Matthew Laurence v NGI Holdings Pty Ltd - [2023] FWC 2425

[2023] FWC 2425

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Matthew Laurence
v

NGI Holdings Pty Ltd

(U2023/4075)

COMMISSIONER SIMPSON

BRISBANE, 20 SEPTEMBER 2023

Application for an unfair dismissal remedy

On 12 May 2023, Mr Matthew Laurence (Mr Laurence /the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with NGI Holdings Pty Ltd (the Respondent).

The Respondent raised a jurisdictional objection that the Applicant earned more than the high income threshold.

I listed the matter for an initial directions hearing by telephone on 27 June 2023. The matter was listed for Hearing of the jurisdictional objection by Microsoft Teams Video on 7 August 2023.

Leave was granted for the Applicant to be represented by Mr William Isdale of Counsel instructed by Hickey Lawyers and the Respondent was represented by Mr Joseph D’Abaco of Counsel instructed by Mr Graeme Halperin from Haperin & Co.

The Applicant raised an objection to the admission of certain further material the Respondent sought to rely on which was filed prior to the hearing in addition to the material directed to be filed. I allowed a further statement of Mr Edward Aldridge to be filed which was responsive to the Applicant’s statement. The Applicant then filed a further supplementary statement in response. I also allowed further material to be submitted that was filed prior to the hearing in the form of airline tickets which was related to an issue about the amount of money paid for by the Respondent which had some relevance to an issue in dispute.

Background

The Respondent owns and operates nine McDonald’s restaurants in southern New South Wales and regional Victoria.

The Applicant commenced employment with the Respondent on 10 March 2008 and was appointed to the position of General Manager in 2014. In 2014, through his personal company Meak Investments Pty Ltd (Meak), the Applicant acquired a 1% interest in the Respondent’s business and Meak and the Respondent became business partners. By 2020, Meak owned a 5% interest in the Respondent’s business.

In June 2022, the Applicant moved to Queensland. He continued to work as the Respondent’s General Manager, travelling from Queensland to Wodonga on a weekly basis and working three days per week in Wodonga.

On 20 February 2023, the Respondent gave the Applicant notice of his dismissal. The Applicant’s employment ceased on 21 April 2023.

JURISDICTION

Submissions & Evidence

The Respondent relied on an initial witness statement of Mr Edward Aldridge[1] the sole Director of the Respondent of 7 July 2023, and a second statement of Mr Aldridge dated 1 August 2023.[2] The Applicant relied on his own initial statement of 20 July 2023,[3] and a further statement of 4 August 2023.[4] The Applicant also relied on the evidence of his wife, Ms Alice Laurence who provided a statement dated 21 July 2023.[5]

A bundle of airlines tickets was also admitted into evidence through Mr Aldridge[6] as was a table summarising the airline tickets,[7] extracts from the corporate credit card provided by the Respondent to the Applicant which Mr Aldridge said was used to purchase other flights[8], and a summary of flights paid for on the corporate credit card.[9]

Remuneration Package

The Respondent submitted that the Applicant received a remuneration package comprising various elements in the year preceding his dismissal, including partnership income of $196,164.99. Relevantly, the Respondent submitted that the Applicant’s annual rate of earnings as an employee was $206,592.34, comprising:

(a)Annual salary: $149,030.29
(b)Full personal use of a motor vehicle: $31,112.90
(c)Flight allowance: $20,000.00
(d)Car parking: $1,727.27
(e)Monthly personal allowance: $2,400.00
(f)Clothing allowance: $2,321.88

At the time of the Applicant’s dismissal, the high income threshold was $162,000.00. The Respondent contended that the Applicant’s annual earnings were well in excess of that amount. The Applicant was not covered by a modern award, and no enterprise agreement applied to the Applicant in relation to his employment. In those circumstances, the Respondent contends that the Commission does not have jurisdiction to consider the Applicant’s unfair dismissal application and must dismiss it.

The Applicant’s position is that his salary was no greater than $151,243.95 under the Act.

It is common ground that a modern award did not cover the Applicant and an enterprise agreement did not apply to the Applicant in relation to his employment with the Respondent. Accordingly, pursuant to s. 382(b)(iii) of the Act, for the Commission to have jurisdiction to determine this application, it must be satisfied that the sum of the Applicant’s annual rate of earnings, and such other amounts (if any) worked out in relation to the Applicant in accordance with the Regulations, is less than the “high income threshold”.

Partnership earnings of $196,164.99.

Whilst the partnership earnings were not disputed by the Applicant, they are not earnings from employment and on that basis should not be counted for the purposes of the high income threshold.

Annual salary of $149,030.29 including TOIL

The Respondent submitted a person’s annual rate of earnings must be ascertained at the time of the termination of the person’s employment. What must be ascertained is the annual rate of earnings at that time, not the annual earnings to that time (i.e the amount earned in the 12 months prior to that time). At the time of the Applicant’s dismissal, The Respondent submitted his annual salary was $144,043.95.

Additionally, the Respondent submitted that as part of the terms of his employment with the Respondent, the Applicant was paid an additional amount in respect of occasions when he worked on public holidays. At the time of his dismissal, he was paid $4,986.14 in respect of this entitlement.

The Respondent submitted that this additional amount formed part of the Applicant’s “wages” for the purposes of s.332(1)(a) of the Act and accordingly, part of the Applicant’s annual rate of earnings at the time of his dismissal.

The Applicant submitted the evidence of Mr Laurence is that he had no entitlement to payment for working on public holidays, and instead he was allocated Time in Lieu. His evidence is that he accrued this time to use at a later stage.

The Applicant submitted that even if a monetary amount for this Time in Lieu was paid out upon his termination, such an amount could not be considered “wages” (as the Respondent contends) in circumstances where it was never agreed that he would receive additional monetary amounts for this time. As observed in Terry Shields Pty Ltd v Chief Cmr of Pay-Roll Tax (NSW), “wages” has a “well accepted meaning” which refers to a “sum of money” and which is “agreed to be paid” for the employee’s services. The Applicant submitted that the Respondent has not provided any evidence that the Time in Lieu was agreed to be paid as a “sum of money”, such as could constitute “wages”.

The Applicant submitted that the payment of the Time in Lieu upon termination was a payment “the amount of which cannot be determined in advance” (because it was not “anticipated or agreed to in advance”), or arguably a “reimbursement” (for un-used Time in Lieu), such that it was expressly excluded from the definition of earnings in s.332(2)(a)-(b) of the Act.

Mr Aldridge’s evidence was time off in lieu if not taken was to be paid out if not used to take additional days off. Mr Laurence said there was no agreement for the payout of TOIL. Mr Laurence said his understanding was days in lieu were for working on public holidays and the practice was you would take that day on a quiet day. Mr Laurence said his understanding was for any salaried employees that outstanding days in lieu would on their termination have that time paid out.

Full personal use of motor vehicle of $31,112.90

The Respondent submitted that as part of the terms of his employment contract, the Applicant was provided with a fully maintained motor vehicle, for business and personal use.

