Troy Petrie v FMG Personnel Services Pty Ltd

[2014] FWC 5763

[2014] FWC 5763

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Troy Petrie
v
FMG Personnel Services Pty Ltd
(U2014/7736)

DEPUTY PRESIDENT MCCARTHY PERTH, 26 AUGUST 2014

Application for relief from unfair dismissal - jurisdictional objection that applicant not protected from unfair dismissal - high income threshold.

[1] Mr Troy Petrie (the Applicant) lodged an Unfair Dismissal Application (the Application) on 4 June 2014. He claimed that he had been unfairly dismissed from his employment with Pilbara Mining Alliance Pty Ltd trading as Fortescue Metals Group (Pilbara Alliance). The Application states that the Applicant was employed from 24 September 2013 and that his dismissal took effect on 15 May 2014.

[2] On 2 July 2014, FMG Personnel Services Pty Ltd (the Respondent) lodged an Employer Response to Unfair Dismissal Application (the Employer Response). The Employer Response states that the Respondent was the employer of the Applicant and not Pilbara Alliance. Documentary evidence in support of that was provided. The Respondent also explained that the Respondent is a wholly owned subsidiary of Pilbara Alliance. I therefore amend the Application to reflect the true employer as the Respondent.

[3] The Respondent also objected to the Application. Firstly, the Respondent asserts that the Applicant’s employment did not meet the minimum employment period. They asserted that the Applicant commenced employment on 16 November 2013 and was dismissed on 15 May 2014. Secondly, the Respondent asserts that the Applicant is not protected from unfair dismissal by operation of s.382(b) of the Fair Work Act 2009 (the FW Act). The Respondent stated that the Applicant was not covered by a modern award and that an enterprise agreement did not apply to him and that his annual rate of earnings exceeded the high income threshold.

[4] The Employer Response also stated at Item 2.2 that:

“2. Part 3-2 of the Fair Work Act 2009 (Cth) affords protection from unfair dismissal when the requisites set out in s382 are satisfied. Those requisites have not been satisfied in this matter, at a time, and it follows that [the Applicant] is not afforded protection under Part 3-2 of the Act.

a. [The Applicant] commenced employment with FMG Personnel Services on 16 November 2013. [The Applicant] was dismissed by FMG Personnel Services on the 15 May 2014. [The Applicant] had not worked the minimum employment period.

b. [The Applicant] was earning more than $129,300 a year refer to part 1.5.

c. [The Applicant] was not covered by an award.

d. An enterprise agreement did not apply to [the Applicant] in relation to his employment.”

[5] At Item 3.1 of the Employer Response the Respondent stated:

“2. As a Shutdown Coordinator [the Applicant] was employed under a common law contract and his duties included coordinating and directing large teams of both external and internal workgroups to execute the planned mechanical and electrical maintenance on the Ore Processing Facility during periods of shutdown.”

[6] I wrote to the Applicant on 6 August 2014 regarding the jurisdiction objection as to whether the Applicant was protected from unfair dismissal and sought information from him regarding that issue.

[7] The Applicant responded on 19 August 2014 and advised to the effect that his annual salary was well in excess of the high income threshold. The Applicant also advised that:

“2. In regard to the “Covered by an Agreement or Modern Award”, I am unable to say. I have a contract of employment and assumed I was covered by the minimum conditions of employment.”

[8] There appears to be no information that the Applicant can provide that would support any contention that he is covered by a modern award or that an enterprise agreement applied to his employment with the Respondent. It is also obvious that his annual remuneration was above the high income threshold.

[9] The Respondent however made it clear in the Employer Response with strongly supportive grounds that the Applicant was not protected under the FW Act from unfair dismissal. I make no inference that the dismissal was unfair as no doubt that would involve findings of fact and I have not conducted a hearing to determine any facts.

[10] I therefore find that the Application has no reasonable prospects of success. 1

The Application is therefore dismissed.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 19 August 2014.

 1 See s.587(1)(c) of the Fair Work Act 2009.

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