Bradley Richard Swadesir v The Trustee for the Martin Clark Family Trust
[2023] FWC 1010
•28 APRIL 2023
| [2023] FWC 1010 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bradley Richard Swadesir
v
The Trustee for the Martin Clark Family Trust
(U2023/516)
| COMMISSIONER YILMAZ | MELBOURNE, 28 APRIL 2023 |
Unfair Dismissal – Jurisdictional Objections – High Income Threshold
Mr Bradley Richard Swadesir has applied to the Commission for a remedy under s.394 of the Fair Work Act 2009 (the Act) in relation to his former employment with the Respondent, The Trustee for the Martin Clark Family Trust (MCFT).
The matter was listed for a jurisdictional hearing concerning whether Mr Swadesir’s annual earnings exceeded the high-income threshold.
Mr Swadesir was employed from 1 November 2020 until 11 January 2023 in the position of General Manager[1] initially employed with Probreed Pty Ltd and was subsequently transferred to its sister company, Edilan Pty Ltd t/a Murnong Farming (Edilan).[2] However I note that Mr Swadesir described the role as Managing Director of Probreed.[3]
MCFT contends that Mr Swadesir’s application should be dismissed on the basis that his income exceeded the high-income threshold and therefore he was not a person protected from the unfair dismissal provisions of the Act. The indexed high-income threshold applicable at the time of the dismissal was $162,000 per annum.
Mr Swadesir represented himself during the proceedings and Mr Martin Clark, Director represented MCFT. Both Mr Swadesir and Mr Clark gave oral evidence.
The submissions
Mr Swadesir contends that he was initially engaged as a sub-contractor then offered full-time employment on 1 November 2020. He submits that he was paid below the high-income threshold and did not identify any industrial instrument that applied to his employment. Tendered in evidence was the contract/ offer of employment, a pay slip, WorkCover certificates of capacity (dated from 11 October 2022 to 10 January 2023) and letters of termination of employment. The offer of employment summarises the terms of employment and provides for a salary of $160,000 p.a., plus a motor vehicle with running costs, plus mobile phone costs, a sales incentive system and profit share.
With the benefit of the high-level job description in BS1, there was no modern award that I have identified to apply to Mr Swadesir’s employment. The high-level job description included responsibilities for marketing and sales, development of systems and processes, engagement with commercial customers, budgets and payments, managing staffing and contractors, market analysis and strategic business growth. The job description states that the Probreed brand book and Probreed policy and procedures are attached to the contract. However, neither of these documents referred to were tendered as evidence by Mr Swadesir.
Mr Swadesir tendered in evidence his payslip for the period 11 January to 24 January 2023. During this period Mr Swadesir was absent from work, unfit for duties and in receipt of worker’s compensation payments. The uncontested evidence was that Mr Swadesir fractured his right foot on 24 February 2022 and was deemed unfit to work till his termination of employment, except for modified duties during the periods 24 February to 10 March 2022 and 1 October to 1 November 2022.
Mr Swadesir contends that the contract and payslip prove that his salary was $160,000 less superannuation and the vehicle was for company use only.[4] Neither of these contentions are demonstrated by the documents. The contract document appears to be a summary document rather than a comprehensive contractual document. It makes no reference to superannuation nor does it provide any particulars concerning use of motor vehicle or any other substantial terms and conditions of employment. The payslip provides limited information as the period covers workers’ compensation payments, a superannuation contribution and a final payment of leave entitlements. The payslip reflects an hourly rate of $70.25[5] and it is unclear on what basis this hourly rate is calculated until assessed against the payroll activity which reflects a monthly rate and an hourly rate of $70.25 based on 40 hours per week.
Mr Swadesir gave evidence that he used the credit card and company vehicle for business purposes and that personal use of the company vehicle accounted for less than 10%. He considered purchases of meals justified as business expenses as he was away from home. Even though the certificates of capacity deemed him unfit for duties, he gave evidence that he primarily worked from home (in Finley, NSW) on the telephone but that he did drop in when he attended to medical appointments each month to check on staff. He further gave evidence that he travelled for work as there were multiple sites and that he dined with clients. However, this oral evidence was inconsistent and challenged by the evidence of Mr Clark. Mr Swadesir also gave evidence that he was the only person to drive the company vehicle except when either his wife or mother drove him to Geelong for his three surgeries.