The Respondent submitted in accordance with regulation 3.05(6), the Commission may estimate the money value of the benefit of the motor vehicle provided to the Applicant. That amount is to be included in the Applicant’s annual rate of earnings under s. 382(b)(iii).

The Respondent submitted in calculating the value of the motor vehicle component of an Applicant’s remuneration, the approach adopted in the Commission is as follows:

(a)Step 1 – determine the annual distance travelled by the vehicle in question;

(b)Step 2 – determine the percentage of the annual distance travelled which was for the Applicant’s private purposes;

(c)Step 3 - multiply the figures from step 1 and step 2. This provides the annual distance travelled for private purposes;
(d)Step 4 - estimate the cost per kilometre for a vehicle of the type used. This information can be obtained from the RACV, NRMA or like motoring organisations;
(e)Step 5 – multiply the annual distance travelled for private purposes by the estimated cost per kilometre. The result is the value of the motor vehicle component of the Applicant’s remuneration.

The Respondent submitted between 21 June 2022 (when he departed Wodonga for Queensland) and his dismissal on 21 April 2023, the Applicant used the motor vehicle provided to him by the Respondent exclusively for private purposes. The Respondent’s McDonalds restaurants are located in southern New South Wales and Victoria – not Queensland. The Respondent submitted that there was no possible work-related use of the vehicle while the Applicant drove it in Queensland.

The Respondent has calculated that the Applicant travelled 39,888.33 km in the vehicle, exclusively for private purposes, while he lived in Queensland. This calculation is based on the distance travelled by the vehicle, and the fuel it consumed while the Applicant drove it in Queensland.

The Respondent submitted in the absence of either the NRMA or the RACV having a published “per kilometre” rate for the make and model of the vehicle in question (a Volkswagen Toureg), the Respondent has adopted the per kilometre rate of 78 cents published by the Australian Tax Office. Based on the distance travelled by the vehicle of 39,888.33km for private purposes, the value of the motor vehicle was $31,112.90.10

The Applicant submitted it is not in dispute that the Applicant was provided with a motor vehicle, and that the value of the private use of the vehicle is to be included in the annual rate of earnings. The Applicant also does not take issue with the general method of calculating the value of the Applicant’s private use of the vehicle as summarised in the Respondent’s submissions.

However, the Applicant takes issue with the Respondent’s submission that a driving distance of 39,888.33km is to be attributed to the Applicant’s driving of the vehicle for private purposes.

The Applicant submitted the evidence of Mr Laurence is that the motor vehicle was provided by the Respondent for use by both him and his wife, Alice Laurence, who was also (and on Mr Laurence’s evidence, is still) employed by the Respondent.

The Applicant submitted according to Mr Laurence, the motor vehicle was “predominantly used by Alice”, and Alice “had majority use of and benefit of the Company Car over the past 12 months”.

The Applicant submitted accordingly, it is not possible to attribute all of the use of the vehicle to private usage by the Applicant. Instead, Mr Laurence estimates that his use of the motor vehicle for private benefit in the preceding 12 months was “10,000km”. As explained in the Applicant’s previous submissions, at an estimated cost of $0.72 per kilometre, that results in an amount of $7,200 attributable to the Applicant’s private use of the vehicle, to be included in determining the high income threshold.

The Applicant submitted that where an employee is provided with a motor vehicle, the value of the private use of the vehicle is included in the annual rate of earnings. At the time of the Applicant’s dismissal, the Respondent had provided the Applicant with a company vehicle. The Respondent had fully paid for the vehicle.

The Applicant submitted the use of a motor vehicle for business purposes is excluded from an employee’s annual rate of earnings. The Applicant is only required to include the proportion attributed to private usage.

The Applicant submitted no monetary value was agreed between the Applicant and the Respondent. It was submitted the Applicant has travelled approximately 10,000 kilometres at an estimated cost of $0.72 per kilometre (based on the Australian Taxation Office); the amount of $7,200 is included in the Applicant’s annual rate of earnings.

Ms Laurence’s use of the Vehicle

Ms Laurence’s evidence was that the Employer provided the VW Touareg to be shared between herself and Mr Laurence. Ms Laurence stated that she predominately used the Company Car as she was required to travel to each of the 9 McCafe sites she managed during her employment.

Where possible, Ms Laurence said she and Mr Laurence would travel in the Company Car together, but Mr Laurence would have to use his car when their shifts would overlap or travel to different sites. Ms Laurence stated that they moved to the Gold Coast in July 2022 and she remained employed at the Employer to support the McCafe business remotely with phone questions and emails. As of the date of her statement, she stated she has not submitted a resignation to the Employer, nor has she received any notice of termination. As she understood it, she was still an employee of the Employer, working in an advisory capacity. However, she has not been paid since approximately 16 August 2022.

Ms Laurence submitted she has been the main driver of the Company Car for the last 12 months. She further submitted that while still in Victoria, she and the Applicant made multiple trips to sites 160km from the most southern site. She recalled that they would often add 1000 km to the Company Car for trips conducted for work purposes with the locations they were required to travel to.

Mr Aldridge’s evidence was that the Vehicle was provided by the Respondent for the Applicant’s business and personal use as part of his employment remuneration package. It was not provided by the Respondent for Ms Laurence’s use, or to share with Ms Laurence, or as part of Ms Laurence’s employment remuneration package. If Ms Laurence used the Vehicle, it was under an arrangement agreed between the Applicant and Ms Laurence, without the Respondent being consulted about any such arrangement. It was put to Mr Laurence that Mr Aldridge had said that the VW Touareg was not provided for Ms Laurence’s use or to share with her or as part of her employment package. Mr Laurence said in a conversation he had with Mr Aldridge in approximately August 2020 at a café in Wodonga he put it to Mr Aldridge that they needed to upgrade their current VW Touareg which was a white 2016 model which Ms Laurence drove for work purposes which was a personal car. Mr Laurence said Mr Aldridge agreed to upgrade that car to the new VW Touareg which would be a black 2020 model owned by the Respondent for both the Mr and Ms Laurence to drive. Mr Laurence said at that time he was driving his BMW M3 for work purposes which was his personal car, and Mr Aldridge was aware he was driving his personal car for work.

Mr Aldridge’s evidence was that Ms Laurence was employed by the Respondent as the McCafe Business Manager. She ceased employment with the Respondent with effect on 19 June 2022, shortly before she and her family permanently moved to the Gold Coast. If she travelled to any of the Respondent’s restaurants after that date, she did so by her own choice and not as an employee of the Respondent.

Mr Aldridge’s evidence was that on 21 July 2023, Ms Laurence emailed the Respondent's bookkeeper, Angela Mitchell, requesting her employment separation certificate from the date she was terminated on the Respondent's payroll system, stating that Centrelink were "hassling" her for it.

