Bradley Scott Carlin-Smith v Neirbo Real Estate Pty Ltd T/A Homes Group Estate Agents

[2017] FWC 2778

[2017] FWC 2778

The attached document replaces the document previously issued with the above code on 19 May 2017.

The document has been edited to correct a typographical error in the Respondent’s name by deleting “Neibo Real Estate Pty Ltd” and inserting “Neirbo Real Estate Pty Ltd” wherever appearing.

Andrea Kerley

Relief Associate to Deputy President Gooley

Dated 24 May 2017

[2017] FWC 2778

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bradley Scott Carlin-Smith
v
Neirbo Real Estate Pty Ltd T/A Homes Group Estate Agents
(U2017/3183)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 MAY 2017

Application for relief from unfair dismissal

[1] Mr Bradley Carlin-Smith was employed by Neirbo Real Estate Pty Ltd until his employment was terminated on 3 March 2017. Neirbo objected to Mr Carlin-Smith’s unfair dismissal application because it said Mr Carlin-Smith earned more than the high income threshold.

[2] This matter was set down for hearing Neirbo’s objection at 11.45am on 19 May 2017. At 11.18am on the day of the hearing, Mr O’Brien of behalf of Neirbo advised by email that he would not be attending the hearing. No reason for his non-attendance was provided in this email nor did he advise if he was withdrawing his objection.

[3] In the outline of argument filed by Neirbo, Neirbo claimed that Mr Carlin-Smith earned $150,000 per annum.

[4] As a consequence I caused to be sent to the parties an email on 15 May 2017 which set out the s.332 of the Fair Work Act 2009 which defines what is included and excluded from an employee’s earnings when calculating whether the employee’s earnings exceed the high income threshold.

[5] In addition I advised that amounts which cannot be determined in advance included commissions; incentive based payments and bonuses; overtime (except guaranteed overtime); reimbursements; and compulsory contributions to a superannuation fund.

[6] Prior to the commencement of the hearing I provided Mr Carlin-Smith a copy of the classification structure of the Real Estate Industry Award 2010 and a decision of Deputy President Gostencnik 1 which addressed the coverage of the Award.

[7] Mr Carlin-Smith gave evidence at the hearing that he was employed as a licensed real estate agent. I took Mr Carlin-Smith through the classification of property sales representative in the Award and he indicated that he performed all those tasks.

[8] I am therefore satisfied that Mr Carlin-Smith was covered by the Award and hence the objection raised by Neirbo must fail.

[9] However if I am wrong about this, then the question to be determined is whether Mr Carlin-Smith earned more than the high income threshold of $138,900.

[10] Mr Carlin-Smith gave evidence that he did not have a letter of offer or a written contract of employment. He said it was agreed that he be paid $8000 per month net. This amount he said was not inclusive of superannuation. Mr Carlin-Smith tendered a payslip which showed his gross weekly earnings to be $2654 per week which is an annual income of $138,387.14.

[11] As this amount is less than the high income threshold and there is no evidence before me that Mr Carlin-Smith received any other amounts that should be included in the calculation, I am satisfied that his annual earnings were less than the high income threshold and as such was protected from unfair dismissal.

[12] His application will now be referred for determination.

DEPUTY PRESIDENT

Appearances:

Mr Carlin-Smith on his own behalf

Hearing details:

2017.

Melbourne:

19 May.

 1   [2017] FWC 2623

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