DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Jerome Monteiro
v
Valco Group Australia Pty Ltd T/A Valco Group Australia
(U2017/13650)

COMMISSIONER HUNT

BRISBANE, 13 MAY 2019

Application for an unfair dismissal remedy – jurisdictional objection – applicant’s annual rate of earnings exceeded high income threshold – private value of vehicle allowance – fuel paid in addition to vehicle allowance – parking and overseas car hire included as earnings - Applicant’s total earnings exceeded high income threshold – application dismissed.

[1] On 20 December 2017, Mr Jerome Monteiro made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from Valco Group Australia Pty Ltd T/A Valco Group Australia (Valco) was unfair as it was harsh, unjust or unreasonable.

[2] On 22 January 2018 Valco filed a Form F3 Employer Response to Mr Monteiro’s application. In its response, Valco objected to Mr Monteiro’s application alleging that he earned more than the applicable high income threshold at the time of his dismissal, being $142,000 per annum, and therefore Mr Monteiro is not a person protected from unfair dismissal pursuant to s.382 of the Fair Work Act 2009 (the Act).

[3] The crux of Valco’s objection is that Mr Monteiro’s annual earnings comprised of:

• Annualised salary of $126,250.08;

• Annualised health insurance of $3,934.44; and

• Annualised vehicle allowance of $21,311.48

The total of which is $151,496; above the applicable high-income threshold of $142,000.

[4] This matter was originally allocated to Commissioner Bissett, who considered Valco’s jurisdictional objection. The Commissioner reviewed the material before her and determined that Mr Monteiro’s earnings at the time of his dismissal exceeded the high income threshold, in part due to amounts paid to Mr Monteiro in the course of his employment for health insurance and all of the vehicle allowance. 1

[5] Mr Monteiro appealed the Commissioner’s decision on several grounds, including in relation to the Commissioner’s approach to the calculation of the value of Mr Monteiro’s vehicle allowance. Mr Monteiro submitted that the inclusion of the value of his vehicle allowance did not align with the Full Bench decision in Sam Technology Engineers Pty Ltd v Bernadou [2018] FWCFB 1767 (Sam Technology) issued six days after the Commissioner’s decision.

[6] A Full Bench of this Commission granted permission for Mr Monteiro to appeal principally on two grounds: 2

“(a) We were persuaded that there was at least an arguable case of error in the decision at first instance, to the extent that the Commissioner had not undertaken an examination of the distances travelled by Mr Monteiro in the 12 months prior to the dismissal, relevant to business and personal travel. This consideration would appear to us to have helped guide the Commissioner in apportioning some of the car allowance as earnings, but not necessarily all of the amount; and

(b) It was explained in the hearing before us that in addition to the car…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Monteiro v Valco Group Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FWC 2410
Decision Date: 13 MAY 2019

CaseChat Overview and Summary

In the case of Monteiro v Valco Group Australia Pty Ltd, the applicant, Monteiro, sought an unfair dismissal remedy from the Fair Work Commission (FWC). The dispute arose from Monteiro's employment termination by Valco Group Australia Pty Ltd. Monteiro argued that the termination was unfair and sought redress. The primary issue before the FWC was whether it had jurisdiction to hear Monteiro's application, given that his annual rate of earnings exceeded the high income threshold for unfair dismissal claims.

The legal question that the FWC had to resolve was whether the inclusion of the private value of a vehicle allowance, fuel paid in addition to the vehicle allowance, parking, and overseas car hire should be considered part of Monteiro's earnings. If these were included, his total earnings would surpass the high income threshold, thereby removing the FWC's jurisdiction to hear the application. The FWC needed to determine if these components were appropriately classified as earnings under the relevant legislation.

In assessing the matter, the FWC found that the private value of the vehicle allowance, the fuel paid, parking, and overseas car hire were indeed part of Monteiro's total earnings. As a result, his total earnings exceeded the high income threshold for unfair dismissal claims. Consequently, the FWC ruled that it did not have jurisdiction to hear Monteiro's application. The application was dismissed on the basis that Monteiro's total earnings exceeded the statutory limit, barring the FWC from providing a remedy for the unfair dismissal claim.

Orders