Mr Aldridge’s evidence was that Ms Laurence did not remain employed by the Respondent after moving to the Gold Coast. After Ms Laurence left for the Gold Coast, her duties were performed for approximately a month by another employee, Verity Speziale, who was employed in the position of McCafe Supervisor. The Respondent then re-organised the management of its McCafes, with a staff member at each of the Respondent’s various restaurants assuming the additional responsibility of also supervising the McCafe at their particular restaurant.

Mr Aldridge stated that Ms Laurence ceased to be an employee of the Respondent with effect on 19 June 2022. Both the Applicant and Ms Laurence told he and his wife that Ms Laurence was leaving the Respondent and that she planned to pursue a house staging business on the Gold Coast. Consistent with the Respondent’s usual practice when senior staff resign, they held a farewell dinner for Ms Laurence. On 16 June 2022, commencing at 6 pm, approximately 18 staff of the Respondent, including he and his wife, attended a farewell dinner for Ms Laurence at Din Dins restaurant in Albury where they wished her all the best for the future. The Respondent’s Operations Manager, Tim Longman, delivered a speech thanking Ms Laurence for her service to the Respondent and then publicly gave her an engraved watch in recognition of her years of service with the Respondent. Mr Aldridge said he and his wife gave her a glass carafe and tumblers on account of her leaving them. A copy of the invitation to attend Ms Laurence’s Farewell Dinner was attached to Mr Aldridge’s second statement at EA12. It states: “It’s time to say a fond farewell to our fearless McCafe Business Manager Alice”.

Mr Aldridge’s evidence was that Ms Laurence has not worked in any capacity for the Respondent since 19 June 2022 and has been paid out all of her accrued employment entitlements. Ms Laurence’s accrued “payment in lieu” for 15 days of additional work calculated at her normal pay rate, accrued annual leave and accrued long service leave were paid out in instalments by the Respondent between 26 June 2022 and 16 August 2022. Mr Aldridge’s evidence was that he was told by the Respondent’s bookkeeper, Angela Mitchell, and believed that these amounts were paid in instalments as this is what the Applicant asked her to do, rather than being paid out as soon as Ms Laurence’s employment ceased in accordance with the Respondent’s usual practice.

Mr Aldridge’s evidence was that Ms Laurence is not still currently employed by the Respondent. She ceased employment with the Respondent with effect on 19 June 2022, as stated above. No instruction was ever given to Ms Laurence to stop using the Vehicle, as the Respondent did not know she was using it and did not supervise the use of the Vehicle before it was collected by Prixcar on 26 April 2023.

Mr Aldridge agreed that Ms Laurence travelled to McCafe’s whilst employed by the Respondent and did so by car. Mr Aldridge accepted that Ms Laurence had a fuel card. Mr Aldridge was clear that the Volkswagen Tourag was provided to Mr Laurence and not to both Mr and Ms Laurence.

Mr Aldridge rejected the proposition that Ms Laurence continued to be employed by the Respondent after she moved to the Gold Coast. Mr Aldridge maintained any payments made to Ms Laurence after she moved to the Gold Coast were paying out the remainder of her entitlements.

Mr Aldridge said there was verbal resignation provided by Mr and Ms Laurence. Mr Aldridge said that the conversation was that Ms Laurence said that she was leaving with her family to go to Queensland and she was planning to start her own house staging business for the sale of houses in Queensland which she had been doing in Victoria, and there was no indication that she was staying or having consultation with cafes. Mr Aldridge said no other payment was made to Ms Laurence from that point except in relation to her entitlements to that point.

Mr Aldridge said Mr Laurence said much the same, that Ms Laurence wanted to build her business in Queensland and she wanted the Queensland lifestyle. Mr Laurence agreed he was present at the farewell dinner for his wife on 16 June 2022. It was put to Mr Laurence that a speech was given where she was thanked for her service to the Respondent, and she was given a watch and glass tumblers and that they were farewell gifts given to Ms Laurence on occasion of her leaving her employment and moving to Queensland. Mr Laurence did not agree. He accepted she was ceasing as a full-time employee.

It was put to Mr Laurence that another employee moved into the position of supervising the McCafe’s after his wife left, and a month or two later this function was devolved to each business and the position of McCafe Business Manager ceased to exist. Mr Laurence maintained that Ms Laurence continued in a consultant role, however he agreed no consulting fees were charged.

Ms Laurence did not accept that she resigned from employment with the Respondent on 19 June 2022. Ms Laurence said she has never handed in a resignation letter and had not received a termination letter. Ms Laurence claimed she has worked for the Respondent since moving to the Gold Coast by phone calls and answering questions by emails and messages. Ms Laurence said this happened a couple of times a week and slowly wasn’t as much. Ms Laurence believed the last time this happened was at the end of last year. She also said she has not verbally resigned. Ms Laurence said she understood a farewell dinner was because she was moving to the Gold Coast. Ms Laurence was asked if she still had an email account with the Respondent and she said, no it had been terminated and she had access to the account after she moved to the Gold Coast but could not provide a specific estimation of when this occurred, however she said she believed it was this year.

Ms Laurence was asked if she has received any payments from the Respondent after moving to the Gold Coast and she said no.

It was put to Mr Laurence that as part of his remuneration package the Respondent provided him with a fully maintained company vehicle. Mr Laurence did not agree. Mr Laurence claimed the VW Touareg was provide to both his wife and himself, and not exclusively to him. Mr Laurence was referred to the schedule or motor vehicle fringe benefits for the VW Touareg attached to the evidence of Mr Aldridge. Mr Laurence accepted he signed the document and that he is listed in the document as the employee who is identified in the document. Mr Laurence agreed that the document showed that as at 31 March 2022 the odometer reading was 41,002km, and agreed that by signing the document he declared that the information in the document was correct.

It was put to Mr Laurence that the information in the document includes the fact that the VW Touareg was provided to him for his business and personal use. Mr Laurence did not agree with that proposition. Mr Laurence said he was told by Ms Alicia Aldridge that the majority driver should sign the document, and as he had been the majority driver in the previous 12 months, he signed. He accepted there was no reference to his wife in the document. He accepted that by signing the document he was declaring it was correct. It was put to Mr Laurence that he did not discuss with Ms Aldridge at the time he signed the document the use of the vehicle by his wife, and he said he did not recall.

Mr Laurence accepted he was entitled to use the vehicle for full personal use. The Applicant was referred to the vehicle condition report which is dated 26 April 2023. The Applicant accepted that he was listed as the sender of the vehicle. He said he didn’t recall signing the document but said he gave the keys over, and it may have been a signature on an iPad. He said Ms Aldridge prepared the document and she would have placed his name in the document. His evidence in re-examination was that he did not know whose signature was on the document.

Mr Laurence accepted he drove the vehicle in Victoria for work purposes from 2020 until he left for Queensland in June 2022. He agreed he shared the driving with Ms Laurence when the vehicle was driven to Queensland. He agreed the vehicle remained in Queensland for the entire time from the move until the end of his employment. It was put to Mr Laurence that for the entire time the vehicle was in Queensland it was used for personal use. He said he used it to drive to the airport to travel to Victoria. Mr Laurence accepted that travel to and from work is part of the ordinary expense incurred by an employee of being employed which they incurred themselves. It was put to Mr Laurence that the vehicle when in Queensland was used entirely for personal use. Mr Laurence said the internet at his home could be unstable so he would travel to cafes with more stable internet connections.