MCFT submitted that Mr Swadesir was employed on 1 November 2020 on a salary of $160,000 plus superannuation per annum.[6] In addition, Mr Swadesir had full use of a motor vehicle plus an entitlement to incentive payments for sales and profit share. However, in the hearing Mr Clark, for MCFT, stated no incentive payments were ever paid as the performance of the farm dropped while under Mr Swadesir’s management. While the business had less than 15 employees, MCFT does not rely on the Small Business Fair Dismissal Code. Mr Clark contends that Mr Swadesir is not protected from unfair dismissal because he earned an income in excess of $162,000.
Mr Clark submits that as General Manager of the farm, Mr Swadesir was initially employed by Probreed Pty Ltd, however due to poor sales performance, the business became insolvent and employment was transferred to Edilan. Mr Clark submits that Mr Swadesir was responsible for the farm’s performance which required his relocation to the site. However, as Mr Swadesir did not relocate to the farm, the business was poorly managed and incurred the costs associated with travel between the farm and Mr Swadesir’s home in NSW. It is not contested that Mr Swadesir was provided with and utilised accommodation for a few days at a time in Torquay, Yallambie and/or Murnong at various times over the course of his employment.
In addition, Mr Clark stated Mr Swadesir did not manage his workers compensation claim by submitting the required documentary evidence of medical appointments and associated expenses such as travel and accommodation to attend the appointments. MCFT therefore incurred costs as it was unable to claim these costs from its insurer. Mr Clark submits that management of these costs were the responsibility of Mr Swadesir as Farm General Manager, stating that in his role he had full control over the budget and operational costs.
In addition, Mr Clark submits that Mr Swadesir was given a credit card for work related expenses. He tendered in evidence all credit card purchases from 6 July 2021 until end of employment. This evidence demonstrates substantial use of the company card for personal purposes and some transactions appear unclear as to whether they were for business or personal expenditure. Mr Clark gave evidence that use of the credit card was not supported by receipts which made it difficult to account for costs associated with marketing/ client expenses, purchases for the farm or for personal use and further that as General Manager Mr Swadesir had full control over expenditure. Mr Swadesir did not dispute that he failed to provide receipts, however states that he was informed he would not need to do so. Mr Clark stated that this was not the case and that failure to provide receipts or properly accord expenditure does raise concerns over potential abuse of company resources. As an example, Mr Clark gave evidence that his wife questioned Mr Swadesir over the high telephone/ internet plan cost (of over $200 per month) when other staff limit monthly packages to $50 - $70 per month.
Mr Clark also tendered in evidence use of the credit card for fuel purchases, records of payroll activity and other materials and submits that Mr Swadesir was seen refuelling from the farm bowser, but no records of use were captured. In relation to use of motor vehicle Mr Clark submits that the new vehicle purchased (a 2020 Ford Ranger) was selected by Mr Swadesir as part of his package to accommodate his family and was used for business and personal use.
The contract/ offer of employment and relevant policies and procedures were tendered in evidence by MCFT. Relevant policies apply in relation to internet usage and access, mobile phones and motor vehicles. Mr Clark also gave evidence that there was never a clear agreement concerning parameters over expenditure on the credit card.
The legislation
The matter of jurisdiction must be established before an unfair dismissal can be considered on its merits. MCFT object to the application on the grounds that Mr Swadesir was not covered by a modern award or enterprise agreement and that his income exceeded the high-income threshold. Mr Swadesir does not dispute that a modern award or enterprise agreement did not apply, but he objects that he was paid in excess of the high-income threshold.
