The high profile case of former Gold Coast Turf Club CEO, Mr Dale St George, was dramatically decided in the Fair Work Commission regarding his alleged unfair dismissal from the top job. Senior Attwood Marshall Litigator Mike Smith acted for the Gold Coast Turf Club in this matter and shares some insights into the case that will benefit employers in the future.
As reported in the Gold Coast Bulletin on 9 February 2017, the application for relief from unfair dismissal pursuant to the Fair Work Act 2009 (the Act) instigated by Mr St George against the Gold Coast Turf Club (Turf Club) was formally dismissed pursuant to the decision of Senior Deputy President Drake in the Fair Work Commission on the 25th January 2017. A link to the reporting of the case on the Fair Work website can be accessed here:
For ease of reference, Section 382 of the Act provides the following regarding protection from unfair dismissal which Mr St George sought to rely upon:
“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.”
As pertains to this case, various issues were raised with respect to the application and whether Mr St George was able to demonstrate that he exceeded the minimum threshold as required under the Act.
First, in light of the size of the Turf Club and the number of employees it has, it was not in dispute that Mr St George completed the minimum employment period as stipulated under the Act, that being 6 months. Therefore, Section 382(a) of the Act was complied with.
In respect of Section 382 (b)(ii) and (iii) of the Act which relates to an enterprise agreement and high income threshold ($138,900.00) respectively, it was conceded and agreed that an enterprise agreement did not apply to the employment of Mr St George, and further, that he earned above the threshold amount. Consequently, as a result of being unable to obtain the benefit of Section 382 (b)(ii) and (iii), Mr St George was left solely with the final option under the section of the Act relating to a modern award.
The pivotal and final issue came down to whether Mr St George was able to establish that he was a person covered by a modern award, which in this instance he maintained it being the Registered and Licensed Clubs Award 2010 (the Award).
The Turf Club maintained its position that in respect of the Award, it does not fall within the definition of “Club”, and further, that it does not cover employers in the Racing industry.
The guidelines to be a “Club” for the purpose of the Award required, among other things, that the Turf Club was:
- registered and licensed under the provision of a State or Commonwealth, Liquor or Gaming Act, Associations’ Incorporation Act or Corporations Act; and
- established and operates on a not-for-profit basis; and
- does so for the benefit of members and the community
The Court found that points 1 and 2 above were satisfied, however, point 3 was not in its entirety.
Although the Court found that the Turf Club did operate for the benefit of its “members”, as no evidence was led by Mr St George in terms of “community”, the Court was not persuaded in this instance that a club that promotes and hold racing events is conducted for the benefit of the community.
The crux of the above position by the Court demolished the last refuge for Mr St George who sought to rely upon Section 382 (b)(i) of the Act. In brief, the Court confirmed the Turf Club was not a “club” for the purpose of the Award and therefore Mr St George is not engaged “in or in connection with” a club in the relevant sense.
The Court further held that if it was wrong in the above interpretation, the Award itself explicitly excludes thoroughbred, harness, trotting and greyhound racing clubs. These clubs are covered by the Racing Clubs Award with an exclusion of coverage of racing clubs in relation to “operations”. It held that because Mr St George was the CEO of the Turf Club, it could not be said that he was not engaged in the operations covered by the Racing Clubs Award.
In finding of non-coverage by a Modern Award and the fact that his income exceeded the high income threshold led to the application being dismissed on jurisdictional grounds.
The decision provides some certainty in relation to executive office bearers and/or employees who work in the racing industry (this would apply to all facets of racing, e.g. thoroughbred, trotting and greyhound). It is less certain in relation to executive employees outside of the racing industry but it would appear that for employers to avoid any possible jurisdictional issue with the Fair Work Commission, they should ensure that their probationary periods are for less than the minimum prescribed employment period under the Act of 6 months (or certainly no longer than this period). If the two pre-conditions of the requirements, i.e. working for an employer for less than 6 months and the salary is in excess of the high income threshold currently ($138,900.00 per annum), there is little doubt that Fair Work Commission would have jurisdiction in relation to any disputes arising from this.
Employers should also ensure that their Employment Agreements make specific provision for termination notice periods within their probation period or extended probation period. Employers should also ensure that any recruitment agencies that they engage to act on their behalf have appropriate documentation which takes these issues into account and does not leave the employer liable for potential claims for unfair dismissal during a probation period or extended probation period.
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