Mark Jolley v Moorelex Pty Ltd T/A Lexus of Blackburn

[2017] FWC 1262

[2017] FWC 1262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Jolley
v
Moorelex Pty Ltd T/A Lexus of Blackburn
(U2017/232)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 MARCH 2017

Application for an unfair dismissal remedy.

[1] Mr Mark Jolley was employed by Moorelex Pty Ltd trading as Lexus of Blackburn until his employment was terminated on 30 December 2016. Moorelex objected to Mr Jolley’s application because it said he earned more than the high income threshold.

[2] At the hearing I granted Mr Butler, a legal practitioner, permission to appear. Lexus of Blackburn had no in house human resources personnel and I accepted the submission that it was not able to represent itself effectively and it would be unfair to require it to represent itself. Mr Jolley did not oppose permission being granted.

[3] Mr Jolley was employed as the General Manager at Lexus of Blackburn. There is no dispute that at the date of his dismissal his annual salary was $150,000. He submitted that in determining whether his remuneration exceeded the high income threshold his wage should be averaged over the previous twelve months. There was no dispute that Mr Jolley’s employment was not covered by a modern award or enterprise agreement.

[4] While there was a dispute about the value to ascribe to other benefits received by Mr Jolley, it is not necessary to resolve that dispute as the matter can be determined on the undisputed fact that at the date of the dismissal Mr Jolley’s base remuneration was $150,000.

[5] Mr Jolley submitted that it would be unfair to calculate his annual rate of earnings at the date of his dismissal because his wage had only been increased in October 2016. He submitted that to calculate the rate at the date of termination would enable employers to increase the base salary of employees prior to dismissal so as to avoid being liable for unfair dismissal.

[6] The Full Bench in Francesco Zappia v Universal Music Australia Pty Ltd 1 addressed this issue and held as follows:

[8] His Honour dealt with the annual rate of earnings aspect thus:

[9] ... The most natural way of construing the expression annual rate of earnings in s.382 is by reference to the annual rate of earnings at the time of the applicant’s dismissal. If Parliament had wished to refer to the average amount earned over the previous 12 months it could easily have done so. I note, for example, that in setting the compensation cap in relation to unfair dismissal, s.392 specifically refers to the amount that the employee received (or was entitled to) during the 26 week period immediately before the dismissal.

[9] On the appeal, Mr I Latham, of counsel, who appeared for the appellant both at first instance and on the appeal, submitted that his Honour had erred in his construction of the expression ‘annual rate of earnings’. In our view his Honour was clearly correct. Section 382 of the Act relevantly provides that a person is protected from unfair dismissal at a time if, at that time, the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold. It is clear that the time at which the annual rate of earnings must be ascertained is at the time of the termination of the person's employment. What needs to be ascertained is the annual rate of earnings at that time, not the annual earnings to that time (the amount earned in the 12 months to that time). 2

[7] It is clear that the calculation of a person’s annual rate of earnings is to be determined at the date of termination. It is clear that the amount is not determined by calculating the amount the employee earned in the twelve months prior to termination, except as provided by the Fair Work Regulations 2009.

[8] Accordingly, Mr Jolley was not protected from unfair dismissal because at the date of his dismissal he earned more than the high income threshold. His application must be dismissed. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

M. Jolly on is own behalf.

M. Bulter for the Respondent.

Hearing details:

2017.

Melbourne:

3 March.

 1   [2012] FWAFB 6108

 2   See Kunbarllanjna Community Government Council v H. W. Fewings Print Q0675 where a Full Bench of the Australian Industrial Relations Commission came to a similar conclusion in respect of the relevant provisions of the Workplace Relations Act 1996.

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