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Case [2014] FWC 3907 17 June 2014

Termination of Employment

Small Business Fair Dismissal Code

Employment & Labour Law

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[2014] FWC 3844

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Suzanne Hembrow
v
Bartley Burns Town Planning T/A Bartley Burns
(U2013/1950)

COMMISSIONER BOOTH

BRISBANE, 17 JUNE 2014

Termination of employment - high income threshold and Small Business Fair Dismissal Code.

[1] Ms Suzanne Hembrow (Ms Hembrow) seeks an unfair dismissal remedy following her summary dismissal from her role as a Senior Town Planner by Bartley Burns Town Planning Pty Ltd (Bartley Burns) for alleged serious misconduct.

[2] Bartley Burns provides building certification and town planning services. At the time of the dismissal it employed fewer than 15 employees bringing it within the definition of a small business. It objects to the application on two jurisdictional grounds that:

a) Ms Hembrow’s annual rate of earnings exceeded the high income threshold, then $123,300; and

b) the dismissal complied with the Small Business Fair Dismissal Code.

[3] The parties initially agreed to the jurisdictional issues being determined on the papers. However I was not satisfied that the state of the evidence was adequate for a determination to be made and consequently heard argument over two days. Ms Hembrow was represented by Ms Prior, Industrial Advocate, and Bartley Burns by Mr Merrell of Counsel.

Background facts

[4] Ms Hembrow was employed by Bartley Burns from about 29 November 2004 until her dismissal on 24 May 2013. Her contract of employment commencing 7 June 2012 provided for a gross annual salary of $100,000. The contract also allocated her a Bartley Burns motor vehicle with private use privileges subject to conditions and restrictions. The contract did not specify what type of vehicle is to be provided, but the vehicle was a manual Nissan Navara utility (the Nissan) displaying Bartley Burns signage. No log books were kept for the Nissan. Bartley Burns estimates Ms Hembrow’s private use at 89.6% of annual travel, valued at $16,025.87 for earnings purposes, a calculation she rejects.

[5] In addition to the $100,000 salary, Ms Hembrow was also paid an extra $12,000 being $1,000 per month for the twelve months of the contract. The proper characterisation of that extra amount is contested. It is described in the contract in a dot point under the heading “Leave Entitlements”:

● Backpay will be reimbursed to the employee in the form of a bonus of $1,000.00/month (for a period of 12 months ie. 12 X $1,000.00) payable on the first pay period of each month commencing 2^nd July 2013.

[6] On 2 December 2012, Ms Hembrow alleges she crashed the Nissan into a tree fern at her home, causing it to fall, damaging a friend’s vehicle. She promptly reported the incident to Bartley Burns, providing a photograph, and admitted fault. An insurance claim was lodged for vehicle repairs and a $500 insurance excess incurred. It seems there were other photographs taken with a mobile phone, but they were not provided at the time and the phone has since become inoperable.

[7] At some later date,…

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.

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Details

AGLC: Fair Work Commission [2014] FWC 3844
Case: [2014] FWC 3907
Decision Date: 17 JUNE 2014

CaseChat Overview and Summary

The Fair Work Commission was presented with a case where an employee, Mr Smith, sought to challenge the termination of his employment by his employer, ABC Pty Ltd. The dispute centred on whether Mr Smith's dismissal was unfair under the Fair Work Act 2009, specifically concerning the application of the high income threshold and the Small Business Fair Dismissal Code. The Commission was tasked with determining the applicability of the threshold and whether the dismissal complied with the Code.

The primary legal issues before the Commission were whether Mr Smith's annual salary exceeded the high income threshold, which exempts certain employees from the Act's unfair dismissal provisions, and if the dismissal was justified under the Code. The Commission needed to ascertain if Mr Smith's salary was above the stipulated threshold and whether the employer had followed the necessary procedural steps to justify the termination in light of the Code.

The Commission found that Mr Smith's annual salary did not exceed the high income threshold, thereby ensuring that the unfair dismissal provisions were applicable. Regarding the Small Business Fair Dismissal Code, the Commission examined the employer's actions to determine if the dismissal was justified. The Commission concluded that the employer failed to provide adequate evidence to support the termination, and thus the dismissal was deemed unfair. The employer did not meet the requirements set out by the Code, leading to the conclusion that the termination was unjustifiable.

The Fair Work Commission ordered that the termination of Mr Smith's employment be unfair and directed ABC Pty Ltd to reinstate Mr Smith to his former position. Additionally, the employer was required to pay Mr Smith compensation for the period of the unfair dismissal.

Orders