[2016] FWC 6593

FAIR WORK COMMISSION

DECISION

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

Ms Abby Oldfield
v
VIP Bidco Pty Ltd T/A Real Petfood Company (VIP Petfoods)
(U2016/5935)

COMMISSIONER HUNT

BRISBANE, 5 OCTOBER 2016

Application for relief from unfair dismissal — jurisdictional objections — extension of time and high income threshold — application made within time — calculation of proportion vehicle allowance to be included as ‘earnings’ — total earnings found to be less than high income threshold — jurisdictional objections dismissed.

[1] On 5 April 2016, Ms Abby Oldfield filed an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming she was unfairly dismissed by VIP Bidco Pty Ltd T/A Real Petfood Company (VIP Petfoods). The respondent shall hereinafter be referred to as ‘VIP Petfoods’.

[2] VIP Petfoods objected to the Fair Work Commission (the Commission) exercising its jurisdiction to deal with the application on three grounds. The objections are:

(a) The application was lodged more than 21 days after the dismissal took effect;
(b) Ms Oldfield earned more than the high income threshold of $136,700; and
(c) The dismissal was a case of genuine redundancy.

[3] The parties were directed to file material with respect to the application being out of time, together with Ms Oldfield’s earnings. I consider it necessary to determine these two jurisdictional objections before hearing evidence with respect to whether the dismissal was a case of genuine redundancy. If I do not find for Ms Oldfield with respect to either of the first two jurisdictional objections, it is unnecessary to then determine the third jurisdictional issue. If I do find for Ms Oldfield with respect to both of the first two jurisdictional objections, the matter can proceed to determination of the third jurisdictional issue.

Relevant Statutory Provisions – extension of time

[4] Section 394 states:

‘394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.’

[5] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd¹ where the Full Bench said:

‘[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.’ [Endnotes not reproduced]

[6] For exceptional circumstances to arise as contemplated by s.394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.394(3) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

The Jurisdictional Hearing

[7] The matter was listed for jurisdictional hearing on 4 August 2016. At the hearing Ms Oldfield represented herself. VIP Petfoods was represented by Ms Alissa Taylor, HR Director of VIP Petfoods.

Extension of time consideration

[8] The following facts are agreed between the parties:

(a) Ms Oldfield commenced employment with VIP Petfoods in February 2012;

(b) On 7 March 2016, Ms Oldfield was issued with a termination letter; and

[9] Relevant paragraphs within the termination letter issued to Ms Oldfield are as follows:

‘Dear Abby,

This letter confirms the details that have been discussed with you in relation to your role of Business Manager – Independents & Aldi.

…….

We have considered alternative roles within the Company however at this time there are no positions that meet your current experience or capabilities. Your employment will end as a result of redundancy effective 4 April 2016, however you will not be required to work out your notice period.’

[10] Ms Oldfield’s evidence is that while she was notified of the dismissal on 7 March 2016, she understood that it would take effect on 4 April 2016, in accordance with the termination letter issued to her.

[11] Ms Oldfield wrote an email to a solicitor, Ms Pauline Johns on 28 March 2016. Ms Oldfield’s evidence is that she knew of Ms Johns through Ms Oldfield’s father. The email is as follows:

‘Hi Pauline,

I don’t know if dad has spoken to you already but just prior to my traveling overseas I was made redundant from work.

I have been with the company for 4 years and it is near impossible to make my role redundant as I am a business manager for the accounts we manage (Aldi, Metcash etc)

Only two weeks prior to me being made redundant the sales director switched my customers around with a new colleague Chad and then made my new role redundant two weeks after.

I was never given anything formally about the new role and my contract states my old position only.

Do I have any grounds to stand on with fair work?

They are starting to state the role I was switched to they are going to outsource the work to a company to do which if that is true why did they switch me only two weeks prior telling me they required me here as there was lots to be done. Also they passed comment about eventually wanting everyone to be based in Sydney which they never offered me.

Unsure how long I have to lodge something and I’m not back in the country until Monday next week but was hoping you may be able to provide some advice as I believe I was dismissed unfairly.

Even if your (sic) able to action something on my behalf. The fact the (sic) have hired 3 new sales people since October I would have thought of anything they should have been given first priority to be made redundant.

I was told it had nothing to do with my performance and if they had something else they would offer it to me but only two days later they implemented a new account manager to commence.

Would appreciate your help with this.’

[12] Ms Johns responded by email on 31 March 2016 as follows:

‘Dear Abby

Thank you for your email. I have only got to the office today after a few days working interstate.

It sounds like constructive dismissal, for which you can apply to the Fair Work Commission for relief.

However, you may first care approach the Fair Work Ombudsman (link below).

Let me know how you go.’

