Subir Kumar Roy v Mphasis Australia T/A Mphasis Australia Pty. Ltd

[2013] FWC 5637

[2013] FWC 5637

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Subir Kumar Roy
v
Mphasis Australia T/A Mphasis Australia Pty. Ltd
(U2013/1211)

COMMISSIONER JOHNS MELBOURNE, 13 AUGUST 2013

Application for relief from unfair dismissal.

[1] The following decision was given in transcript, at the conclusion of proceedings on 8 August 2013.

[2] On 14 April 2013, Mr Subir Kumar Roy (Applicant) made an application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from Mphasis Australia Pty Ltd (Employer). The dismissal took effect on 25 March 2013.

[3] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] On 13 May 2013 the Employer filed a response to the unfair dismissal application. In its response it raised a number of jurisdictional objections.

[5] Conciliation was attempted on 14 May 2013 but the matter did not settle.

[6] Consequently, the matter was listed for hearing today.

[7] In response to the application, the Employer asserts that the Commission has no jurisdiction to deal with the Applicant’s application because, pursuant to paragraph 382(b)(i), (ii) and (iii) of the FW Act, he:

● earns more than the high income threshold;
● is not covered by a modern award; and
● an enterprise agreement does not apply to his employment.

[8] At the time the dismissal took effect the high income threshold was $123,300 (being the amount for the period 1 July 2012 - 30 June 2013).

[9] To assist in the fair, efficient and effective resolution of the Employer’s jurisdictional objection, at the beginning of this hearing just now I decided to hear and determine the issue of whether the Applicant earned more than the high income threshold first. If that matter was determined in the Employer’s favour there was no need to further consider the other jurisdictional objections raised by the Employer or the merits of the matter.

[10] The Applicant filed an Outline of Submissions on 28 June 2013. In those submissions he did not address the issue of the high income threshold. It is a matter that I have explored with him in some detail today. On his own evidence, the Applicant earned $124,000 prior to his pay rise on 1 December 2012 which took his salary to $127,192.

Relevant Statutory Framework

[11] The relevant statutory framework is dealt with in s.382 of the FW Act. It sets out who is protected from unfair dismissal.

● Division 2—Protection 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.

[12] Section 396 of the FW Act lays down the initial matters which must be considered before going to the merits of an application.

● 396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

Consideration

[13] In the present matter the issue of s.396(b), whether the person was protected from unfair dismissal, is relevant. In considering this matter the Employer’s submission and documentation sets out that the Applicant:

● was employed pursuant to common law contract of employment;

● is not covered by a modern award;

● an enterprise agreement does not apply to his employment; and

● had an annual rate of earnings higher than the high income threshold.

[14] The Employer filed a witness statement from Niharika Patel the Employer’s Associate Vice-President of Human Resources Lead. Attached to Ms Patel’s witness statement was:

● correspondence addressed to the Applicant dated 28 December 2012 which advised the Applicant that his annual compensation was now to be $127,192 [NP-2]; and

● a pay slip advice dated 31 March 2013 which stated that the Applicant’s Annual Salary was $127,192.

[15] During the hearing today the Applicant did not contest the evidence of Ms Patel in so far as it related to his salary. However, he wished to contest whether the dismissal was otherwise harsh, unjust or unreasonable and whether or not it was a genuine redundancy.

[16] However, the Commission is unable to enquire into the merits of the application until and unless it is satisfied that the Applicant was protected from unfair dismissal. This is the requirement contained in s.396 of the FW Act.

[17] Having considered the submission of the Employer, documentation and what the Applicant has said today in not disputing the essential facts relating to his annual rate of remuneration, the inapplicability of an enterprise agreement and that he is not covered by a modern award, the Commission must uphold the Employer’s jurisdictional objection and dismiss the application because the Applicant is not protected from unfair dismissal.

[18] An Order to this effect will be issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

Appearances:

S K Roy the Applicant.

R Sweet, of counsel, with E Evans, solicitor, for Mphasis Australia T/A Mphasis

Australia Pty. Ltd.

Hearing details:

2013.

Melbourne:

August 1 [by telephone];

August 8.

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