Pursuant to s.396 of the Act, initial matters to be considered include:
- Whether the application was made within the statutory time frame;
- Whether the person is protected from unfair dismissal;
- Whether the dismissal was consistent with the Small Business Dismissal Code; and
- Whether the dismissal was a case of genuine redundancy.
The application was made within 21 days of the dismissal, there is no argument that the dismissal is a genuine redundancy, nor was it argued that the Small Business Dismissal Code is a relevant consideration.
Section 382 of the Act is relevant to the determination of whether Mr Swadesir was protected from the unfair dismissal provisions. Relevantly, s.382 of the Act provides:
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.
Section 332 of the Act defines earnings as follows:
Earnings
(1) An employee‘s earnings include:
(a) the employee‘s wages; and
(b) amounts applied or dealt with in any way on the employee‘s behalf or as the employee directs; and
(c) the agreed money value of non-monetary benefits; and
(d) amounts or benefits prescribed by the regulations.
(2) However, an employee‘s earnings do not include the following:
(a) payments the amount of which cannot be determined in advance;
(b) reimbursements;
(c) contributions to a superannuation fund to the extent that they are contributions to which subsection (4) applies;
(d) amounts prescribed by the regulations.
Note: Some examples of payments covered by paragraph (a) are commissions, incentive-based payments and bonuses, and overtime (unless the overtime is guaranteed).
(3) Non-monetary benefits are benefits other than an entitlement to a payment of money:
(a) to which the employee is entitled in return for the performance of work; and
(b) for which a reasonable money value has been agreed by the employee and the employer;
but does not include a benefit prescribed by the regulations.
(4) This subsection applies to contributions that the employer makes to a superannuation fund to the extent that one or more of the following applies:
(a) the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;
(b) the employer is required to contribute to the fund for the employee‘s benefit in relation to a defined benefit interest (within the meaning of section 291-175 of the Income Tax Assessment Act 1997) of the employee;
(c) the employer is required to contribute to the fund for the employee‘s benefit under a law of the Commonwealth, a State or a Territory.
The high-income threshold is an amount prescribed in regulation 2.13 of the Fair Work Commission Regulations 2009 (the Regulations). The amount is indexed annually and for the financial year 2022-2023 the amount is $162,000.00.
Relevant to s.382(b)(iii), regulation 3.05 of the Regulations deals with amounts to be added to the annual rate of earnings when considering the high-income threshold. There are no other regulations applicable to ss.382 or 332.
Firstly, I must consider Mr Swadesir’s annual rate of earnings as set out in s.332, and secondly, I am to consider whether there are any amounts to be added to the annual rate of earnings because of the factors arising from the Regulations.
Consideration
For the purposes of s.382 of the Act, I am satisfied that Mr Swadesir has completed the minimum employment period. The sum of the annual rate of earnings, and other amounts to be included in accordance with the Regulations is the jurisdictional matter that is to be determined. MCFT contends that Mr Swadesir’s annual rate of earnings exceeded the high-income threshold set at $162,000 per annum in the regulations, while Mr Swadesir contends that his earnings was below the high-income threshold. The jurisdictional objection rests on Mr Swadesir’s earnings.
Employee wages
Pursuant to s.332 of the Act, an employee’s earnings include employee wages.[7] MCFT tendered in evidence payroll activity details for the period 1 July 2021 to 28 February 2022 which showed a payment of monthly wages of $12,176.67 gross, and 1 March 2022 to 30 June 2022 of $12,176.66 gross. MCTF contend that Mr Swadesir’s earnings for the financial year ending June 2022, was $160,731.97. This sum includes superannuation contributions, however for the purposes of s.332 of the Act, superannuation is not included in the calculation of earnings. Evidence relating to Mr Swadesir’s workers compensation claim shows that while there was an entitlement to workers compensation payments, MCFT did not drop or alter in any way the monthly wage rate. Throughout the period of absence or while on modified duties, Mr Swadesir retained his full wage rather than the adjusted sums ordinarily provided during an absence on workers compensation. I am therefore satisfied that Mr Swadesir’s annual wage rate was $146,120.01 excluding superannuation at the time of his dismissal.