Mr Laurence was asked what Ms Laurence was paid when she worked for the Respondent. He said he did not remember. It was put to Mr Laurence that Ms Laurence’s gross weekly wage was $1,254 and he agreed with that figure. Ms Laurence also agreed during her oral evidence that this figure was correct. Ms Laurence also agreed she was provided with a motor card and through this the Respondent paid for the cost of fuel. Ms Laurence was asked if any other items of remuneration were provided to her by the Respondent, and she said she was able to use the car for work. She agreed that was as a result of Mr Laurence telling her she was entitled to do that.

Mr Laurence accepted that there was no written agreement for his wife to have the use of car as part of her remuneration package. Mr Laurence said the agreement that she could have use of the car was from him. He agreed it was something he permitted her to do. Mr Laurence maintained it was discussed with Mr Aldridge. It was put to Mr Laurence that the Black VW Touareg was to replace his existing company vehicle at the time and he rejected that. He said he had no company vehicle prior to the Black VW Touareg, he had his own BMW which was personally owned. Mr Laurence said his wife’s White 2016 VW Touareg was traded in at the dealership when the Black 2020 VW Touareg was purchased.

It was put to Mr Laurence that his evidence that the vehicle was provided for both his and his wife’s use was a fiction which he has come up with to try to reduce the value of his total remuneration. Mr Laurence rejected that. Mr Laurence maintained the discussion with Mr Aldridge in August 2020 was about replacing his wife’s car. Mr Laurence said it was agreed Mr Aldridge would purchase the car. Mr Laurence was asked in re-examination if the only reason his wife was permitted to use the car was because he agreed to it and he said that was correct. Mr Laurence was also asked in re-examination if during the conversation with Mr Aldridge (in August 2020) whether there was any discussion of his wife using the car, and he said he did not recall the conversation being a specific conversation about Ms Laurence’s use of the car, however he then said he provided a purpose for the car as being for Ms Laurence to drive. Mr Laurence said when he was in Queensland predominantly his wife would use the car. He said he would drive to the post office using the car for work purposes.

Mr Laurence was asked about his evidence where he said if his shift overlapped with his wife’s shift (while they both worked for the Respondent in Victoria) that one of the personal cars was used to drive for work without seeking reimbursement. He accepted the reimbursement was not sought. He agreed that both he and his wife had motor pass cards and the Respondent paid for the fuel in the personal car as well. He said he could not remember if the motor pass card was used for repairs and other items for the personal car. He accepted that the motor pass card continued to be used after the move to Queensland. Mr Laurence accepted that the Respondent was paying for fuel in both the company car and the personal car, and this continued to be the case after the move to Queensland.

It was put to Mr Laurence that this was something that was never agreed or condoned by Mr Aldridge. Mr Laurence said it was never condoned. He said he recalled a conversation when he received his first motor car card, and he said as a joke it was said if you travel around Australia you should put some fuel in.

Mr Laurence was referred to his evidence where he said he requested from the Respondent to work remotely. It was put to Mr Laurence he did not put a request to Mr Aldridge but an ultimatum. Mr Laurence responded that it was an offer. Mr Laurence accepted that he told Mr Aldridge that he and his family were moving to Queensland, and it was non-negotiable. Mr Laurence appeared to accept that had Mr Aldridge not agreed with him continuing to be employed from Queensland he would have resigned. He agreed he told Mr Aldridge he was prepared to work on a fly in fly out basis, he did not agree that it was on a temporary basis. Mr Laurence agreed there were two meetings. He said he did not recall whether Mr Aldridge agreed at the first meeting. It was put to Mr Laurence that Mr Aldridge agreed at the second meeting, and Mr Laurence said he did not recall the meeting, and he didn’t believe it happened. It was put to him that he did not take issue with it in his 20 June 2023 witness statement that Mr Aldridge said there were two meetings in his first statement. Mr Laurence agreed he did not say anything about it in his first statement.

Mr Laurence agreed that he used his personal vehicle for work purposes in Queensland. It was put to him that he could have used the black VW Touareg but he didn’t because he chose to give it to his wife to use for personal use. Mr Laurence said his wife was continuing to use the car in Queensland as she had in Victoria. Mr Laurence maintained that Ms Laurence was still employed by the Respondent in Queensland and she reported to him. It was put to Mr Laurence that the last payment for wages she received from the Respondent was in June 2022. Mr Laurence rejected that. Mr Laurence agreed that the only other payment she received was for her accrued annual leave and long service leave entitlements. He accepted that, however did not accept that she had ceased employment. Mr Laurence said the annual leave and long service was taken in consecutive weeks, and agreed this was at both Ms Laurence’s and his request. He agreed the last payment was made on 14 August 2022, and has not received any other salary or wages since that time, and has not sought any salary or wages since that time.

Ms Laurence said her understanding regarding the 2020 VW Touareg was that it was to replace her family car, and she was to use it to drive to work, Mr Laurence was to use it for work, and it was to be used for personal use. Ms Laurence said she used the vehicle to drive to McDonalds stores. Ms Laurence agreed she used the vehicle for personal use after moving to the Gold Coast. Ms Laurence said she used the vehicle more often than Mr Laurence since moving to Queensland.

Ms Laurence agreed that for two days of the week when her husband worked in Queensland he worked from home, and that there was a study space in their home. Ms Laurence agreed that Mr Laurence had access to the internet in this study space and whenever he needed to access the internet for emails and to have meetings he would use the study, including for Teams meetings.

Ms Laurence agreed she is currently employed on a casual basis and that she has been for the last eight months and that she commenced this casual employment at the end of 2022. Ms Laurence agreed she also has a house staging business and that she told Mr and Ms Aldridge that when she left to move to Queensland, she would be working on her house staging business. Ms Laurence agreed that when she was employed in Victoria as a McCafe Business Manager, her primary responsibility was to supervise the activities of the McCafes at the Respondent’s nine business sites. Ms Laurence agreed she frequently visited the sites, and was involved in the recruitment of staff, and was part of the process for termination of employees.

Ms Laurence agreed that on the drive from Victoria to Queensland in June 2022 Mr Laurence did most of the driving. It was put to Ms Laurence that after she relocated to Queensland she was no longer supervising the various McCafé’s, and she said she had stepped down to casual. Ms Laurence said no one took over her role. It was put to Ms Laurence that for the first month or two another employee was responsible for this and she agreed this other employee was going to do some work in the McCafé’s. Ms Laurence accepted she did not visit the McCafé’s anymore after she moved to Queensland for work purposes, and she was no longer involved in employment or termination of employment in the McCafé’s.

