Mrs Simone Ball v Moultrie Group T/A Moultrie Database & Modelling

[2013] FWC 3194

[2013] FWC 3194

FAIR WORK COMMISSION

DECISION

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

Mrs Simone Ball
v
Moultrie Group T/A Moultrie Database & Modelling
(U2012/17079)

DEPUTY PRESIDENT ASBURY BRISBANE, 21 MAY 2013

Application for unfair dismissal remedy - Jurisdictional objection - high income threshold.

Background

[1] Ms Simone Ball has made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) with respect to her dismissal by Moultrie Group Trading as Moultrie Database and Modelling (Moultrie Group). Moultrie Group initially responded to the application with a jurisdictional objection on the ground that the application was made outside the time required in s.394(2) of the Act.

[2] That objection was withdrawn and Moultrie Group made a further jurisdictional objection on the ground that Ms Ball is not a person protected from unfair dismissal because the sum of her annual rate of earnings exceeds the high income threshold, and she is not covered by an enterprise agreement or a modern award. This Decision concerns that further jurisdictional objection.

Legislation

[3] Section 382 of the Act provides as follows:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: High income threshold indexed to $123,300 from 1 July 2012

[4] The high income threshold is currently $123,300 per annum.

[5] “Earnings” is defined in s.332 in the following terms:

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

(c) the agreed money value of non-monetary benefits; 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;

(c) contributions to a superannuation fund to the extent that they are contributions to which subsection (4) applies;

(d) amounts prescribed by the regulations.

Note: Some examples of payments covered by paragraph (a) are commissions, incentive-based payments and bonuses, and overtime (unless the overtime is guaranteed).

(3) Non-monetary benefits are benefits other than an entitlement to a payment of money:

(a) to which the employee is entitled in return for the performance of work; and

(b) for which a reasonable money value has been agreed by the employee and the employer;

but does not include a benefit prescribed by the regulations.

(4) This subsection applies to contributions that the employer makes to a superannuation fund to the extent that one or more of the following applies:

(a) the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;

(b) the employer is required to contribute to the fund for the employee’s benefit in relation to a defined benefit interest (within the meaning of section 292-175 of the Income Tax Assessment Act 1997) of the employee;

(c) the employer is required to contribute to the fund for the employee’s benefit under a law of the Commonwealth, a State or a Territory.

[6] Regulation 3.05 of the Fair Work Regulations 2009 provides as follows:

3.05 When a person is protected from unfair dismissal — high income threshold

(1) For subparagraph 382 (b) (iii) of the Act, this regulation explains how to work out amounts for the purpose of assessing whether the high income threshold applies in relation to the dismissal of a person at a particular time.

Note   Under section 382 of the Act, a person is protected from unfair dismissal if specified circumstances apply. One of the circumstances is that the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Piece rates

(2) Subregulations (3), (4) and (5) apply if part or all of the person’s income at the time of the dismissal is paid as piece rates that are:

(a) set by reference to a quantifiable output or task; and

(b) not paid as a rate set by reference to a period of time worked.

(3) If the person was continuously employed by the employer and was not on leave without full pay at any time during the period of 12 months immediately before the dismissal, the total amount of piece rates paid or payable to the person in respect of the period of 12 months ending immediately before the dismissal is an amount for subparagraph 382 (b) (iii) of the Act.

(4) If the person was continuously employed by the employer and was on leave without full pay at any time during the period of 12 months immediately before the dismissal, the total of:

(a) for the days during that period that the employee was not on leave without full pay — the actual piece rates received by the employee; and

(b) for the days that the employee was on leave without full pay — an amount worked out using the formula:

is an amount for subparagraph 382 (b) (iii) of the Act.

(5) If the person was continuously employed by the employer for a period of less than 12 months immediately before the dismissal, the total amount of piece rates worked out using the formula:

is an amount for subparagraph 382 (b) (iii) of the Act.

Benefits other than payment of money

(6) If:

(a) the person is entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person’s employer; and

(b) the benefit is not an entitlement to a payment of money and is not a non-monetary benefit within the meaning of subsection 332 (3) of the Act; and

(c) the FWC is satisfied, having regard to the circumstances, that:

(i) it should consider the benefit for the purpose of assessing whether the high income threshold applies to a person at the time of the dismissal; and

(ii) a reasonable money value of the benefit has not been agreed by the person and the employer; and

(iii) the FWC can estimate a real or notional money value of the benefit;

the real or notional money value of the benefit estimated by the FWC is an amount for subparagraph 382 (b) (iii) of the Act.

Submissions

[7] Moultrie Group tendered pay records relating to the twelve month period immediately prior to Ms Ball’s dismissal. It is submitted that Ms Ball’s employment conditions, including her “piece rate” varied, as summarised below:

• Pay periods 19 December 2011 to 14 May 2012, Ms Ball was employed on the basis of 90 hours per fortnight at a rate of $49.00 per hour.
• Pay periods 15 May 2012 to 17 September 2012, Ms Ball was employed on 90 hours per fortnight at a rate of $57.69 per hour.
• Pay periods 18 September 2012 to date of dismissal Ms Ball was employed on 76 hours per fortnight at a rate of $57.69 per hour.

[8] Ms Ball’s gross basic salary for the period of 12 months prior to the dismissal, excluding employer superannuation contributions, was said to have been $120,428.534.

[9] It is further submitted that Ms Ball was in receipt of non-monetary benefits as follows:

Mobile Phone - In accordance with Moultrie Group’s mobile phone policy, all employees are entitled to $50 per month for personal calls. Moultrie Group determines a non-monetary benefit of $600 per annum for personal use of a company mobile phone. A copy of this policy is attached as Appendix 2.

