DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ryan Welk
v
SG Mining Pty Ltd T/A SG Mining
(U2020/1853)

DEPUTY PRESIDENT BEAUMONT

PERTH, 19 JUNE 2020

Application for an unfair dismissal remedy – jurisdictional objection – s 382 high income threshold – private value of vehicle – applicant’s total earnings exceeded high income threshold – application dismissed.

[1] Mr Ryan Welk made an application under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. He was employed by SG Mining Pty Ltd T/A SG Mining (Respondent) as a production supervisor at Talison Lithium’s Greenbushes Project, Western Australia (Talison), where the Respondent has a contract to provide mining services.

[2] The Respondent has raised a jurisdictional objection to the application, arguing that Mr Welk is not a person protected from unfair dismissal within the terms of s 382 of the Act. The Respondent argues that Mr Welk enjoyed annual earnings above the high income threshold and so is excluded from making this application by virtue of s 382(b)(iii). It is uncontentious that Mr Welk was not covered by a modern award and an enterprise agreement did not apply to him in his employment. Therefore, the inclusions of s 382(b)(i) or (ii) are not triggered. However, for the sake of fulsomeness s 382(b)(i) is further considered.

[3] In response to the objection, Mr Welk has argued he was paid below the high income threshold. If this condition can be established the Respondent’s objection will be dismissed. Therefore, the primary question to be determined is whether Mr Welk’s annual rate of earnings exceeded the high income threshold.

Background

[4] Mr Welk was employed on a full-time basis from 4 August 2014 until his employment was terminated on 28 January 2020. 1 His duties were purportedly predominately supervisory in nature and included the following:

a) assessing the works required to be completed. Allocating tasks, equipment and work areas to employees. Monitoring progress, supervising, assessing and reassigning tasks, equipment and work in order to achieve production targets;

b) supervising employees’ compliance with health and safety regulations, performing safety assessments and implementing risk reduction processes;

c) directly supervising and mentoring the step-up supervisors; and

d) liaising with other supervisors, safety officers and the mining foreman. 2

[5] At the time Mr Welk’s employment with the Respondent was terminated, his base salary was $148,000; having increased from $145,000 to $148,000 as of 1 January 2020. Mr Welk worked a permanent roster of seven days on and seven days off (R&R). 3

[6] In addition to the base salary of $148,000 per annum, Mr Welk was provided with a fully serviced Hilux SR 2014 (Vehicle) as a tool of the trade during work hours, and for personal use outside of work hours and during R&R. The Respondent submitted that the value of this benefit was significantly above the $700 per year needed for Mr Welk to have…

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: [2020] FWC 2513
Decision Date: 19 JUNE 2020

CaseChat Overview and Summary

The applicant, Ryan Welk, brought an application against SG Mining Pty Ltd T/A SG Mining for an unfair dismissal remedy. The dispute centred on jurisdictional objections and the applicability of section 382’s high income threshold. The Federal Circuit and Family Court of Australia was tasked with determining whether Welk’s dismissal was unfair and if the court had the jurisdiction to hear the application. The key legal issues were whether the private value of a vehicle owned by Welk should be included in determining his total earnings for the purpose of the high income threshold, and if his total earnings exceeded the threshold, thereby rendering the court without jurisdiction to hear the unfair dismissal claim.

The court examined the statutory provisions and relevant case law to determine the proper method for calculating Welk’s total earnings. It was established that the private value of the vehicle should be included in the calculation. The court held that including this value resulted in Welk’s total earnings exceeding the high income threshold set out in section 382 of the Fair Work Act. Consequently, the court found that it did not have the jurisdiction to hear the unfair dismissal application. The court dismissed Welk’s application on the basis that his total earnings, including the private value of the vehicle, exceeded the statutory threshold, thus falling outside the court’s jurisdiction.

The court’s reasoning was grounded in a meticulous analysis of the legislative framework and relevant case law. It concluded that the inclusion of the private value of the vehicle was necessary to accurately reflect Welk’s total earnings. Given that this inclusion resulted in earnings above the statutory threshold, the court was precluded from exercising jurisdiction over the unfair dismissal claim. The decision underscored the importance of correctly applying the legislative provisions concerning jurisdictional thresholds in employment matters.

Orders