Ms Laurence accepted she has not received any payslips since moving to Queensland however she said she has received annual leave and long service leave pay. She accepted these were her accrued entitlements. It was put to Ms Laurence that she has not provided any services as an employee to the Respondent since moving to Queensland that would lead to her to expect to be paid a wage. Ms Laurence disagreed, but accepted that she had not sought to be paid by the Respondent. Ms Laurence agreed she asked for a separation certificate in an email to Angela Mitchell the bookkeeper, asking for Ms Mitchell to send her, her separation certificate from the date she had been terminated in the system. Ms Laurence said Mr Laurence had asked her to email Ms Mitchell to ask for the separation certificate because as she needed it for Centrelink. Ms Laurence agreed that 16 August 2022 sounded correct as being the date for the last time she received payment from the Respondent, and that was for accrued long service leave entitlements. Ms Laurence agreed she received a separation certificate recently from the Respondent saying her employment ceased on 19 June 2022. Ms Laurence accepted she had not communicated with the Respondent saying that was incorrect, or that it was incorrect in saying she ceased employment voluntarily because she was moving interstate.

Ms Laurence accepted she was given an engraved watch at a dinner and also remembered receiving gifts from Mr and Ms Aldridge.

Ms Laurence accepted she used the VW Touareg in Queensland and that she did not use it for work purposes. Ms Laurence accepted she had never discussed the use of the vehicle with Mr and Ms Aldridge and the use of the vehicle was something she discussed with her husband. Ms Laurence said she did not remember signing any document relating to fringe benefits tax in relation to the vehicle. Ms Laurence agreed she did not have any discussions with Mr Aldridge in August 2020 at the time of the purchase of the 2020 VW Touareg and she agreed her understanding about the arrangement was based on what her husband told her.

Flight allowance of $20,000.00

The Respondent submitted as part of the Applicant moving to Queensland, the Respondent agreed to pay him an annual flight allowance of $20,000.00, to cover the cost of the Applicant flying from his home in Queensland to his workplace in Wodonga (and return) each week. This allowance was not for the purposes of the Respondent’s business – but rather, to enable the Applicant to attend the workplace and to then return home from the workplace.

In Chieng v Rio Tinto Aluminium Limited,[10] the Commission was required to determine whether a Remote Area Travel Allowance (RATA) of $22,720.00 per annum paid to an employee constituted earnings for the purposes of s. 332(1) of the Act. The RATA was paid to the employee by the employer to enable her to travel to and from her workplace, in Gove. The Commission held that the RATA was to be included in calculating the employee’s earnings for the purposes of s. 332 of the Act.

The Respondent submitted the flight allowance of $20,000.00 which the Respondent paid to the Applicant is in substance the same as the RATA considered by the Commission in Chieng, and it should be included in the Applicant’s annual rate of earnings for the purposes of s. 332 of the Act.

The Applicant disagreed with the Respondent’s submission that a “flight allowance” of $20,000 is to be included as part of the Applicant’s annual rate of earnings. The evidence of Mr Laurence is that there was never “any communication regarding $20,000 or a number to that effect”. Instead, Mr Laurence only provided an estimated cost of $500-600 per flight (to travel from the Gold Coast to Albury/Wodonga for work purposes), to which Mr Aldridge (on behalf of the Respondent) agreed.

The Applicant submitted there is no evidence that it was agreed precisely how many flights there would be, or that there was any agreement on the overall amount of the benefit. For that reason, there were “payments the amount of which cannot be determined in advance”, which are expressly excluded from the definition of earnings by s.332(2)(a). Further, the Respondent appears to have only agreed to an arrangement which it reserved the right to modify or discontinue. According to Mr Aldridge, the flight arrangements (including payments) were to be tried out on a “temporary basis” – indicating they could be discontinued at any time. As the Full Bench observed in relation to the s.332(2)(a) exclusion in Jenny Craig Weight Loss Centres Pty Ltd v I Margolina,[11] by reference to some of the examples included in a note to that exclusion (underlining added):

“It seems clear enough that the legislature intended to exclude bonus payments which are contingent, either because they depend on performance in some way or because management reserves the right to modify or discontinue them.”

The Applicant submitted there was no ‘allowance’ paid to Mr Laurence regardless of whether he travelled for work or not. Instead, he says he would “submit to accounts the cost of the flights and receive a reimbursement for this amount”.

The Applicant submitted as observed by Commissioner Williams in Ablett v Gemco Rail Pty Ltd, “[s]ection 332(2)(b) of the Act expressly excludes reimbursements to an employee from the calculation of an employee’s earnings”.[12] The Applicant submitted the amounts here are properly characterised as reimbursements, and for that additional reason, the amounts are not to be attributed to the Applicant as earnings.

The Applicant submitted the Respondent’s submissions refer to the case of Chieng v Rio Tinto Aluminium Limited, where consideration was given to the payment of a RATA. However, in that case the Applicant was able to receive the entitlement to the RATA paid out and treated as wages. Accordingly, as the Respondent submitted in that case, the RATA “could not be considered a reimbursement or an amount which cannot be determined in advance”, which was accepted by the Commissioner. The Applicant submitted that was not the case for Mr Laurence, who received only reimbursements for the costs of his travel for work that were actually incurred by him.

Furthermore, it was submitted by the Applicant that the amounts reimbursed to Mr Laurence for flights were business related costs, and not payment for his work or services, and so do not constitute ‘earnings’ under s.332 of the Act. As summarised by Deputy President Binet in James Pasznicki v Expro Group Australia Pty Ltd (underlining added):[13]

“In Davidson v Adecco Australia Pty Ltd T/A Adecco [2012] FWA 8393 (Davidson Case), Commissioner Booth found in the circumstances of that case that the travel allowance paid to the employee was not wages because the allowance was paid in contemplation of offsetting the employee’s expenses in providing, running and maintaining his own vehicle for the purposes of performing his duties. According to Commissioner Booth, the allowance recompensed the employee for business related costs and therefore could not be categorised as a payment for his work and services.”

The Applicant submitted as discussed by the Full Bench in Sam Technology Engineers Pty Ltd v Bernaudou (Bernaudou), understood in light of the purpose of s 382(b)(iii):[14]

“In this context, ‘earnings’ are what an employee receives for the work done by the employee in the course of their employment, rather than an amount paid to an employee to meet an expense incurred by the employee in undertaking such work.”

The Applicant submitted both of those observations are equally applicable to Mr Laurence’s reimbursement for flights undertaken for work-related travel. It was submitted that to the extent the Commission retains any discretion to include the amounts pursuant to regulation 3.05(6) of the Fair WorkRegulations, it should exercise its discretion not to do so, given their character as reimbursements for business-related expenses of work travel.

The Applicant submitted accordingly, the ‘flight allowance’ contended for by the Respondent should not be included in assessing whether the Applicant exceeded the high income threshold.