Laptop - Ms Ball had access to a Moultrie Group laptop during the course of her employment for private use. It is determined that the benefit of access to this laptop is $1,000 per annum.

Professional Development - Ms Ball was provided a unique personal and professional development opportunity to attend the International Geological Conference in 2012 in Brisbane. This opportunity was not extended to all Moultrie Group employees. This personal and professional development opportunity cost $1,320.

The total non-monetary benefit to Ms Ball during this period is $2,920. Therefore Ms Ball’s total earnings are $123,349.53 which is above the high income threshold.

[10] The Moultrie Group tendered a copy of its Mobile Phone Policy, which states that employees will be required to reimburse the Company for calls placed exceeding the total amount of $50.00. The Policy does not specifically refer to the personal use of mobile phones and does not specify the period to which the $50.00 limit applies.

[11] Ms Ball submitted that the calculations in relation to her salary, as provided by the Moultrie Group, were incorrect. This is because the first four pay slips are for the period from 18 October 2011 to 12 December 2011 and are outside of the twelve month period immediately prior to the dismissal. Ms Ball also pointed to the fact that two copies of the payslip for the period 1 May 2012 to 14 May 2012 were provided by the Company in its material. On the basis of her own calculations, derived from the payslips provided by the Moultrie Group, Ms Ball asserted that her actual gross basic salary for the twelve months prior to her dismissal was $116,950.67.

[12] Ms Ball also tendered her written contract of employment, and submitted that the contract made no mention of private use of a mobile telephone and laptop computer or professional development as sources of remuneration. In relation to the mobile telephone, Ms Ball said that she was told upon commencing employment that she was allowed reasonable personal use of the mobile telephone and would be required to reimburse the Moultrie Group for any unreasonable use. Ms Ball had not been requested to make any reimbursement with respect to private use of her mobile telephone. Further, Ms Ball said that she had never agreed to any monetary value for the private use of her mobile telephone, and maintained that she had never seen the policy tendered by the Company with respect to mobile phones.

[13] In relation to the laptop computer, Ms Ball said that she had not used the computer for private purposes as she has a personal computer at home. Ms Ball also said that if she had known that a monetary value was being assigned to the private use of her work laptop computer, she would have asked that the value be paid to her as salary.

[14] Ms Ball agreed that she attended the International Geographical Congress in 2012 and although this opportunity was not provided to all employees in the Moultrie Group, it was provided to all employees in the Moultrie Database and Modelling division, which she was representing at the Congress. Ms Ball also asserted that the Congress was professional development which should be provided by Moultrie Group as her employer. Further, Ms Ball asserted that Moultrie Database and Modelling requested employees to be associated with the Australasian Institute of Mining and Metallurgy and the code of ethics of that Institute requires that members will continue their professional development throughout their careers, and actively encourage those under their direction to advance their knowledge and experience. Accordingly Moultrie Group was obligated to provide Ms Ball with Professional Development.

Conclusions

[15] Ms Ball was not employed under a piecework arrangement or paid piecework rates. In the written contract of employment tendered by Ms Ball, her salary is shown as $113,750 and her ordinary hours of work as 45 per week. It is clear from the pay slips tendered by the Moultrie Group that the salary was calculated as an hourly rate as the weekly amount paid varied depending on the hours worked.

[16] Even if the calculations provided by the Moultrie Group with respect to the base rate are accepted, the base salary when considered over the twelve month period prior to the dismissal, provides an annual rate of earnings that is less than the high income threshold. I do not accept that the non-monetary benefits relied on by the Moultrie Group as a basis for contending that Ms Ball’s annual rate of earnings was above the high income threshold for the following reasons.

[17] Ms Ball’s employment was governed by a detailed written contract of employment. The contract makes no mention of any private use of a mobile telephone or a laptop computer. Ms Ball does not dispute that she used her mobile telephone for private purposes. However, there is no evidence about the extent to which Ms Ball used the mobile telephone for private purposes or that this usage was other than reasonable. There is also no evidence that there was any discussion between Ms Ball and any manager of the Moultrie Group in relation to the Mobile Phone policy or the $50 per month amount allowed for personal calls. Further, there was no evidence that Ms Ball was ever asked to reimburse the Company for private use of the mobile phone.

[18] In the absence of any reference in the contract of employment to this matter and evidence of agreement about the extent of private use of the mobile telephone, I am not satisfied that this matter should be considered as a benefit for the purpose of assessing whether the high income threshold applies to Ms Ball. There is also insufficient evidence upon which a real or notional money value of the benefit of private use of a mobile telephone could be estimated.

[19] Similarly, no evidence was provided by the Moultrie Group about the private use of the laptop computer by Ms Ball. It is also the case that Ms Ball specifically denies using the laptop computer for private purposes. For the reasons set out above, I am not satisfied that this matter should be considered or that any real or notional monetary value could be assigned to it.

[20] I am also of the view that the training course attended by Ms Ball was professional development, and there is no evidence of any agreement to the effect that attendance at such training was a non-monetary benefit under Ms Ball’s contract of employment. The written contract of employment between Ms Ball and the Moultrie Group contains a Schedule which specifically refers to training and provides that the Company may require expenses associated with training, including course fees, travel and accommodation expenses, to be repaid by employees if they resign their employment or are terminated summarily.

[21] The jurisdictional objection of the Moultrie Group on the ground that Ms Ball’s annual rate of earnings exceeded the high income threshold is dismissed and an Order to that effect will issue with this Decision. Ms Ball’s application will now be listed for further Directions to determine the manner in which the application is to be progressed.

DEPUTY PRESIDENT

Final written submissions:

8 May 2013.

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