Carr v Norton Gold Fields Limited

[2016] FWC 2376

[2016] FWC 2376

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Andrew Carr
v
Norton Gold Fields Limited
(U2016/4120)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 14 APRIL 2016
Application for relief from unfair dismissal.

[1]        Mr Andrew Carr was employed by Norton Gold Fields Limited until his employment

was terminated on 15 January 2016. Norton objected to Mr Carr’s unfair dismissal application

because it said he earned more than the high income threshold.

[2]        Mr Carr was employed as Shift Supervisor and it was not disputed that his

employment was not regulated by an award or an enterprise agreement.

[3]        The question then to be determined is whether Mr Carr earned more than the high

income threshold of $136,700.

[4]        Section 332 of the Act defines employee earnings and excludes certain things. Where

relevant it reads:

"332 Earnings

(1) An employee's earnings include:

(a) the employee’s wages; and

....

(2) However, an employee's earnings do not include the following:

(a) payments the amount of which cannot be determined in advance;

... ...

Note: Some examples of payments covered by paragraph (a) are commissions,

incentive-based payments and bonuses, and overtime (unless the overtime is

guaranteed)."

[5]        It was not disputed that Mr Carr’s base salary was $127,920. There was further no

dispute that in addition to this, Mr Carr was paid for one additional day per rostered swing.

This arrangement was introduced prior to Mr Carr’s appointment as Shift Supervisor to

provide supervisors with adequate shift handover. When Mr Carr was offered a full time shift

supervisor position he agreed to this roster pattern. Mr Carr was required to work this

additional shift as part of his normal roster. It was not disputed that on 7-9 occasions Mr Carr
[2016] FWC 2376

was on training on these days but the payment remained unchanged and it was not contested

that had he not been training he would have been required to be at site for the shift

changeover day.

[6]        It was not contested that such an arrangement meant that Mr Carr’s annual rate of

earnings was $146,144.18.

[7]        As such it was not disputed that Mr Carr earned more than the high income threshold

and therefore was not protected from unfair dismissal and as such his application must be

dismissed.

DEPUTY PRESIDENT

Appearances:

Mr A Carr on his own behalf.

Mr P Robertson for the Respondent.

Hearing details:

2016.

Perth (by telephone);

April 13.

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