Troy Jackson v Turner Brothers Furnishings Pty Limited T/A Turner Bros

[2014] FWC 4532

[2014] FWC 4532

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Troy Jackson
v
Turner Brothers Furnishings Pty Limited T/A Turner Bros
(U2013/17030)

DEPUTY PRESIDENT BOOTH SYDNEY, 8 JULY 2014

Termination of employment - application for unfair dismissal remedy - jurisdiction - high income threshold.

[1] Mr Troy Jackson worked as a sales manager for Turner Brothers Furnishing Pty Ltd (the Respondent) from 4 March 2013 until he was dismissed on 19 or 20 November 2013. On 5 December 2013 he lodged an application with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy.

[2] The matter was the subject of a telephone conciliation conducted by a conciliator but while the parties came close to an agreement ultimately the matter was not resolved.

[3] Mr Jackson sought that the matter be listed for hearing and the application was met with a jurisdictional objection by the Respondent. The jurisdictional objection is that Mr Jackson is not a person protected from unfair dismissal pursuant to s.382 of the Act because he is not covered by a modern award, an enterprise agreement does not apply to him and the sum of his annual rate of earnings at the time of dismissal exceeded the high income threshold, which at the time was $129,300.

[4] The matter came before me at 2pm on 30 May 2014 to hear the jurisdictional objection following directions that had been issued requiring the Respondent to file and serve their submissions 14 days prior to the hearing, being 16 May 2014. On 22 May 2014 these submissions were filed and served on Mr Jackson.

[5] The Respondent was represented by Mr Garth Brown, Human Resources Manager. Mr Jackson did not appear at the hearing on 30 May 2014 and he did not answer his phone when my Associate called him. After waiting until 2.18pm I decided to hear Mr Brown’s submissions. Mr Brown supplied further material to the Commission on 4 June 2014. The transcript of the hearing and the material provided to the Commission by Mr Brown was provided to Mr Jackson.

[6] On 4 June 2014 my Associate wrote to Mr Jackson by email in the following terms:

“Dear Mr Jackson

Your application was listed for hearing of a jurisdictional objection by Turner Brothers Furnishings on Friday 30 May 2014. You did not appear. The jurisdictional objection is that you are not a person protected from unfair dismissal pursuant to s.382 of the Fair Work Act 2009 because your annual rate of earnings at the time of your dismissal exceeded the high income threshold of $129,300.

Notwithstanding your non-attendance Deputy President Booth heard the respondent’s submissions on the basis that you would receive the transcript of the hearing and any documents relied upon and have an opportunity to respond. You may do so in writing or you may request a further hearing to make oral submissions.

Attached is a copy of the transcript of the hearing and an email containing a document relied upon by the respondent.

Please advise these Chambers by COB 11 June 2014 whether you wish to have the matter relisted for further submissions to be made or choose to make written submissions.

If you choose to make written submissions you have until COB 18 June 2014 to lodge those submissions with these Chambers and serve a copy on the respondent. The respondent has until COB 25 June 2014 to reply to those submissions and a written decision will issue soon thereafter.

If Chambers do not receive a reply to this email by 11 June 2014 a decision will be made based upon the material before the Commission.

Regards

Dean Superina

Associate to Deputy President Booth”

[7] Mr Jackson had not replied to my request for his response concerning the conduct of the matter by 11 June 2014 and as at the date of this decision he has not made contact with the Commission.

[8] This decision is made based on the submissions of Mr Brown and the material he supplied to the Commission.

[9] I must consider whether Mr Jackson is a person protected from unfair dismissal pursuant to s.382 of the Act.

[10] Section 382 of the Act reads as follows:

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 $129,300 from 1 July 2013.

[11] The Respondent had 22 employees at the time of Mr Jackson’s dismissal and as such is not a small business employer. Therefore, pursuant to s.383 of the Act, the minimum employment period that pertains to Mr Jackson’s eligibility for an unfair dismissal remedy is 6 months and Mr Jackson period of employment of over 8 months exceeds this period. Mr Jackson satisfies the test in s.382 (a) of the Act. However, Mr Jackson must also satisfy one of the three criteria found in s.382(b) of the Act.

[12] The Respondent submits, in effect, that Mr Jackson is not covered by a modern award or an enterprise agreement and that his employment was “supported by a signed private employment agreement between himself and Turner Bros.” 1 In the absence of any submission form Mr Jackson to the contrary I accept this submission.

[13] The Respondent submits that Mr Jackson’s remuneration amounted to $137,000 comprised of $120,000 base and $17,000 car allowance and he also received fuel to the value of $2751.47 on a fuel card provided by the Respondent.

[14] Mr Brown carried out an assessment of Mr Jackson’s use of his car for business purposes and calculated that Mr Jackson used his car for business purposes for 26% of the time. He calculated Mr Jackson’s annual rate of earnings for the purpose of comparing it to the high income threshold as $132,580. Mr Brown provided the document that he used to calculate Mr Jackson’s business use of his car and I am satisfied that it supports Mr Brown’s conclusion. I accept that 26% of $17,000 being $4,420 should be deducted from Mr Jackson’s $137,000 remuneration package. This approach to apportionment was taken by the Commission in Mr Jeff Hardman v Statewide Communications Australia Pty Ltd T/A Alarming Solutions Statewide Health Integration. 2

[15] This amount of $132,580 exceeds the high income threshold which was $129,300 at the relevant time. It is not necessary to consider a proportionate allocation of the fuel card to Mr Jackson’s annual rate of earnings as the amount excluding the fuel card exceeds the high income threshold.

[16] In these circumstances I find that Mr Jackson is not a person protected from unfair dismissal pursuant to s.382 of the Act because he is not covered by a modern award, an enterprise agreement does not apply to him and the sum of his annual rate of earnings at the time of dismissal exceeded the high income threshold, which at the time was $129,300.

[17] Mr Jackson’s application is dismissed. An order reflecting this decision will issue concurrently.

DEPUTY PRESIDENT

Appearances:

No appearance by the Applicant

G Brown for Turner Brothers Furnishings Pty Limited T/A Turner Bros

Hearing details:

2014.

Sydney:

May 30.

Final written submissions:

4 June 2014

 1   Form F3 Employer Response to Unfair Dismissal Application

 2   [2013] FWC 3118

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