Hoani Te Heu Heu (“John”) Tukino v Unit Technologies Pty Ltd

[2012] FWA 9870

[2012] FWA 9870

FAIR WORK AUSTRALIA

DECISION

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

Hoani Te Heu Heu (“John”) Tukino
v
Unit Technologies Pty Ltd
(U2012/9307)

COMMISSIONER MCKENNA SYDNEY, 20 DECEMBER 2012

Application for unfair dismissal remedy – high income threshold – whether application out of time.

[1] The applicant, Hoani Te Heu Heu (“John”) Tukino, has lodged an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy concerning his dismissal by Unit Technologies Pty Ltd (“the respondent”). The respondent took preliminary objection to the application on two principal bases. The respondent contended the applicant’s income was above the high income threshold and further contended the application was out of time.

[2] On 5 October 2012, the Fair Work Australia Unfair Dismissal Team (“UDT”) issued directions in anticipation of proceedings listed in Brisbane on 20 November 2012 to deal with the dual issues concerning the high income threshold and extension of time in circumstances where the respondent had raised objection to the application.

[3] Prior to the allocation of the file to me, the respondent made an application that the proceedings be conducted by teleconference and, in so applying, noted the applicant had not filed and served any materials pursuant to the directions. Further, following the allocation of the file to me, the applicant’s solicitor raised issues about the UDT’s directions presupposing the application had been made out of time. In the circumstances, I listed the matter for a mention by telephone on 16 November 2012, prior to the proceedings scheduled for 20 November 2012.

[4] Among other submissions, the applicant’s solicitor apologised for the fact the applicant’s materials had not been filed and served pursuant to the directions. The applicant’s solicitor submitted the non-compliance was entirely attributable to him personally rather than to his client. The applicant’s solicitor undertook to attend to the filing and service of materials by 19 November 2012.

[5] Although the respondent was at some disadvantage as a result of the late filing and service of the applicant’s materials, the respondent’s representative submitted at the outset of the proceedings on 20 November 2012 that he did not object to proceeding notwithstanding the applicant’s late materials.

High income threshold

[6] The respondent submitted that the applicant’s offer of employment indicated the annual salary was $90,000.00 gross. In addition to this annual salary, the respondent relied on a motor vehicle valued at $14,500.00, a performance bonus of $20,000.00, a clothing allowance valued at $3,000.00, mobile telephone usage valued at $1,200.00, a mobile telephone valued at $500.00 and a laptop computer valued at $2,000.00.

[7] While the applicant agreed that his annual salary was $90,000.00, he contended the vehicle was used for work purposes. The applicant was not aware of the basis on which the respondent had formulated the value of $14,500.00 with respect to the motor vehicle. The applicant’s evidence indicated he had never received the performance bonus of $20,000.00. The applicant confirmed he had been provided with some clothing; however, this was not part of his salary package. The applicant’s evidence was that when he commenced employment with the respondent he was required to wear company clothing for work purposes; the applicant valued the clothing at about $300.00 to $500.00. The applicant’s evidence was that the mobile telephone was used for business purposes only, except when he was absent on business (there had been issue about a high telephone bill when the applicant had made personal telephone calls while overseas; the applicant’s offer to pay for these charges was declined by the respondent). The applicant similarly indicated that the “second hand” laptop was provided to him for business purposes. Both the mobile telephone and the laptop were returned to the respondent when the employment relationship terminated.

[8] The applicant’s solicitor submitted there had been no attempt by the respondent to justify the asserted monetary values, other than the salary of $90,000.00. It would have been a simple matter, it was submitted, for the respondent to have provided evidence of the use of the telephone and motor vehicle by reference to fringe benefits tax records. The use of the equipment was exclusive to the business of the respondent; there was no “agreed” value for any of the asserted non-monetary benefits as required before they can be taken into account in assessing the applicant’s income; and the applicant was never paid a bonus.

Consideration – High income threshold

[9] There was no suggestion the applicant’s employment was subject to coverage by an industrial instrument. The relevant high income threshold was $123,300.00 as at the date of the dismissal. While it was agreed the salary was $90,000.00 (with nine per cent superannuation), the parties were in disagreement about the additional amounts. The applicant’s contention that the motor vehicle was never used for private purposes did not withstand cross-examination, as the applicant apparently used the vehicle to, for example, drive between his home and work. In this respect, the applicant’s contract indicated that the vehicle allocated to him was available for “business and reasonable private use”. The respondent contended the value of the motor vehicle was $14,500.00, but nothing was put in the respondent’s case as to how that valuation was calculated, percentage usages or the like.

