Mr Peter White v Programmed Facilities Management

[2013] FWC 8647

[2013] FWC 8647

FAIR WORK COMMISSION

DECISION

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

Mr Peter White
v
Programmed Facilities Management
(U2013/6842)

COMMISSIONER BOOTH BRISBANE, 4 NOVEMBER 2013

Termination of employment - high income threshold.

[1] Mr Peter White (the Applicant) was dismissed from his employment with Programmed Facilities Management Pty Limited (the Respondent) on 13 February 2013, having worked for the Respondent for some five years as National Operations Manager. The Applicant applied for unfair dismissal remedy on 22 February 2013.

[2] The Respondent objects to the jurisdiction of the Commission, submitting that the Applicant was paid in excess of the high income threshold and was not covered by a modern award or enterprise agreement. The high income threshold prescribed for the purposes of the Fair Work Act 2009 (the Act) at the relevant time was $123,300.

[3] Evidence provided by the Respondent was that the Applicant's contracted remuneration consisted of a base salary of $120,000, superannuation at 9% of $10,800 plus personal use of a fully maintained Company motor vehicle and a mobile telephone. The Respondent submitted the value of the mobile telephone and motor vehicle for salary calculation purposes, calculated on a conservative basis, to be $1128.46 and in the range of $6745.15 to $10,316.12 respectively.

[4] The Respondent’s submissions on the Applicant’s remuneration were supported by statements from the National Human Resource Manager, the General Manager Finance and the Payroll Manager and included detailed explanation of the methodology used to arrive at the figures submitted, and detailed raw data about the motor vehicle and mobile telephone usage.

[5] The Commission directed on 14 May 2013 that the Respondent was to file evidence in support of its jurisdictional objection and the matter was listed for further directions. That material was filed on 29 May 2013. The Applicant requested further information of the Respondent through my Chambers on 16 July 2013. A Directions hearing was held on 18 July 2013 with both parties participating by telephone.

[6] The Applicant was by this time located in Townsville and experiencing difficulty obtaining advice. Further directions were issued on 20 August 2013 that the Respondent file further submissions and witness statements on its jurisdictional objection by 17 September 2013. The Applicant was directed to file submissions and witness statements in response by 15 October 2013. Any further material from the Respondent was to be filed by 29 October 2013.

[7] The Respondent filed its further material on 17 September 2013 in compliance with the Directions.

[8] My Associate followed up with the Applicant, seeking his submissions. Contact was made with the Applicant on the following dates:

● 1 August 2013 by telephone during which the Applicant undertook to provide my Chambers with advice on the matter in two weeks’ time after seeking legal advice;

● 16 August 2013 by email following up on the telephone call of 1August;

● 20 August 2013, by email, attaching a copy of the Directions (also sent by registered mail on 21 August);

● on or about 19 September 2013 by telephone to obtain up to date email details after the Respondent’s earlier email serving him with its material failed;

● 16 October 2013 by email reminding the Applicant of the directions of 20 August that required him to file and serve material by 15 October; and

● 17 October 2013 by telephone, leaving a message following up on the email of the previous day.

[9] On 22 October 2013 an email was sent to both parties in the following terms:

“Directions were issued in relation to this matter the Respondent complied with the Directions however, to date the Applicant has not provided any material or responded to any contact made by chambers. Commissioner advises that a decision will be made in relation to the above matter on the basis of material that it has been provided to date.

[10] I consider that the Applicant has been provided ample opportunity to respond to the Respondent’s material and provide evidence in support of his case. Any further delay is not warranted.

Applicant’s earnings

[11] Under s.332, earnings include:

a) wages; and

b) amounts dealt with on the employee’s behalf or as the employee directs, and

c) agreed money value of non-monetary benefits.

[12] Compulsory superannuation contributions are not included: s.332(2)(c).

[13] In terms of the motor vehicle, only private use is included, and business use is to be excluded. See Rofin Australia Pty Ltd v Newton 1, and Slavin v Horizon Holdings Pty Ltd2. In the absence of an agreed sum, the process generally used is that described in Kunbarllanjnja Community Government Council v Fewings unreported3:

1. Determine the annual distance travelled by the vehicle in question.

2. Determine the percentage of that distance that was for private use.

3. Multiply the above two figures to obtain the annual distance travelled for private purposes.

4. Estimate the cost per kilometre for a vehicle of that type (may be obtained from RACV, NRMA or other similar motoring associations).

5. Multiply the annual distance travelled for private purpose (obtained at step 3) by the estimated cost per kilometre.

[14] A similar process might logically be applied to mobile telephone usage.

[15] Where there is no agreed amount for non-monetary benefits, as in this case, the Commission may estimate an amount: Fair Work Regulations r.3.05(6).

[16] I am satisfied that the Respondent’s calculations are generally consistent with the process used in Kunbarllanjnja. In order to make those calculations, the Respondent made a number of assumptions. I prefer to be even more conservative about the percentage discount applied for weekend work related use of the mobile telephone. The Respondent applied a discount of 15%. Given the absence of solid evidence as to this matter, I estimate the value of private use of the mobile telephone as $1000. I adopt the low end of its motor vehicle calculations.

[17] I find the Applicant’s earnings for the purposes of s.332 to be as follows:

wages	$120,000.00
estimated value of motor vehicle	$6,745.15
estimated value of mobile telephone	$1,000.00
Total	$127,745.15

[18] On the basis of uncontested evidence before me, at the time of his dismissal the Applicant’s earnings and other amounts worked out in accordance with the regulations was higher than the high income threshold.

[19] The Applicant is not a person protected from unfair dismissal, the Fair Work Commission has no jurisdiction to deal with the application. The application is dismissed.

COMMISSIONER

 1 (1997) 78 IR 78

 2   [2012] FWA 2424

 3   AIRCFB, Ross VP, Watson SDP, Bacon C, 7 May 1998, Print Q0675

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