Lesley Mallows v Touchbase Asia Pacific Pty Ltd T/A Touchbase Asia Pacific
[2011] FWA 1695
•18 MARCH 2011
[2011] FWA 1695 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Lesley Mallows
v
Touchbase Asia Pacific Pty Ltd T/A Touchbase Asia Pacific
(U2010/13918)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT | SYDNEY, 18 MARCH 2011 |
[1] This decision relates to a jurisdictional objection raised by Touchbase Asia Pacific Pty Ltd trading as Touchbase Asia Pacific (the Company) to an application for an unfair dismissal remedy made by Ms Lesley Mallows (the Applicant). The basis for the jurisdictional objection is that the Fair Work Act 2009 (the Act) unfair dismissal provisions do not apply to the Applicant because her annual rate of earnings is above the high income threshold.
[2] Section 382 provides than an employee is protected from unfair dismissal if at the time of dismissal the sum of the person’s annual rate of earnings, and such any other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold (see s.382(b)(iii)).
[3] The meaning of high income threshold is set out in s.333 of the Act which provides that the high income threshold is prescribed by, or worked out in the manner prescribed by, the regulations. Regulation 2.13 of the Fair Work Regulations 2009 provides the methodology used to establish the high income threshold. The current high income threshold is $113,800.
[4] The evidence regarding the Applicant’s annual rate of earnings indicates that the Applicant’s remuneration package included a gross basic salary of $90,000 per annum; a Performance Pay target of $15,000 per annum and a car allowance of $12,000 per annum.
[5] Further evidence indicates that during the financial year ending 30 June 2010 the Applicant was paid $123,109 consisting of gross payments of $111,109 and a car allowance of $12,000.
[6] The Company submitted that this showed the Applicant was above the high income threshold. The Applicant submitted that these figures included various payments which it is not appropriate to take into account in the calculations of her annual rate of earnings for the purposes of the high income threshold, namely the commission or bonus payments in relation to the Company’s Performance Payment scheme and overtime.
[7] On the basis of the evidence and material before me, I do not consider that the amounts included for the performance related bonus and overtime should be included as they are payments for which the amount cannot be determined in advance (see s.332(2)(a) and the legislative note following that paragraph).
[8] In the result, it is clear that the sum of the Applicant’s annual rate of earnings and other relevant amounts is below the high income threshold and therefore that the jurisdictional objection should be dismissed.
[9] It is noted that there are other jurisdictional issues that have been raised by the Company and that these will be considered in the course of the substantive proceedings in this matter.
SENIOR DEPUTY PRESIDENT
Appearances:
M. Rosenblatt, solicitor for Touchbase Asia Pacific Pty Ltd
P. Netto, solicitor for Lesley Mallows
Hearing details:
Sydney
2011
March 18
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