed including the Applicant’s position.
[29] The position of Product and Operations Assistant advertised online in December 2011 is a junior clerical role with a salary of $45 000 per year and in no way equates to the previous role of the Applicant.
[30] Considering then the matters prescribed in s. 394(3) of the Act, I accept that there is an acceptable explanation for the delay in making this application from the date of the dismissal, 7 September 2011, through to when the Applicant first became aware, on 8 December 2011, of information that suggested that he was not dismissed for reasons of redundancy.
[31] With respect to the four week period covering the balance of December 2011 during which the Applicant was ill, there is nothing before the Tribunal to satisfy me that the Applicant was so unwell that he was unable to make an application of this type.
[32] In any event there is no acceptable explanation as to why after his recovery he did not make this application sometime in January or February of 2012.
[33] It is well established in the case law of this Tribunal that the fact that an Applicant is unaware of the statutory 14 day time limit is not an acceptable explanation for the delay in making an application.
[34] Consequently there is only an acceptable explanation for part of the delay involved in making this application.
[35] Other than this application the Applicant has not taken any other action to dispute his dismissal.
[36] There is nothing before the Tribunal that would suggest that prejudice to the employer is a significant issue in this case.
[37] The merits of the application are clearly debatable and in determining whether or not an extension of time to make the application should be granted the Tribunal is not required to carry out an exhaustive review of the merits. In this case then the merits of the matter are a neutral factor with respect to the application to extend time.
[38] There is no information before the Tribunal regarding fairness as between the Applicant and other persons in a similar position.
[39] Considering these matters I am not satisfied that either individually or collectively these matters amount to exceptional circumstances in this case. Consequently this is not an appropriate instance where the Tribunal should exercise its discretion to allow a further time for an application such as this to be made. Accordingly this application has not been made within the statutory time limit and so should be dismissed.
Conclusion
[40] The Applicant was not covered by a modern award nor did an enterprise agreement apply to his employment and his annual rate of earnings was more than the high income threshold of $118 100. Consequently the Applicant is not protected from unfair dismissal and for this reason the application must be dismissed.
[41] Separately because the application was lodge outside the statutory time limit of 14 days prescribed in s. 394(2) of the Act and there are no exceptional circumstances that would warrant an extension of time being allowed to make the application I would also dismiss the application.
[42] The application will proceed no further and consequently the question of whether or not the Respondent’s dismissal of the Applicant was a genuine redundancy need not be determined by the Tribunal.
[43] An order dismissing the application will issue in conjunction with this decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code C, PR525518>
0
0
0