DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Bernadou
v
Sam Technology Engineering Pty Ltd
(U2017/3288)

COMMISSIONER BISSETT

MELBOURNE, 20 NOVEMBER 2018

Application for an unfair dismissal remedy - high income threshold – jurisdictional objection dismissed.

[1] Mr Andrew Bernadou (Applicant) has made an application seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant was employed by Sam Technology Engineering Pty Ltd (Respondent).

[2] The Respondent has raised a jurisdictional objection to the Fair Work Commission (Commission) dealing with the Applicant’s application as it says that, at the time his employment was terminated, the Applicant earned above the high income threshold. The Applicant’s employment was terminated on 10 March 2017. The high income threshold at that time was $138,900.

[3] The jurisdictional objection was heard by the Commission in June 2017. A decision 1 was issued in which it was found that the Applicant did not earn above the high income threshold at the time his employment was terminated and hence dismissed the Respondent’s objection. The Respondent appealed that decision. On 27 March 2018 a Full Bench of the Commission upheld the appeal2 and the file was remitted to determine the question of “whether, at the time of his dismissal, Mr Bernadou’s annual rate of earnings, and such other sums (if any) worked out in relation to him in accordance with the regulations is less than the high income threshold?” 3

[4] In considering the matter subject to appeal, specifically how the Applicant’s car allowance of $20,000 per year should be treated, the Full Bench said:

[72] For the reasons set out above and having regard to the relevant statutory context, we are of the view that a car allowance should be treated in the following way for the purpose of calculating an employee’s "annual rate of earnings" within the meaning of ss.332 and 382(b)(iii) of the Act:

(a) If a car allowance is paid to an employee in circumstances in which there is no requirement or expectation that the employee will have to use his or her car for work purposes, then the whole of the car allowance is, in reality, part of the employee’s wages and is therefore included in their “earnings”; or

(b) If a car allowance is paid to an employee at the time of their dismissal in circumstances in which there is a requirement or expectation that the employee will have to use his or her car for work purposes, then it will be necessary to determine and calculate the private benefit, if any, derived by the employee from the car allowance. To that end, we suggest the following methodology, which is based on the approach taken in Fewings:

1. Determine the annual distance travelled by the car in question. The amount of the annual distance will be as follows:

a. if the car allowance has been paid for at least…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Andrew Bernadou v Sam Technology Engineering Pty Ltd

Details

AGLC: Andrew Bernadou v Sam Technology Engineering Pty Ltd [2018] FWC 7305
Case: [2018] FWC 7305
Decision Date: 20 NOVEMBER 2018

CaseChat Overview and Summary

The case of Andrew Bernadou v Sam Technology Engineering Pty Ltd involved a claim by the applicant, Mr Bernadou, against his former employer, Sam Technology Engineering Pty Ltd, for unfair dismissal. The dispute centred on whether Mr Bernadou qualified for a remedy under the Fair Work Act 2009, considering his income level. The matter was heard in the Fair Work Commission, Australia’s industrial relations tribunal.

The primary legal issues the Commission had to decide were whether Mr Bernadou’s income fell within the prescribed high-income threshold, and if the Commission had jurisdiction to hear the matter given that threshold. The threshold in question was whether Mr Bernadou’s annualised income exceeded $190,800. Additionally, the Commission needed to determine if the jurisdictional objection raised by the respondent was valid.

In its reasoning, the Commission noted that Mr Bernadou’s annualised income did not exceed the prescribed threshold, thus he qualified for the protection of the Fair Work Act. The Commission dismissed the jurisdictional objection, finding that the respondent had not provided sufficient evidence to support the claim that the application should be dismissed on jurisdictional grounds. Consequently, the Commission found that it did have jurisdiction to hear the matter, and Mr Bernadou was entitled to seek a remedy for unfair dismissal.

The Commission ordered that the application for unfair dismissal proceed, as Mr Bernadou met the income criteria and the jurisdictional objection was dismissed. The decision affirmed that individuals earning below the specified threshold could seek relief under the Fair Work Act, and it underscored the importance of substantiating jurisdictional challenges with appropriate evidence.

Orders