Leanne Lawson v Novetec Building Products

[2013] FWC 300

[2013] FWC 300

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leanne Lawson
v
Novetec Building Products
(U2012/9852)

COMMISSIONER JONES MELBOURNE, 25 JANUARY 2013

Application for unfair dismissal remedy - jurisdictional objection - high income threshold.

Background

[1] Ms Leanne Lawson (the Applicant) has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). Her employer, Novetec Building Products (the Respondent) objects to the application. The Respondent argues the Applicant is not a person protected from unfair dismissal as she was not covered by a modern award, an enterprise agreement did not apply to her employment and the sum of her annual rate of earnings, determined in accordance with the Act, was above the high income threshold.

[2] A hearing was held on 21 December 2012 and a decision issued on 27 December 2012 which, inter alia, directed the Respondent to file further information and provided for written submissions by both parties in relation to this information. 1

Background

[3] It is useful to briefly repeat the background facts to this matter. At the time of her dismissal, the Applicant was employed in the position of State Sales Manager, having commenced in this position in July 2011. 2

[4] The Applicant’s Contract of Employment relevantly provided:

21. Company Vehicle

21.1 You will be provided with a fully serviced motor vehicle.

21.2. You may use the vehicle for private use but only in accordance with Novetec’s policies on motor vehicle use. 3

[5] The Respondent’s Motor Vehicle Policy provided for various categories of vehicles allocated within the organisation. These were tool of trade vehicles, package entitlement vehicles, salary sacrifice and pool vehicles. 4 The undisputed evidence is that the motor vehicle provided to the Applicant was a Holden Calais provided under the tool of trade category of the Respondent’s policy.5

[6] The Applicant commenced employment with the Respondent on 1 June 2011 in the position of Business Development Manager. The remuneration package offered and accepted by the Applicant on 11 May 2011 was expressed to comprise the following:

The remuneration package offered comprises the following:

● Salary: $100,000

● Superannuation: $9,000

● Motor vehicle benefit: $18,000 approx.

Total: $127,000

Subject to the satisfactory completion of a probationary period this increases to the following:

● Salary: $108,000

● Superannuation: $9,720

● Motor vehicle benefit: $18,000 approx.

Total: $135,720 6

[1] There is no dispute that the Applicant had completed her probationary period and that she held the position of State Sales Manager from 20 July 2011 until her dismissal on 19 September 2012.

[2] The Respondent submits that, as the agreed value of the private use of the motor vehicle in the Applicant’s contract of employment was ‘$18,000 approx’, this amount should be included in the calculations. When included the Applicant’s earnings amount to $126,000 which exceeds the relevant high income threshold (which at the time of the Applicant’s dismissal was $123,300). The Respondent submits that…