[10] The applicant’s contract of employment specified a contingent annual performance bonus of $20,000.00. It was common ground the bonus was not paid to the applicant and, thus, the contingent amount of $20,000.00 relied on by the respondent in its objection may be disregarded.

[11] The respondent provided the applicant with a mobile telephone (the respondent’s policies prohibited making “excessive personal mobile calls” and sending and receiving personal SMS messages), a laptop computer and company clothing to wear for work.

[12] While I accept that there would have some benefit to the applicant in the provision of the non-salary components described by the respondent, as may be relevant to the high income threshold (see, for example, s.382 of the Act and reg.3.05 of the Fair Work Regulations 2009), the respondent’s case was not sufficiently developed such as to establish that the application should be dismissed on the basis the applicant’s income exceeded the high income threshold. On what has been advanced by the respondent, the values of certain amounts were asserted - but those values were indeterminate or otherwise not established to my satisfaction. In short, I have not been satisfied, on what has been advanced in the respondent’s case, as to acceptance of the respondent’s high income threshold objection.

Timeliness of the application

[13] The applicant and the respondent were in disagreement about whether the application had been lodged within time.

[14] By way of background, the applicant was dismissed on 25 July 2012. On 2 August 2012, the applicant lodged the application for an unfair dismissal remedy. The application was lodged electronically within time but was not signed or dated. On the same day the application was lodged, Fair Work Australia sent correspondence to the applicant’s solicitor. The correspondence advised, among other matters, that as the application was not signed and/or dated, the application form needed to be signed and returned to Fair Work Australia. In correspondence dated 15 August 2012, the applicant’s solicitor advised Fair Work Australia that the application lacked a signature as the application was completed online. The applicant’s solicitor confirmed a signed copy of the application would be returned to Fair Work Australia and that the applicant wished to proceed with the application. It appears (from a facsimile transmission header) that on 11 September 2012 a copy of the application was forwarded by facsimile transmission to Fair Work Australia bearing a signature and a date of 2 August 2012 (it is not clear, but this seems to have been back-dated). Thus, there was a not insubstantial time-lag from the date the unsigned application was lodged electronically and the provision of the signed version.

[15] It was common ground that the applicant electronically lodged (e-filed) an unsigned application within time but that a signed application form was not lodged within time.

[16] The applicant’s solicitor submitted there is no requirement under the Act or the Regulations for the application to be signed when lodged; and, even if there were such a requirement, the lack of a signature should be considered as a mere irregularity rather than a matter of substance. The applicant’s solicitor submitted there is no suggestion that a follow-up, signed paper copy is required unless an application has been made by telephone, which was not the case here. Among other matters, the applicant’s solicitor submitted that Fair Work Australia had in fact accepted the application and the applicant took steps to remedy the situation as soon as he became aware of it.

[17] The respondent submitted the applicant did not correctly lodge the application for an unfair dismissal remedy within time and further submitted there were no exceptional circumstances for an extension of time. (It may be noted that the respondent’s submissions proceeded on the basis that the signed application was lodged on 15 August 2012, but it appears the date was 11 September 2012 considering the facsimile transmission header. One way or another, the signed version of the application was not lodged within time.)

Consideration - timeliness

[18] It seems to me that the application was lodged within time, but it was partially incomplete as the electronically lodged application did not contain a (scanned) signature. The applicant’s application should have been signed, even if it was lodged electronically. I note it is not uncommon, however, for applications to be lodged without being fully complete. In this case, the provision of (however described) an amended, corrected or completed application form after the initial electronic lodgement of an unsigned application form does not seem to me to constitute a discrete (late) application separate from the initial application that was electronically lodged within time. Although not referred to, also see generally Chalker v Melbourne Bus Link[2012] FWA 3399.

[19] In view of my conclusion the application was not lodged out of time, there is no need to further consider whether there are exceptional circumstances in support of an extension of time.

Conclusion

[20] The file will now be remitted to the UDT for further directions and programming.

COMMISSIONER

Appearances:

R. Winter, solicitor for the applicant.

A. Morris of the respondent.

Hearing details:

2012.

Brisbane:

20 November.

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