Further in relation to s.332 of the Act, I must take into account:
Any amounts applied on the employee’s behalf or as the employee directs.[8] Neither party provided any evidence of monetary amounts that satisfies this provision.
The agreed money value of non-monetary benefits.[9] There was no evidence of any agreed non-monetary benefits. There were non-monetary benefits, which were agreed to, however there was no agreed value of the benefits.
Any amounts or benefits prescribed by the regulations.[10]
Excluded amounts are those that cannot be determined in advance,[11] reimbursements,[12] superannuation contributions required under the Superannuation Guarantee Charge Act 1992,[13] or amounts prescribed by the regulations.[14]
The contract of employment is devoid of any details concerning agreed monetary or non-monetary values, except for the value of the package consisting of wages and superannuation. The policies attached to the contract of employment indicate that use of email and internet contains strict processes to protect the interests of the business and states that the business resources are to be use for business purposes.[15] The policy, while referencing additional process documents, it does not in itself articulate any detail on use of internet services if working from home. The policy warns against downloading any software except under strict circumstances.[16] The policy makes clear that mobiles are strictly for business purposes and no personal use is permitted. The policy concerning motor vehicle is for the use of the employee only, with occasional use in certain circumstances by a family member and only where the employee is in the vehicle. Excessive personal use and interstate personal trips is not authorised and requires the employee to pay for fuel expenses when holidaying interstate.
MCFT did not make any submissions concerning non-monetary benefits except for fuel purchases and personal use of the credit card.
Motor vehicle
Mr Swadesir was provided with a fully maintained company vehicle. MCFT contends that fuel purchases on the company credit card for year ending June 2022 was $14,956.74 and refuelling from the farm’s bowsers were unrecorded. Further, fuel expenses incurred against the credit card from July 2022 to termination of employment was $11,624.01, again there was no record of fuel taken from the farm’s bowsers. Mr Clark for MCTF gave evidence that Mr Swadesir was employed to manage the farm and this involved essentially an office job, with the location being the farm to access staff, contractors and to perform duties associated with ram marketing. Mr Swadesir did not contest this evidence.
It was not contested that Mr Swadesir resided in Finley, New South Wales and his place of work was in Inverleigh Victoria. The Managing Director submits the requirement of the job was for Mr Swadesir to relocate to reside on the farm as the General Manager. Mr Swadesir contends there was justification for failing to relocate to the farm. Travel from NSW to the farm was 378 kilometres requiring a trip of almost 4.5 hours one way. Travel expenses associated with Mr Swadesir’s home address in Finley concern his personal circumstances and are therefore private and not business travel expenses. Mr Swadesir’s place of work is the farm in Inverleigh and the condition of employment was to relocate to reside on the farm. Instead, Mr Swadesir remained at his family address in Finley. However, while the evidence reveals that Mr Swadesir utilised available accommodation from time to time in Torquay, Yallambie or Murnong, the evidence of kilometres travelled and fuel purchases in transit between Inverleigh and Finley, and in the Finley region demonstrates the vehicle was mostly used for personal purposes. Further Mr Swadesir’s oral evidence that the vehicle was used for business purposes only or less than 10% is not accepted, the evidence of quantum and pattern of use shows extensive use of the vehicle for personal benefit.
It is agreed between the parties that travel expenses included travel for medical appointments in Geelong, Victoria, which are reimbursable by the business insurer on production of satisfactory evidence. MCFT contend that Mr Swadesir did not provide any evidence to the insurer or to itself to enable any recovery of the costs and the credit card captured those costs unrecoverable from the insurer. Mr Swadesir gave evidence that although his medical certificates deemed him unfit to perform duties, he did attend to farm duties which included coming into the farm when he travelled for medical appointments into Geelong.
