Gregory Alan Ross v Bridgewood Pty Ltd - [2022] FWC 1687

[2022] FWC 1687

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Gregory Alan Ross
v

Bridgewood Pty Ltd

(U2020/14705)

COMMISSIONER WILLIAMS

PERTH, 1 JULY 2022

Application for an unfair dismissal remedy

This decision concerns an application made by Mr Gregory Ross (the applicant) for an unfair remedy under section 394 of the Fair Work Act 2009. The respondent is Bridgewood Pty Ltd (the respondent).

The respondent objects to the application on the ground that it asserts that the applicant is not protected from unfair dismissal by virtue of section 382 of the Act, because the sum of his annual rate of earnings and other amounts is more than the high-income threshold.

The history of the proceedings in this matter is somewhat complex which reflects the vigorous advocacy pursued by both parties against the other, regrettably somewhat out of proportion with the weight of the issues in dispute.

Hearings were first held in March 2021 and were continued in June 2021. Following this the parties filed written closing submissions.

However, in early August 2021 the respondent became aware of matters that caused it to doubt the accuracy of the applicant’s evidence and closing submissions. Consequently, the respondent then applied to the Commission to reopen the hearing in order to lead further evidence concerning the applicants then current employment status and the quantum of remuneration earned by him since the end of his employment with the respondent and his then current and likely future earnings.

Consequently, the Commission convened a further hearing in October 2021 to hear from the parties regarding the application to reopen the substantive hearing. A decision was issued by the Commission on 22 October 2021 to the effect that the hearing would be reopened and various orders to produce documents and for witnesses to attend were issued.

Following this a further day of hearing of the substantive application was held in December 2021 and final written submissions were provided by both parties thereafter.
Following this the respondents have made an application for costs which will be considered by the Commission after this decision, dealing with the respondent’s high income threshold objection and the substantive application is issued.

At the hearing of this matter the applicant Mr Ross gave evidence and in support of his application his wife, Mrs Caroline Ross, also gave evidence. For the respondent, evidence was given by Ms Tania Sydney – Smith the Chief Financial Officer and Company Secretary of the Lane Group.

The respondent is one of the businesses within the Lane Group of companies. Ms Sydney Smith is also a director and secretary of the respondent. Mr Colin Lane one of the owners of Bridgewood Pty Ltd and Peel Motors Pty Ltd also gave evidence for the respondent.

Evidence and factual findings

The applicant was employed as the dealer principal of Mandurah Auto Pty Ltd in December 2013.

The applicant says that in 2016 Ms Sydney Smith, on behalf of the Lane Group, was assisting with a plan to…

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

Case: [2022] FWC 1687
Decision Date: 1 JULY 2022

CaseChat Overview and Summary

The applicant, Mr Ross, made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 against his former employer, Bridgewood Pty Ltd. The respondent objected to the application on the ground that Mr Ross was not protected from unfair dismissal under section 382 of the Act because his annual rate of earnings and other amounts exceeded the high-income threshold. The Commission was required to decide whether the sum of Mr Ross’s annual rate of earnings and other amounts worked out in relation to him in accordance with the regulations was less than the high-income threshold of $153,600 per annum, which was a prerequisite for a person to be protected from unfair dismissal. The Commission also needed to consider whether Mr Ross’s dismissal was harsh, unjust or unreasonable.

The Commission found that Mr Ross had received a benefit in accordance with an agreement between himself and the respondent being the use of two cars, one for himself and one for his wife. This benefit was not an entitlement to a payment of money nor a non-monetary benefit within the meaning of subsection 332(3). The Commission was satisfied that the Commission should consider this benefit for the purpose of assessing whether the high income threshold applied to Mr Ross at the time of his dismissal and that no money value of this benefit had been agreed by the applicant and respondent. However, the available evidence simply did not allow the Commission to make an approximate calculation of the annual distance travelled by both of the cars nor to make an approximate calculation of the percentage of that distance that was private use for both of the cars. Consequently, the Commission was not satisfied that it could estimate a real or notional value of the benefit of the two cars provided to Mr Ross. The Commission also found that Mr Ross had received the benefit of personal use of a mobile phone in accordance with an agreement between himself and the respondent. The charges for the mobile phone used by Mr Ross were $3,747.70. The amount of the benefit derived by Mr Ross from the personal use of the mobile phone provided by the respondent was $749.54. Consequently, applying regulation 3.05 the monetary value of the benefit of personal use of the mobile phone to Mr Ross was $749.54. Then applying section 382 (b)(iii) the sum of the applicant’s annual rate of earnings ($144,000) and the amount worked out in accordance with the regulations ($749.54) equals $144,749.54. The figure of $144,749.54 was less than the high-income threshold that applied to this application which was $153,600. Consequently, the applicant under the terms of section 382 was a person protected from unfair dismissal. The Commission dismissed the respondent’s jurisdictional objection.

The Commission found that in 2020 the Nissan dealership was performing poorly and had been for some years. The applicant in his evidence however rejected Nissan’s critique of the dealership’s performance under his leadership. He disputed the validity of their metrics and viewed their criticisms as unreasonable. The applicant also admitted to a number of individual poor decisions that were costly for the business. However, the respondent never made it clear to the applicant that if his performance did not improve he would be dismissed. Consequently, at the time he had no opportunity to respond before he was dismissed. The Commission found that the dismissal was harsh and unjust because the respondent failed to provide Mr Ross with a proper opportunity to respond to the respondent’s concerns and to demonstrate improvement. The Commission ordered that compensation of $3,229 be paid to Mr Ross within 21 days of the date of the order.

Orders