Mrs Rebecca Johnson v Benex Civil Pty Ltd

Mrs Rebecca Johnson applied to the Fair Work Commission (FWC) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) alleging that the termination of her employment by Benex Civil Pty Ltd (the Respondent) was harsh, unjust or unreasonable. The Respondent raised a jurisdictional objection to the application, on the grounds that the Applicant’s annual rate of earnings was in excess of the high income threshold of $153,600, as at the time of termination, and therefore, the Applicant was not protected under the unfair dismissal provisions prescribed in s.382(b)(iii) of the Act. The primary issue for the Commissioner to determine was whether the Applicant's earnings exceeded the high income threshold and, if so, whether the Applicant was entitled to an unfair dismissal remedy. The Commissioner considered the relevant case law and submissions of the parties and concluded that the Applicant's annual rate of earnings exceeded the high income threshold. The Applicant's earnings included her base salary, private use of the company vehicle, private health insurance, mobile phone and data, and other benefits. The Commissioner held that the value of the company vehicle, private health insurance, mobile phone and data were to be included in the Applicant's earnings. The Commissioner rejected the Applicant's proposed alternative calculations for the annualised mileage of the company vehicle. The Commissioner also held that the fringe benefit tax was not to be included in the Applicant's earnings. The Commissioner concluded that the Applicant's earnings exceeded the high income threshold and therefore, the jurisdictional objection was upheld, and the application for an unfair dismissal remedy was dismissed.