Scott Geach v Techserve Pty Ltd T/A Techserve

[2019] FWC 4696

[2019] FWC 4696

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Geach
v
Techserve Pty Ltd T/A Techserve
(U2019/5260)

VICE PRESIDENT CATANZARITI BRISBANE, 5 JULY 2019

Application for an unfair dismissal remedy.

[1] On 9 May 2019, Mr Scott Geach applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Geach stated that he commenced employment with Techserve Pty Ltd (Techserve) on 23 April 2018 and that his dismissal took effect on 18 April 2019.

[3] On 31 May 2019, Techserve filed an Employer Response on Form F3, objecting to Mr Geach’s application on the grounds that he earned more than the high income threshold. Techserve stated that Mr Geach’s base salary was $180,000 per annum.

[4] On 7 June 2019, my chambers sent correspondence to Mr Geach indicating that based on the information contained in the Employer Response, it appeared he may have earned more than the high income threshold at the relevant time, being $145,400 per annum. The correspondence required Mr Geach to file a statement within seven days to support his claim that he having earnt less than the high income threshold.

[5] On 19 June 2019, my chambers sent further correspondence to Mr Geach, noting that he had previously been directed to file a statement in support of his claim that he had earnt less than the high income threshold, but had not done so. Mr Geach was then given until 4:00 pm on 26 June 2019 to respond. Mr Geach was advised that in the absence of any material being received, his application may be dismissed.

[6] To date, Mr Geach has not responded to the Commission.

[7] Section 382 of the Act sets out the circumstances in which a person is protected from unfair dismissal:

“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.”

[8] As stated above, the high income threshold prescribed by reg 2.13 of the Fair Work Regulations 2009 was $145,400 at the relevant time.

[9] Section 587(1) of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[10] In the circumstances of this matter, I am satisfied Mr Geach did not earn less than the high income threshold. Accordingly, his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[11] An order to that effect will issue with this decision.

VICE PRESIDENT

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