Mr Aldridge was asked about the Respondent paying for the cost of flights after receiving invoices for flights from the Applicant. Mr Aldridge accepted there was a reimbursement by the Respondent for flights. Mr Aldridge did not agree with the proposition that there was no agreement that the cost of flights would be limited to $20,000. He said the cost was in excess of $20,000 but that it was too late to raise any objections. It was put to Mr Aldridge that the Applicant was not entitled to be paid out the balance of the $20,000 if the costs of flights had been less than $20,000. Mr Aldridge replied that had the costs of the flights been less than $20,000 he would have paid out up to the $20,000 of the bonus.

Mr Aldridge was asked whether he accepted that the Respondent could have decided to no longer meet the costs of the flights because it was a trial only, and that he was doing the Applicant a favour but he could have changed his mind. Mr Aldridge said he paid Mr Laurence a $20,000 bonus, and the payment for the cost of the flights was in lieu of the $20,000 bonus.

Mr Laurence said in his oral evidence that his understanding of the discussion with Mr Aldridge concerning the working arrangements and flights was that he investigated the cost of flights between the Gold Coast and Albury and they were approximately $500 to $600 return, and that was the only conversation they had about any monetary value of the flights. Mr Laurence did not recall any agreement about an overall figure. Mr Laurence said in practice he would purchase the flight on his personal credit card and submit the invoices or flight tickets to the bookkeeper and the money would be reimbursed into his personal bank account.

Mr Laurence accepted that he received a $20,000 management bonus in 2021, and 2020 however he said he could not recall if he did in 2019. He agreed he did not get a $20,000 management bonus in 2022. It was put to Mr Laurence that in the context of having received management bonuses of $20,000 in 2020 and 2021 that Mr Aldridge said he would pay for the flights up to $20,000. It was put to Mr Laurence he would have thanked Mr Aldridge. Mr Laurence said he did not recall saying it. He said the only conversation he recalled was about the flights being $500 to $600 per week.

Mr Laurence accepted he was paid by one of two ways, the first being where he directly paid for the flights and he submitted evidence and the Respondent paid the amount into his bank account. It was put to Mr Laurence that the total value of this was $21,641.60 based on documents provided by the Respondent. Mr Laurence said he hadn’t checked the figures so could not answer whether this was correct.

Mr Laurence agreed the second method was by paying through the use of a corporate credit card issued to Mr Laurence by the Respondent and he used it for flights between the Gold Coast and Albury. Mr Laurence was referred to extracts from his corporate credit card account and he accepted that the total cost of the flights was $5,780.

He agreed the total cost of flights to the Respondent was $27,426.92 subject to the calculations being correct. In re-examination Mr Laurence said the $27,426 figure is closer to his recollection of the discussion being about $500 to $600 per week.

Car parking permit of $1,727.27

The Respondent submitted they paid for an annual parking permit at the Albury airport for the Applicant’s private vehicle. The Respondent submitted that it is clearly an amount applied on the Applicant’s behalf, for the purposes of s. 332(1)(b) of the Act, and is exclusively for his benefit. The Respondent submitted it ought to be included as part of the Applicant’s earnings.

The Applicant submitted he has only received payment of car parking fees to meet an expense that was incurred for the purposes of commuting to work. As Mr Laurence says in his statement, this expense was covered to ensure that he could “complete the requirements of my role and, as such, was for the sole benefit of the Employer”.

The Applicant submitted the Respondent has not provided any compelling reason to accept a contrary view.

The Applicant submitted instead, the Respondent’s submissions concede that the parking fees were paid so that the Applicant could keep his car at the Albury airport, which car “[t]he Applicant then drove while he was working in Wodonga”.

The Applicant submitted applying the principle outlined in Bernaudou (extracted above), the car parking payment was purely to meet an expense incurred by the Applicant in doing his work, and the amount should not be considered as part of the Applicant’s earnings.

Mr Aldridge said the Respondent did not agree to pay for the Applicant’s parking permit, but he was aware that the Respondent did pay for it. Mr Aldridge agreed the Respondent could have stopped paying for the permit on the basis the arrangement was a trial arrangement.

Mr Aldridge was referred to his answer to a question where he said he did not agree to the payment of the parking permit. Mr Aldridge was asked when he learned of the payment and Mr Aldridge replied after Mr Laurence had finished working for the Respondent.

Mr Laurence accepted that the Respondent paid for the cost of a car parking permit for him to park his personal car at the Albury Airport, which he said was an Audi. He agreed he used this Audi for work purposes when he was in Victoria and he used his Motor card for fuel, but did not recall using it for repairs. It was put to Mr Laurence he did not seek the permission from Mr Aldridge for payment of the car parking permit. Mr Laurence said he submitted the costs for reimbursement to the bookkeeper, and Mr and Ms Aldridge approved the reimbursement. He said he did not specifically ask for permission but he followed the process he always followed of submitting invoices for approval.

Personal allowance of $2,400.00

The Respondent submitted that as part of the terms of his employment, the Respondent provided the Applicant with a monthly allowance of $200.00, which he could spend on whatever he pleased.

The Respondent submitted this is clearly an amount applied on the Applicant’s behalf, for the purposes of s. 332(1)(b) of the Act. It was exclusively for his benefit and ought to be included as part of the Applicant’s earnings.

The Applicant submitted the Respondent alleges that the Applicant had available an allowance of $200 a month. However, the Respondent, who bears the onus of establishing the jurisdictional objection, has not provided any detail as to:

a.How much of the allowance it alleges was actually spent by the Applicant during the relevant time period; or
b. How much of the amounts actually spent related to non-work related costs (as opposed to payment of work-related expenses) that could satisfy the definition of ‘earnings’.

The Applicant submits that, contrary to the Respondent’s submission, it cannot be assumed that simply because an amount may have been available to spend, that it actually was all spent, let alone spent for non-work purposes that could constitute earnings per s.332 of the Act.

The Applicant submitted Mr Laurence’s evidence is that he was merely “permitted to spend $200 per month on personal expenses” (and not that he actually did so); that he used the card for “mixed purposes” which included “work-related expenses such as coffee or dinners for work- related meetings or with team members”; that he “did not keep records in respect of what proportion of the expenses were personal and which were work-related”; and that he was “never refunded the unspent balance of any of the allowance”.

The Applicant submitted in the absence of the Respondent alleging any specific figures / providing an account in the aforementioned regard, the Applicant submits that no sum should be attributed for this alleged component as earnings of the Applicant.

It was put to Mr Aldridge that nothing was provided by the Respondent of evidence of the calculation of what was spent by Mr Laurence for personal purposes. Mr Aldridge said he was not sure.

It was put to Mr Aldridge that despite his supplementary statement saying there never was an unspent balance on Mr Laurence’s monthly allowance, the documents to support that claims are not provided. Mr Aldridge said it could be but he was not sure.

Mr Laurence accepted that each month he was provided a personal allowance of $200 and also accepted he was entitled to spend it on whatever he pleased. He accepted he did spend amounts on his corporate credit card. It was put to Mr Laurence he never sought the refund of any unspent amount. He said he was not aware he could. It was put to Mr Laurence that the reason he did not seek reimbursement for unspent amounts was because he spent the entire amount. He did not agree with that.