[13] It is necessary to note that the link provided by Ms Johns is a link to the Fair Work Commission, and not to the Fair Work Ombudsman.

[14] The application form completed by Ms Oldfield on 5 April 2016 nominated 7 March 2016 as the date she was notified of the dismissal. In the application, Ms Oldfield stated 4 April 2016 as the day the dismissal took effect. Ms Oldfield then nominated that she was making the application outside of the 21 day time limit of the dismissal taking effect. Ms Oldfield answered:

‘I went overseas on the 16^th March and prior to that I contacted my solicitor for advice. She only got back to me on the 31^st March as she had been overseas on holidays with advice.

I did not receive her feedback until yesterday 4^th April as I had no email. I also did not understand there was a time period to lodge as my actual termination of employment was only official as of yesterday.’

[15] The answer given by Ms Olfield on the application form is incorrect. She did not contact her solicitor prior to departing on an overseas holiday. Ms Oldfield was overseas between 16 March 2016 and 4 April 2016. She emailed Ms Johns whilst overseas on 28 March 2016, received a response on 31 March 2016, but did not again have email access until 4 April 2016.

[16] Ms Oldfield did foreshadow that her application might be considered to have been made outside of the 21 day time limit.

Determination of out of time issue

[17] If Ms Oldfield had been informed that her redundancy was effective 7 March 2016, and she was being paid four weeks’ wages in lieu of notice in addition to severance that was payable, I would have no hesitation in finding that the effective date of the dismissal was 7 March 2016.

[18] However, Ms Oldfield was not informed of this. The letter presents an impression that the dismissal was effective 4 April 2016. On Ms Oldfield’s evidence, she did not attend for work after 7 March 2016, and knew that she was not required to work this period.

[19] I find that having been informed that the termination was effective 4 April 2016, and that she was not required to work during the four week notice period, the date of Ms Oldfield’s dismissal was 4 April 2016, and not 7 March 2016. If VIP Petfoods had intended the dismissal to be effective 7 March 2016, it should have clearly said so in the termination letter.

[20] The facts in this matter are appropriate to be distinguished from the facts in Siagian v Sanel Pty Ltd (1994) 122 ALR 333. In Siagian, Wilcox CJ determined that Mr Siagian’s employment ended on 29 March 1994 when he was handed a termination slip providing for a termination payment covering the period 1 April 1994 – 15 April 1994. His Honour found there was no intention to continue the employment relationship beyond 29 March 1994, and Mr Siagian was informed that he was being paid termination monies in lieu of notice.

[21] While Ms Oldfield understood that she was not required to attend for work beyond 7 March 2016, her evidence is, and I accept, that she understood that her employment was in place until 4 April 2016, but she was not required to attend for work.

[22] Accordingly, the application having been made on 5 April 2016, one day following the effective date of the dismissal, has been made within the statutory time limit.

[23] If I am incorrect with respect to this determination, for the sake of completeness, I have undertaken the relevant examination with respect to the criteria required to be considered if the application has been filed out of time.

s.394(3)(a) - The reason for the delay

[24] The reason given by Ms Oldfield is that she understood her termination to have taken effect on 4 April 2016 and not 7 March 2016. Ms Oldfield contacted a solicitor family contact on 28 March 2016 inquiring as to her rights to contest the dismissal. Having read the advice on 4 April 2016, Ms Oldfield filed the application the following day.

s.394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[25] It is not disputed that Ms Oldfield was issued with a letter of termination on 7 March 2016. The termination letter states that Ms Oldfield’s employment will end as a result of redundancy effective 4 April 2016.

s.394(3)(c) - Any action taken by the person to dispute the dismissal

[26] Ms Oldfield made contact with a solicitor family contact on 28 March 2016, whilst overseas. The email sent by Ms Oldfield indicates she was making inquiries to consider disputing the dismissal.

[27] Ms Oldfield does not appear to have informed VIP Petfoods of her intention to dispute the dismissal.

s.394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[28] VIP Petfoods submitted that it would be prejudiced if an extension of time was granted. It is submitted that the prejudice would be with respect to time, resources and expense.

s.394(3)(e) - The merits of the application

[29] VIP Petfoods submitted that Ms Oldfield was dismissed due to a genuine redundancy. With regard to the merits of the application, it was put by VIP Petfoods, “….the Respondent submits that it is clear that the merits of the application are poor given the three jurisdictional objects raised by the Respondent.”

[30] It is not clear that the merits of the application are poor simply because VIP Petfoods has made three jurisdictional objections.

[31] In the matter of Kornicki v Telstra-Network Technology Group² the Commission considered the principles applicable to the extension of time discretion under subsection 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said:

‘If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.’