Where an employee is provided with a fully maintained company vehicle the value of use for private purposes is counted as earnings. MCFT provided evidence of fuel purchases totalling $14,956.74 for July 2021 – June 2022, and $11,624.01 for July 2022 until 18 January 2023. I have deducted total fuel purchases prior to 12 January 2022. This total of fuel purchases for the year of employment totalled $21,468.88. An assessment of the medical appointments as provided by the medical certificates by Mr Swadesir identifies the fuel purchases for the trip to Geelong. I have identified those fuel purchases for the trip to Inverleigh or Geelong and deducted those expenses from the total of fuel purchases. I deducted $3082.69 which left a total of fuel purchases at $18,386.19. The spreadsheet listing each fuel purchase also identifies the location of purchase. This reveals that Mr Swadesir mainly purchased fuel in various locations in New South Wales and around the Murray border region of Victoria. The pattern of purchases suggests substantial use of the vehicle in the New South Wales and Victorian Murray River border region. This evidence supports the contention that use of vehicle was primarily for private use. Even if Mr Swadesir purchased fuel from the NSW border region to travel to Inverleigh, there is no evidence of business-related travel. Further, had the expense related to travel to or from work, this is considered an expense for personal benefit. Consequently, I find that the fuel purchases of $18,386.19 relate to non-monetary personal benefits for Mr Swadesir.
While the fuel purchases were a non-monetary personal benefit, this sum does not meet the requirement of s.332(1)(b) of the Act on the basis that the sum was not expended on the employee’s behalf as part of their cashable salary or wages.[17] In addition s.332(1)(c) does not apply as there was no agreed monetary value of the benefit between the parties.
Non-monetary benefits may be relevant where the benefit other than the payment of money for which the employee is entitled in return for the performance of work. However, this is provided that the entitlement is prescribed by the Act or Regulations to be for the purpose of assessing an employee’s earnings against the high-income threshold. Mr Swadesir’s fuel purchases are not captured by s.332 of the Act, however, the only regulation that remains open to consideration is regulation 3.05(6) of the Regulations.
Regulation 3.05(6) of the Regulations has been made in respect to s.382 (b)(iii) of the Act. Section 382(b)(iii) provides that a person is protected from unfair dismissal where the annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations,[18] is less than the high income threshold. The non-monetary benefit of fuel purchases does not fit the definition of earnings or the conditions associated with non-monetary benefits under s.332 of the Act, but regulation 3.05(6) may be of relevance.
The regulation allows the Commission a degree of discretion in deciding whether a benefit should be considered as to whether the high-income threshold applies. Relevantly regulation 3.05(6) provides:
Benefits other than payment of money
(6) If:
(a) the person is entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person’s employer; and
(b) the benefit is not an entitlement to a payment of money and is not a non‑monetary benefit within the meaning of subsection 332(3) of the Act; and
(c) the FWC is satisfied, having regard to the circumstances, that:
(i) it should consider the benefit for the purpose of assessing whether the high income threshold applies to a person at the time of the dismissal; and
(ii) a reasonable money value of the benefit has not been agreed by the person and the employer; and
(iii) the FWC can estimate a real or notional money value of the benefit;
the real or notional money value of the benefit estimated by the FWC is an amount for subparagraph 382(b)(iii) of the Act.
I am satisfied that the non-monetary benefit was received by Mr Swadesir and agreed to by the employer. The evidence shows that MCFT paid for fuel that was to be used for personal purposes, the benefit is not a payment of money, nor a benefit as provided for in s.332 of the Act and the Commission can estimate the real or notional value of the benefit. Further, it is appropriate to consider the value of private use of vehicle as a benefit in the calculation of the employee’s earnings.[19]
Where there is no agreed value of the benefit, the Commission has adopted the principles as articulated in Fewings.[20] The approach is as follows:
Determine the annual distance travelled by the vehicle
Determine the percentage of that distance that was for private use
Multiply the two figures to obtain the annual distance travelled for private use
Estimate the cost per kilometre for the vehicle type, the information is available from the RACV or NRMA or like motoring association, and
Multiply the annual distance travelled for private purposes by the estimated cost per kilometre and this equals the value of the motor vehicle component of the remuneration.