Clothing allowance of $2,321.88

The Respondent submitted the Applicant was not required to wear a uniform at work and did not do so. He wore ordinary clothes of his choice. Regardless, the Respondent paid him an annual allowance for clothing, in the amount of $2,321.88.

The Respondent submitted this was an amount applied on the Applicant’s behalf, for the purposes of s.332(1)(b) of the Act. It was exclusively for his own benefit and unrelated to the requirements of his employment. Accordingly, it ought to be included as part of the Applicant’s earnings.

The Applicant submitted contrary to the Respondent’s submission, payment for clothing was not “exclusively for his own [the Applicant’s] benefit and unrelated to the requirements of his employment”.

The Applicant submitted instead, the evidence of Mr Laurence is that “Mr Aldridge expected his senior management to wear business attire to meet the Employer's standards” and accordingly it is “patently false to say that there was no workplace dress code”. The clothing purchased by the Applicant was “only worn for the workplace and to meet Mr Alridge’s expectations”.

The Applicant submitted the cost of such clothing was a reimbursement as expressly excluded from the concept of earning by s.332(2)(b) of the Act, and not an amount received for work done (per Bernaudou, extracted above). As Mr Laurence’s statement says, “I would submit to the accounts team the cost of any business attire purchased for work purposes and receive a reimbursement for this amount, or I would use the corporate credit card”.

The Applicant submitted contrary to the Respondent’s submissions, Mr Laurence’s evidence is that there “was no set ‘allowance’ from the Employer’ merely reimbursement for expenditure incurred in purchasing the required clothing”. Further, there was no entitlement to receive any amounts directly – as he says, “I was never refunded the unspent balance of any allowance”.

It was put to Mr Aldridge that he had an expectation that employees would dress professionally for work and he agreed. It was put to him that the Respondent had agreed to meet the cost of clothing for that purpose and he said no. It was put to Mr Aldridge that he was aware that Mr Laurence had submitted costs for professional clothing and he said afterward he was. He said he did not raise an objection because he did not know at the time. He said Mr Laurence had already left his employment when Mr Aldridge found out.

Mr Laurence said part of McDonalds policy was that uniforms were paid for and that arrangement continued into his more senior leaderships roles as an operations manager and then into the role of General Manager. He said the previous Operations Manager in his position was told to dry clean his clothes and Mr Aldridge paid for that, and another operations manager was told to wear more professional attire which the Respondent paid for. Mr Laurence said clothing was paid for with the corporate credit card or reimbursed.

Mr Laurence agreed that in his role as a general manager he did not wear a uniform, however he said he wore specific business attire. He agreed these items of clothing could be worn out of work and he did on occasion. He agreed he was paid an amount of $2,321.88.

CONSIDERATION

The High Income Threshold at the time of termination was $162,000. As a General Manager, Mr Laurence was not employed under a Modern Award or enterprise agreement. It is apparent from the evidence the employment contract was a verbal agreement. There is no dispute that Mr Laurence’s annual salary of itself was $144,043.95 as at the time of his termination. The difference between this amount and the high income threshold is $17,956.05.

A sum of $4,986.14 was paid out on termination for working on public holidays and where days were not taken as time in lieu. The Respondent submitted this amount should be counted as earnings. I have determined that the $4,986.14 amount is not an amount that can be determined in advance and on that basis, should not be included.

The Respondent estimated that use of the VW Touareg was to value of $31,112.90. Mr Laurence did not dispute the kilometres travelled in the vehicle in respect of the period 21 June 2022 when it left Victoria and 21 April 2023 when it was collected. The Respondent relies on a per kilometre rate of 78 cents in accordance with the ATO Guidelines. It was submitted for Mr Laurence that not a lot turns on the ATO kilometre rate however it had submitted that the 72 cents rate from the previous year pertained to at least some of the period. The 78 cent rate applied from 1 July 2022 and therefore the vehicle was only in Queensland for the last week of the previous financial year when the 72 cent rate applied. There is also no dispute concerning the value of the vehicle at $31,000.

The dispute concerns whether the value of the vehicle is attributable to Mr Laurence or to be shared between Mr and Ms Laurence. It is submitted for Mr Laurence that even if Ms Laurence did not remain an employee of the Respondent once she had moved to Queensland, personal use of the vehicle by Ms Laurence was not personal use by Mr Laurence and therefore cannot be attributed to Mr Laurence as personal use by him, and the evidence is that the majority of the use of the vehicle was by Ms Laurence. I accept on the basis of the evidence that the performance of Ms Laurence’s full-time employment with the Respondent did come to end when she moved to Queensland, and she did not continue as an employee of the Respondent as a casual after she had moved to Queensland. It appears an agreement was made that she would continue to receive accrued entitlements from her former role paid out on a weekly basis until they were fully exhausted in August 2022. The evidence of Mr Aldridge is that the vehicle was provided to Mr Laurence alone as part of his remuneration package. This is supported by the FBT report as it lists Mr Laurence as the employee for whom the FBT report was prepared, and Mr Laurence signed the document. Ms Laurence’s evidence was she did not ever recall having to sign such a document. It is also supported by the Vehicle Condition Report which the evidence indicates was provided by Mr Laurence.

I accept on the evidence Mr Laurence left the car in Queensland for his wife to use and that is a cost that the Respondent bore as part of Mr Laurence’s remuneration package. It is apparent that Ms Laurence was not using the vehicle for any purpose in connection with a role performed for the Respondent and she had ceased employment.

Having considered the evidence, I prefer the evidence of Mr Aldridge over that of Mr Laurence concerning the agreement made between Mr Aldridge and Mr Laurence concerning the vehicle, that being that it was provided for the benefit of Mr Laurence and was not intended to be provided on the basis that it was for the benefit of both Mr and Ms Laurence as part of their separate employment arrangements. Mr Aldridge was clear in his evidence that the vehicle was provided to the Applicant alone. Mr Laurence’s claim that there was an agreement that it intended that the vehicle was being provided by the Respondent for the benefit of both himself and his wife seems less likely to be true than Mr Aldridge’s account of the understanding. I am persuaded to prefer the evidence of Mr Aldridge because on several occasions in the course of his evidence concerning this issue, and other key areas of disagreement, Mr Laurence could not recall whether particular discussions did or did not occur, whereas Mr Aldridge was more certain during his evidence. There is no compelling evidence that a vehicle was intended to be part of Ms Laurence’s remuneration package. Ms Laurence was clear in her evidence that her belief that the car was also for her benefit based on what her husband had told her, and not based on anything said to her by anyone else from the Respondent.

Ms Laurence’s evidence was that Mr Laurence was able to work from home in the study and when working in Queensland. It appears from the evidence when the vehicle provided to Mr Laurence was left in Queensland and being used for private use by his wife, when he was in Victoria he used his personal vehicle, for which the Respondent also paid for the fuel required, and also for parking at the airport.

