Mr Sean Venning v McConnell Dowell Constructors (Aust) Pty Ltd

[2013] FWC 7838

FAIR WORK COMMISSION

EX TEMPORE DECISION

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

Mr Sean Venning
v
McConnell Dowell Constructors (Aust) Pty Ltd
(U2013/10463)

DEPUTY PRESIDENT SMITH

MELBOURNE, 9 OCTOBER 2013

Application for relief from unfair dismissal— whether applicant exceeds the high income threshold—whether certain allowances constitute remuneration for the purposes of the high income threshold—certain allowances do not constitute remuneration—jurisdictional objection dismissed - application remitted for arbitration.

Introduction

[1] On 11 June 2013 Mr Sean Venning lodged an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. McConnell Dowell Constructors (Aust) Pty Ltd (McConnell Dowell) subsequently lodged a jurisdictional objection against the application arguing that Mr Venning’s income exceeded the high income threshold (which at the time of Mr Venning’s dismissal was $123,300).

[2] The Act requires jurisdictional objections to be dealt with before the merits of the application. 1 I held a hearing on 4 October 2013 to deal with the jurisdictional objection. Following submissions from the parties, I delivered my decision that Mr Venning’s income did not exceed the high-income threshold. I now publish those reasons, with minor edits.

Consideration

[3] The only issue in contention between the parties was whether or not the site allowance that was paid to Mr Venning constitutes remuneration for the purposes of determining whether or not his salary was in excess of the high income threshold.

[4] Mr Venning’s basic salary at the time of his dismissal was $114,500 per year plus superannuation. Compulsory superannuation contributions are not included in an employee’s earnings. 2

[5] Mr Venning was employed under an employment agreement for McConnell Dowell’s Australian-based staff (the employment agreement), which was annexed to the submissions of the employer. An enterprise agreement did not apply to Mr Venning and there was no evidence as to whether or not he was covered by a modern award.

[6] Clause 10 of the employment agreement defines the employee’s total fixed remuneration package for the position as including the base salary and the compulsory superannuation contribution. It does not include the site allowance.

[7] Further, Schedule A to the employment agreement defines the site allowance as follows:

The purpose of the Site Allowance is to compensate the Employee for various site conditions.

The Company reserves the right to change or cease payment of the Site Allowance where there is no longer a requirement for the Employee to work at the site or where he or she is no longer subject to the conditions that warrant the payment of the Site Allowance. The Company will provide the Employee with notice of any changes in Site Allowance or the cessation of its payment.

The allowance shall not be paid when the Employee is on any leave or is working at locations other than the project site.

Decision

[8] I am of the view that the site allowance is not to be considered when determining whether or not an employee exceeds the high income threshold and is therefore a person protected from unfair dismissal 3 as it is for disabilities associated with the site and is not guaranteed.4

[9] Given that Mr Venning’s base salary at the relevant time was less than the high income threshold of $123,300, I dismiss McConnell Dowell’s jurisdictional objection and the matter will be remitted to the arbitration roster.

DEPUTY PRESIDENT

Appearances:

S. Venning the applicant.

M. Durrant on behalf of McConnell Dowell Constructors (Aust) Pty Ltd.

Hearing details:

2013.

Melbourne:

October, 4.

1 s.396 of the Act.

2 ss.332(2)(c) and 332(4)(c) of the Act.

3 s.382 of the Act.

4 See Explanatory Memorandum 2008 at paragraph 1304.

Printed by authority of the Commonwealth Government Printer

In the matter of Mr Sean Venning against McConnell Dowell Constructors (Aust) Pty Ltd, the Fair Work Commission considered the applicant's application for relief from unfair dismissal. Mr Venning, a former employee of the respondent, sought to challenge his dismissal on the grounds that it was harsh, unjust, or unreasonable. The primary issue before the Commission was whether Mr Venning exceeded the high income threshold for eligibility to seek relief from unfair dismissal and whether certain allowances he received constituted remuneration for the purposes of determining this threshold.

The Commission had to determine if the allowances paid to Mr Venning were to be considered part of his remuneration for the high income threshold calculation. The respondent argued that these allowances were not remuneration, while the applicant contended that they should be included. The Commission examined the nature and purpose of the allowances, their regularity, and their connection to the employee's work. It was concluded that the allowances did not constitute remuneration as they were not regular payments linked to the employment but rather specific payments for particular purposes not integral to the employment relationship.

Following this determination, the Commission found that Mr Venning did not exceed the high income threshold, thereby making him eligible to seek relief from unfair dismissal. The Commission also dismissed the jurisdictional objection raised by the respondent and remitted the matter back for arbitration on the merits of the unfair dismissal claim. This decision ensures that Mr Venning's application proceeds to the appropriate forum for a full examination of the dismissal's fairness.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established