Kevin Kininmonth v Boom Logistics Ltd

[2015] FWC 4197

[2015] FWC 4197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Kininmonth
v
Boom Logistics Ltd
(U2015/1514)

COMMISSIONER ROE MELBOURNE, 22 JUNE 2015

Unfair dismissal - high income threshold.

[1] Mr Kininmonth has made an unfair dismissal application and Boom Logistics Ltd (Boom Logistics) argues that there is no jurisdiction to hear the application because Mr Kininmonth earned more than the high income threshold of $133,000.

[2] Mr Kininmonth submitted that the jurisdictional objection was a device to avoid proper consideration of what he says was a strong argument that the termination of his employment was unfair. Mr Kininmonth did not challenge the earnings figures submitted by Boom Logistics. He pointed out that he did not work the full financial year 2014-2015 because of the dismissal. He was, however, employed since 2010 so it is possible to consider the year prior to the termination as the basis for the annual rate of earnings at the time of the termination of his employment. Mr Kininmonth sought to be excused from attendance at the listed hearing due to family illness. I put to Mr Kininmonth and he agreed that the facts concerning the earnings were not in contest. Therefore the matter should be determined on the written material provided by the parties.

[3] Boom Logistics provided uncontested evidence that Mr Kininmonth’s annual earnings are as follows:

a. Base salary $94,700 per annum
b. Higher duties allowance $10,751 payable on a monthly basis
c. Job allowance of $10,000 paid in lieu of overtime
d. Location allowance of $50,000 per annum
e. Provision of fully maintained company vehicle
f. Provision of fully paid mobile phone
g. Provision of company housing in Karratha capped at $2000 per week
h. Superannuation of $1309.84 per month or $15,718.08 per annum. 1

[4] The high income threshold relates to gross, not after tax earnings. The legislation excludes statutory superannuation contributions, reimbursements, and amounts which cannot be determined in advance such as incentive based payments, bonuses and overtime unless overtime is guaranteed. The provision of company housing is also not a payment which is an amount applied or dealt with on the employee’s behalf or as the employee directs 2. The provision of company housing is a reimbursement or is not a benefit which falls within s.332(3) of the Fair Work Act 2009 or the reg.3.05(6) of the Fair Work Regulations 2009. On this basis, I am satisfied that the amounts in (g) and (h) above are excluded when considering the high income threshold.

[5] The termination payment to Mr Kininmonth was $13,787.74 gross for one month’s salary and this payment included base salary, higher duties allowance, job allowance and location allowance. 3

[6] I am satisfied by the evidence of Boom Logistics that, the job allowance and the location allowance were guaranteed payments the amount of which was known in advance. I am also satisfied that these payments were not reimbursements. The contract of employment was for a position in Karratha and the location allowance was therefore payable whilst the contract was in place. The job allowance was a guaranteed payment in the contract of employment. The higher duties allowance was only payable for the duration of the period when Mr Kininmonth was doing the job of Acting Operations Manager. As the duration of this was not guaranteed or known I am not satisfied that the amount can be determined in advance. The amounts in (a), (c) and (d) must be included. The amount in (b) must be excluded. It is not necessary to consider the issue of any non-monetary benefit which might be applicable in respect to the company vehicle and phone 4. The included amounts total $154,700 which is more than the high income threshold.

[7] As Mr Kininmonth earns more than the high income threshold he cannot make the application unless he is covered by an Award or an Agreement. Mr Kininmonth is employed as a supervisor. He was managing a crane fleet and associated work in the construction and mining industry. The Mobile Crane Hiring Award 2010 does not cover supervisors. The Building and Construction General On Site Award 2010 does not cover supervisors at this level. The work is not covered by the Manufacturing and Associated Industries and Occupations Award 2010. There are a number of Agreements which cover Boom Logistics in the Western Australia but none of them include classifications at the level of Mr Kininmonth’s job. I am satisfied that there is no Award or Agreement which covers him.

[8] Mr Kininmonth is not protected from unfair dismissal because he earns more than the high income threshold.

[9] The application is dismissed and an order to this effect will be issued.

COMMISSIONER

 1   Respondent’s Outline of Argument: Objection.

 2 Section 332(1)(b) of the Fair Work Act 2009 (Cth).

 3   Witness Statement of Rosanna Hammond.

 4   Respondent’s Outline of Argument: Objection.

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