I also prefer the evidence of Mr Aldridge that there was an agreement between Mr Aldridge and Mr Laurence that rather than Mr Laurence receiving a $20,000 management bonus, the Respondent would pay for flights to Victoria from the Gold Coast to the sum of the same amount. Mr Laurence accepted he received a management bonus of $20,000 in 2020 and 2021 and did not receive a $20,000 management bonus in 2022. It seems to be more likely, and I accept, that Mr Aldridge and Mr Laurence made an agreement that the $20,000 bonus payment previously paid in 2021 and 2020 would be paid to meet the cost of Mr Laurence travelling to and from work instead of as a bonus after the move to Queensland.

The total costs of the flights which were not challenged, based on the documents in evidence was $21,646.80 for flights directly paid for by Mr Laurence for which he sought reimbursement, and $5,780.12 for flights he charged on his corporate credit card, equalling a total of $27,426.92. I accept Mr Aldridge’s evidence that the discrepancy between the $20,000 figure agreed and the additional amounts paid for flights beyond that amount can be explained by a failure on the part of the Respondent to identify that the $20,000 figure had been exceeded and it continued to pay the amounts either by receipt of the evidence from Mr Laurence, or by the corporate credit card.

The Respondent submitted that regulation 3.05(6)(c) is a discretionary consideration having regard to the circumstances whether the Commission (i) should consider the benefit for the purposes of assessing whether the high-income threshold applies, and (ii) a reasonable money value of the benefit has not been agreed, and (iii) the Commission can estimate a real or notional money value of the benefit.

The Respondent relied on the Full Bench decision in Zappia v Universal Music Australia Pty Ltd t/a Universal Music Australia [2012] FWAFB 6108 to support the proposition that the costs of an employee getting to and from work are ordinarily expenses incurred by an employee in their personal capacity, and are not work related travel, and that where an employer meets the costs it should come within the meaning of the Fair Work Regulations 2009 regulation 3.05(6). The Respondent submitted that in accordance with regulation 3.05(6)(a) Mr Laurence was entitled to receive, or has received a benefit in accordance with the verbal agreement between Mr Laurence and the Respondent, and it was not a benefit for the payment of money or a non-monetary benefit within the meaning of subsection 332(3). The Full Bench in Zappia noted in paragraph 13 that simply because an expense is incurred, and then reimbursed, does not necessarily make it a reimbursement for the purposes of section 332(2)(b). The Full Bench observed that in that case the payment of a toll by the employer was a payment for the purposes of regulation 3.05(6), and in the event it was not, the term reimbursement in section 332(2)(b) does not contemplate reimbursement of outlays of private outgoings. It was submitted for Mr Laurence that even putting aside the question of reimbursement, the payments cannot be determined in advance because it was agreed there would be a reimbursement of flights which varied.

I accept that the vehicle payments are earnings because they are amounts prescribed by the regulations. The earnings are not an entitlement for the payment of money because it was instead the provision of a vehicle. It wasn’t a non-monetary benefit within the terms of subsection 332(3) because subsection 332(3)(b) requires there to be a reasonable money value that has been agreed by the employee and employer, and there was no such agreement in relation to the value of the vehicle.

I am satisfied they are a benefit which has been received, they do not fall within the meaning of section 332(3), they should be considered for the purpose of assessing the high-income threshold, and the Commission can estimate a real or notional value of $31,112.90 minus the amount that should be deducted by assessing the period in late June 2022 to the 1 July 2022 at a rate of 72 cents per kilometre rather than 78 cents per kilometre which applied from 1 July 2022 which would be negligible, and minus instances where Mr Laurence used the vehicle to visit the post office to collect mail. Mr Laurence also said he used the vehicle to attend cafes which had a better internet connection however this was contradicted by the evidence of Ms Laurence who said Mr Laurence conducted his work including conducting meetings and reading emails from their home office. I reject the submission that the times when Ms Laurence was using the vehicle cannot be counted. Those times were private use of the vehicle that Mr Laurence was aware of and condoned by him, and he was well aware the cost of that private use was borne by the Respondent and not by himself or his wife. The evidence supports the conclusion that the vehicle was predominantly driven by Ms Laurence while it was in Queensland. The two reductions referred to above to the Respondent’s figure would only very slightly reduce the figure of $31,112.90 for the VW Touareg. It is apparent applying these reductions the figure would still be substantially above the figure of $17,956.05 which is the additional amount required to be considered sufficient additional earnings beyond his salary to push the Applicant above the high income threshold.

I accept the Respondent’s submission concerning the flights that an agreement was made between Mr Aldridge and Mr Laurence that he was entitled to an amount of $20,000 to pay for his travel between the Gold Coast and Albury, and I am also satisfied that the flights were private outgoings for the benefit of Mr Laurence that the Respondent made an agreement with Mr Laurence to pay in order for Mr Laurence to travel from the Gold Coast to Albury for three days a week to continue working for it, despite having moved to the Gold Coast . On that basis I am satisfied that the amount of $20,000 can be included as an amount falling within the meaning of subsection 332(3)(b). However. if I am wrong about that and there was no such agreement, I would in those circumstances be satisfied that the higher amount of $27,426.92 should be included for the purposes of determining whether Mr Laurence has exceeded the high-income threshold as the payments would have been additional payments pursuant to regulation 3.05(6) as I am satisfied that they should be considered, and if I am wrong in relation to the $20,000 agreement, then a reasonable money value was not agreed, and the Commission can estimate a real or notional value based on the evidence of $27,426.92.

Given my conclusions above concerning the vehicle amounts and the flight payments, any further consideration of the issues in dispute is unnecessary as it is already clear that I have concluded on either of vehicle or flight issues on their own, Mr Laurence has exceeded the high-income threshold, and on account of both he has far exceeded the high income threshold. However, for completeness I would also accept that the car parking permit was in the nature of a personal benefit that would constitute earnings. I am not satisfied on the available evidence that the personal and clothing allowances should be counted.

I have concluded that Mr Laurence’s earnings far exceed the high income threshold of $162,000 given I have concluded that both the flights and vehicle amounts should be included in the assessment of his earnings. On that basis the unfair dismissal application is dismissed as the Commission has no jurisdiction to deal with it. An order will be issued separately and concurrently with this decision to that effect.

COMMISSIONER

Appearances:

Mr William Isdale of Counsel instructed by Ms Suzanna Costello of Hickey Lawyers for the Applicant.

Mr Joseph D'Abaco of Counsel instructed by Mr Graeme Halperin of Haperin & Co for the Respondent.

Hearing details:

2023
By Microsoft Teams Video
7 August

[1] Exhibit 1

[2] Exhibit 2

[3] Exhibit 7

[4] Exhibit 8

[5] Exhibit 9

[6] Exhibit 3

[7] Exhibit 4

[8] Exhibit 5

[9] Exhibit 6

[10] Chieng v Rio Tinto Aluminium Limited[2020] FWC 5264 at [74].

[11] [2011] FWAFB 9137, [19].

[12] [2010] FWA 8124, [33].

[13] [2016] FWC 2298, [34].

[14] (2018) 275 IR 419; [2018] FWCFB 1767, [66].

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