TERMINATION OF EMPLOYMENT – high income threshold – s.604 Fair Work Act 2009 – appeal – Full Bench – employee initially worked as offshore maintenance technician covered by Esso Offshore Enterprise Agreement 2011 – employee commenced in lead instrument and electrical technician role in Malaysia – employee then commenced assignment in Papua New Guinea (PNG) as instrument/electrical technician – PNG assignment terminated – employee returned to Australia whilst employer searched for new role – employee continued to receive base salary from PNG assignment – employee dismissed – at first instance Commission determined employee not covered by agreement but covered by Hydrocarbons Industry (Upstream) Award 2010 at time of dismissal – high income threshold not relevant and employee considered a protected person from unfair dismissal – employer submitted three grounds for appeal – (1) employee held no substantiative role at time of dismissal so not covered by award – (2) if employee held substantiative PNG role the period amounts to a period of ‘garden leave’ – (3) Commission failed to give adequate reasons for the first two grounds – Full Bench held permission to appeal granted as matter of public interest – appeal upheld – Commission found previous decision erroneous – Full Bench found it was not possible for employee to be found to be covered by award whilst not performing any work to fall within a classification – previous decision quashed – Commission found employee not covered by award and was not a protected person – respondent’s application dismissed. Appeal by Esso Australia P/L against decision and order of Cribb C of 14 February 2017 [[2017] FWC 900] and [PR590220] Re: Stephens
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