In 2022, the RAC estimates the running costs for a new 2020 Ford Ranger at $1610.56 per month, however, this estimate is based on an annual distance of 15,000km for the new cars. MCFT purchased and registered the new vehicle for Mr Swadesir in November 2020. The running cost estimate takes into account on road costs, registration, fuel, servicing, tyres and repairs. MCFT did not provide any costs associated with registration, repairs, tyres or maintenance, but simply fuel. The total distance travelled by the vehicle was an average of 4322.52 kilometres per month. The vast majority of use was personal use. Evidence of personal use was overwhelming, however for the purpose of this exercise if we assume Mr Swadesir used the vehicle for business use at 20%, this still leaves 3458.02 kilometres per month or 41,496.24 per year. The RACV formula allows for a maximum 15,000 kilometres per year, so an average of 1,250 kilometres per month. Based on the average monthly running cost of $1610.56, the per kilometre rate is $1.29. As there is no rate above 15,000 kilometres per year, a conservative estimate of private use using the $1.29 per kilometre at 41,496.24 kilometres per year is a personal value of $53,530.15 per year as Mr Swadesir experienced no out of pocket expenses for use of the fully maintained company vehicle for personal use.
However, MCFT provided the actual vehicle fuel expenses using the credit card only as the farm bowser did not record actual use for a particular vehicle. As mentioned in paragraph [33] I found $18,386.19 of fuel purchases related to non-monetary personal benefits. This is clearly an undervaluation of the value for providing a company vehicle, although should I simply add this value to Mr Swadesir’s wages, his earnings exceed the high-income threshold ($146,120.01 + $18,386.19 = $164,506.20). The more accurate value of the provision of motor vehicle in my view was $53,530.15 per year.
Other credit card purchases
As General Manager, Mr Swadesir had exclusive use of a credit card to conduct farm business. In this case Mr Swadesir used the credit card as he saw fit. Ordinarily s.332 (1)(b) may include salary sacrifice arrangements for an employee’s benefit.[21] In this matter there was no evidence of any salary sacrifice, but rather a decision by Mr Swadesir to use the credit card for his own personal benefit. MCFT submit the extensive use of the credit card for personal meals and other expenses should be taken into account in determining whether Mr Swadesir’s earnings exceeded the high-income threshold. Like the provision of costs associated with a motor vehicle, I do not consider the credit card purchases meet the requirements of s.332 of the Act.
An assessment of the evidence of credit card use shows personal and not operational expenses for Mr Swadesir’s benefit. In fact Mr Swadesir admitted in oral evidence that he was entitled to purchase meals as business costs as he was away from home. I do not agree, the travel to and from work or to medical appointments does not appear to be a business cost, but rather a personal benefit. No evidence has provided to support Mr Swadesir’s claim as neither his employment contract or the Probreed Policies and Procedures book provides no information concerning meal entitlements. MCFT identified $16,819.52 of personal expenses on the company credit card, which allegedly Mr Swadesir instructed the bookkeeper to reconcile as staff amenities. These purchases relate to fast food, bakery purchases, restaurants, Telstra expenses, groceries, pharmacy expenses, carwash, Apple subscriptions, accommodation, and other purchases. While some of those expenses may have even breached the company policies, the fact remains that MCFT agreed to cover the costs incurred by Mr Swadesir over the course of his employment.
On closer assessment of the spreadsheet, I deducted all personal expenses incurred from 2021 until 12 January 2022. The deductions from the gross figure of $16,819.52 included expenses relating to internet subscription, hotel expenses, fast food and café purchases, car wash, pharmacy expenses, Bunnings, and other internet subscriptions including to services provided by Apple. These deductions totalled $6,846.51, leaving a total balance of personal non-monetary benefits at $9,973.01. The remaining personal non-monetary benefits includes internet expenses per month of between $200 to $262, fast food and café purchases, hotel dining, bakery and grocery purchases, pharmacy and tool shopping, accommodation in Sydney and Apple subscriptions. I note that a comparison of the spreadsheet of personal credit card expenses to the initial list of items identified as staff amenities which totalled $18,621.61, does not include pharmacy and accommodation associated with medical appointments, taxi fares, client meal expenses and other fast food or café purchases. I can see that MCFT deducted identifiable expenses associated with workers’ compensation related expenses.
