Mrs Kerry Baker v Rio Tinto Coal Australia Pty Limited - [2014] FWC 6741

[2014] FWC 6741

FAIR WORK COMMISSION

DECISION

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

Mrs Kerry Baker
v
Rio Tinto Coal Australia Pty Limited
(U2014/5561)

DEPUTY PRESIDENT ASBURY

BRISBANE, 24 SEPTEMBER 2014

Application for unfair dismissal remedy - Jurisdiction - High income threshold.

[1] This decision concerns an application for an unfair dismissal remedy by Ms Kerry Joy Baker. The Respondent, Rio Tinto Coal Australia Pty Limited (Rio Tinto) has raised a jurisdictional objection to Ms Baker’s application pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] Directions were issued requiring the parties to file and serve submissions and statements of evidence. The parties were further directed to advise whether they sought to cross-examine any person who provided a statement. Both parties were advised that if cross-examination was not required, the matter would be determined on the basis of the material provided by them. Neither party requested to cross-examine any person who made a statement, and accordingly I have determined this application on the basis of the material on the file.

[3] Ms Baker’s employment was not covered by a modern award or enterprise agreement. To be protected from unfair dismissal Ms Baker’s annual rate of earnings had to be less than the high income threshold at the date of cessation of employment. At the date of Ms Baker’s cessation of employment the high income threshold was $129,300.00.

[4] Rio Tinto submitted that Ms Baker earned more than the high income threshold at the date of the cessation of her employment. It submitted that Ms Baker’s package included $8000.00 for the personal use of Rio Tinto’s vehicle. It submitted that this amount was agreed to represent the personal use of the vehicle and comprise part of her income from commencement of employment. It submitted that this provision for the use of Rio Tinto’s motor vehicle took the earnings of Ms Baker beyond $129,300.00.

[5] Ms Baker submitted that only $4000.00 of the $8000.00 allocated in her contract for the private use of Rio Tinto’s motor vehicle should be attributed to her income for assessing whether or not her income was beyond the high income threshold, on the basis that she did not use the vehicle for private purposes or did so on a limited basis.

[6] Section 332 of the Act provides:

“332 Earnings

(1) An employee’s earnings include:

(a) the employee’s wages; and

(b) amounts applied or dealt with in any way on the employee’s behalf or as the employee directs; and

(d) amounts or benefits prescribed by the regulations.

(2) However, an employee’s earnings do not include the following:

(a) payments the amount of which cannot be determined in advance;

(b) reimbursements;

(d) amounts prescribed by the regulations.

Note: Some examples of payments covered by paragraph (a) are commissions, incentive-based payments and bonuses, and…

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.

Continue reading Mrs Kerry Baker v Rio Tinto Coal Australia Pty Limited

Details

AGLC: Mrs Kerry Baker v Rio Tinto Coal Australia Pty Limited [2014] FWC 6741
Case: [2014] FWC 6741
Decision Date: 24 SEPTEMBER 2014

CaseChat Overview and Summary

Mrs Kerry Baker brought an application against Rio Tinto Coal Australia Pty Limited for an unfair dismissal remedy. The Fair Work Commission was the forum for this case, focusing on the jurisdiction of the Commission given the dispute's threshold income level. Mrs Baker alleged she was unfairly dismissed from her employment by Rio Tinto, and sought reinstatement and compensation. Rio Tinto contested the Commission's jurisdiction, arguing that Mrs Baker's annual salary exceeded the threshold amount stipulated under the Fair Work Act 2009 (Cth).

The primary legal issue before the Commission was whether it had jurisdiction to hear Mrs Baker's unfair dismissal application, given her income was above the prescribed threshold. The Fair Work Act 2009 (Cth) stipulates that the Commission does not have jurisdiction over employees earning above a certain income level unless specific exceptions apply. Mrs Baker argued that despite her salary, she was entitled to the protection of the Act, invoking certain exceptions. Rio Tinto maintained that the Commission lacked jurisdiction based solely on Mrs Baker's earnings.

The Commission considered the legislative framework and Mrs Baker's arguments for exceptions. Ultimately, the Commission found that Mrs Baker's salary exceeded the threshold, and no applicable exceptions existed to confer jurisdiction. Consequently, the Commission dismissed the application for lack of jurisdiction. The decision underscored the importance of the income threshold in determining the Commission's jurisdiction over unfair dismissal claims and highlighted the narrow scope of exceptions available.

No further orders were made as the Commission found it did not have jurisdiction to hear the matter.

Orders