Wayne Cox v Warrikal Pty Ltd

[2024] FWC 3171

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Wayne Cox
v

Warrikal Pty Ltd

(U2024/12378)

DEPUTY PRESIDENT DEAN

CANBERRA, 18 NOVEMBER 2024

Application for an unfair dismissal remedy – high income threshold – application dismissed.

This decision concerns an application made by Mr Wayne Cox (Applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to the termination of his employment with Warrikal Pty Ltd (Respondent).

The Respondent objects to the application on a number of grounds, including that the Applicant earned above the high income threshold and was not covered by an award or enterprise agreement.
Section 382 of the Act provides that 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.
On 14 November 2024, the Applicant confirmed in correspondence to the Commission that he did earn more than $175,000 (being the high income threshold) and his employment was not covered by a modern award or enterprise agreement.

As a result, the Applicant is not a person protected from unfair dismissal and his claim cannot proceed. Accordingly, this application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application for an unfair dismissal remedy by Mr Wayne Cox against Warrikal Pty Ltd. The Applicant sought relief under section 394 of the Fair Work Act 2009, challenging the termination of his employment. The Respondent contested the application, arguing that the Applicant was not protected under the Act as his income exceeded the high income threshold, and no applicable award or enterprise agreement covered him. The Applicant conceded in correspondence to the Commission that his annual earnings were above the stipulated threshold and that no modern award or enterprise agreement applied to him.

The Commission needed to determine whether the Applicant was protected from unfair dismissal under section 382 of the Act. This required an examination of whether the Applicant met the criteria set out in the Act, specifically whether he had completed the requisite period of employment, was covered by a modern award or enterprise agreement, or had an annual income below the high income threshold. The Commission found that the Applicant did not meet any of these criteria, as his income exceeded the threshold, and there was no applicable award or enterprise agreement.

Consequently, the Commission concluded that the Applicant was not protected from unfair dismissal, and his claim could not proceed. The application was dismissed as the Applicant did not meet the eligibility requirements under the Act. The Deputy President confirmed this decision in the formal ruling, noting that the Applicant's income and lack of award or agreement coverage precluded any further consideration of the unfair dismissal claim.

The Fair Work Commission dismissed Mr Cox's application for an unfair dismissal remedy, ruling that he was not protected under the Fair Work Act 2009 due to his income exceeding the high income threshold and the absence of a relevant award or enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established