MCTF submit that the credit card was provided to cover costs associated with management of the business. It tendered in evidence records of credit card use which included a range of purchases which it says largely were for personal benefit and not expenses directly associated with operation of the business. From the evidence of credit card use, it can be seen that Mr Swadesir used the card for personal use from 2021 but his use became more prolific from 2022 which was also coincided with his workers’ compensation injury. MCTF submits that it asked from Mr Swadesir to submit receipts and further details regarding use of the credit card, but this detail was not forthcoming.
On the same basis that I considered the relevance and value of motor vehicle in relation to regulation 3.05(6) of the Regulations, I do so find that the use of the credit card for personal use ought to be considered a non-monetary benefit to assess the high-income threshold. However, having considered the wages together with the value of vehicle, Mr Swadesir’s earnings already exceed the high-income threshold.
Conclusion
The question to be determined in this matter was whether Mr Swadesir’s earning were above the high-income threshold having determined that his employment was not covered by either a modern Award or enterprise agreement. Having considered the evidence relating to wages and the non-monetary benefits of personal use of company vehicle and credit card purchases against the provisions in the Act and relevant regulations, I have determined that Mr Swadesir did not meet the requirement of s.382 nor s.332 of the Act to have protection from unfair dismissal under the Act.
On the actual recorded expenses against the company credit card, I have determined that the total earnings together with wages for Mr Swadesir was as follows:
$146,120.01 wages excluding superannuation contributions
$ 18,386.19 fuel purchase for personal use
$ 9,973.01 personal credit card non-monetary benefits
__________
$174,479.21
However, as dealt with earlier in the decision, the value of vehicle is based on inclusion of other on road and maintenance costs, in addition to fuel and therefore the value of vehicle is more likely to be $53,530.15 based on vehicle use which brings Mr Swadesir’s earnings to $209,623.17 per annum.
The application is accordingly dismissed.
An order[22] to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr B.R. Swadesir on his own behalf.
Mr M. Clark for the Respondent.
Hearing details:
10 March 2023
Melbourne (By Video using Microsoft Teams)
[1] Hearing book, Applicant’s Materials, Contract of employment, ‘BS1’ signed 15 October 2020 to start on 1 November 2020.
[2] Hearing book, Respondent’s Materials, Respondent’s Outline of argument: objections, 121.
[3] Hearing book, Applicant’s Materials, Form F2, 13.
[4] Hearing book, Applicant’s Materials, Outline of Submissions – Applicant, 45.
[5] Hearing book, Applicant’s Materials, Pay Slip for Brad Swadesir, 49.
[6] Hearing book, Respondent’s Materials, Respondent’s Outline of argument: objections, 121.
[7] Fair Work Act 2009 (Cth) s.332 (1)(a).
[8] Ibid sub-s (1)(b).
[9] Ibid sub-s (1)(c).
[10] Ibid sub-s (1)(d).
[11] Ibid sub-s (2)(a).
[12] Ibid sub-s (2)(b).
[13] Ibid sub-s (2)(c).
[14] Ibid sub-s (2)(d).
[15] Hearing book, Respondent’s Materials, Probreed Policies and Procedures 2020.
[16] Ibid
[17] See Robinson v A J Gandel[2013] FWC 4583 at [41] – [42].
[18] Emphasis added.
[19] Monteiro v Valco Group Australia Pty Ltd[2019] FWC 2410 at [17] and Rofin Australia Pty Ltd v Newton (1997) 78 IR 78, 82.
[20] Kunbarllanjnja Community Government Council v Fewings Print Q0675, 7 May 1998.
[21] See Tuohy v Polyfoam (Aust) Pty Ltd [2010] FWA 9112 at [56].
[22] PR761488.
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