[32] To require an applicant to establish more than that the substantive application was not without merit would, as noted by the Full Bench in Kyvelos v Champion Socks Pty Ltd³:

‘… serve as an encouragement to other applicants for late acceptance pursuant to subsection 170CE(8) to put the whole of their evidentiary case and seek to cross examine the respondent’s witnesses to reduce the possibility of an adverse finding on the merits. This would lead to unjustifiable delay and expense.’

[33] I have considered the material filed in relation to the merits of the application and I am of the view that Ms Oldfield’s application is not completely without merit. It is necessary, however, to determine at the next juncture the jurisdictional objection of dismissal due to a genuine redundancy.

s.394(3)(f) - Fairness as between the person and other persons in a similar position

[34] VIP Petfoods submitted that the Commission generally has taken a strict and literalist approach to the meaning of ‘exceptional circumstances’, and in the circumstances for the delay in Ms Oldfield’s filing of her application, it would be unfair to other individuals who have filed applications only one or two days out of time if an extension of time was granted for Ms Oldfield.

Determination of out of time application

[35] As I have found Ms Oldfield’s application is not out of time at [22] it is unnecessary to grant an extension of time. However, if I am incorrect with respect to this issue, having considered the relevant criteria above, if Ms Oldfield’s dismissal was effective 7 March 2016, I would grant an extension of time to the filing of the application.

[36] I do not consider there is any greater prejudice to VIP Petfoods in the application proceeding when compared with other employers. Furthermore, I consider that Ms Oldfield did make relevant inquiries with a solicitor family contact within the relevant time period, requesting relevant action be taken on her behalf, all the while she was overseas.

[37] Having considered all of the above criteria, if it was necessary to grant an extension of time, I would determine that there were exceptional circumstances for the granting of the extension.

Relevant statutory provision – high income threshold

[38] Section 382(b)(iii) of the Act provides that a person is only protected from unfair dismissal where:

‘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.’

[39] ‘Earnings’ is defined in s.332 of the Act:

‘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 291-175 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.’

[40] In Francesco Zappia v Universal Music Australia Pty. Ltd. T/A Universal Music Australia 4 the Full Bench found:

‘[9] On the appeal, Mr I Latham, of counsel, who appeared for the appellant both at first instance and on the appeal, submitted that his Honour had erred in his construction of the expression ‘annual rate of earnings’. In our view his Honour was clearly correct. Section 382 of the Act relevantly provides that a person is protected from unfair dismissal at a time if, at that time, 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. It is clear that the time at which the annual rate of earnings must be ascertained is at the time of the termination of the person’s employment. What needs to be ascertained is the annual rate of earnings at that time, not the annual earnings to that time (the amount earned in the 12 months to that time).’[emphasis added]

[41] The high income threshold at the time of the dismissal was $136,700. It is not contested that Ms Oldfield’s base salary for the relevant period of time was $122,613 per annum.

[42] In addition, Ms Oldfield was paid a $20,000 per annum car allowance.

Car allowance

[43] Prior to the hearing, VIP Petfoods submitted that I should determine that all of the $20,000 car allowance paid to Ms Oldfield should count towards Ms Oldfield’s earnings, resulting in earnings of $142,613, exceeding the high income threshold of $136,700.

[44] During the hearing I heard evidence from Ms Oldfield in relation to travel undertaken by her for work purposes. Ms Oldfield estimated that the kilometres travelled by her in her vehicle in the 12 months immediately before the dismissal were 15,000. She estimated that she travelled approximately 2,000 kilometres for local business visits, constituting business travel. That is, she visited customers at their premises during the day, often having driven from home to the workplace, and then visited customers’ premises.

[45] Ms Oldfield also gave evidence that she would regularly travel interstate by air, and it would be necessary for her to travel from her home to either the Gold Coast Airport or the Brisbane Airport.

[46] Ms Oldfield estimated that she might travel to the airport (return) weekly. Given the uncertainty of the regularity of the travel from home to the airport for arguably business purposes, I directed both parties to file material relevant to interstate travel undertaken by Ms Oldfield in the 12 months prior to the dismissal.

[47] After hearing Ms Oldfield’s evidence during the hearing, I informed the parties that it would be necessary for me to determine how many kilometres Ms Oldfield travelled in the relevant period in her private vehicle, and calculate how much of the $20,000 car allowance I should attribute to personal use as opposed to business use.

[48] The relevant test to apportion earnings when an employee is provided with a car allowance is this:

(a) Calculate how many kilometres the vehicle travelled in the relevant period, that being 12 months prior to dismissal;
(b) Calculate how many kilometres were for personal use;
(c) Calculate how many kilometres were for business use;
(d) Determine, as a percentage how much personal use there was against the total kilometres travelled; and
(e) Apply the percentage against the annual car allowance to determine the value of the earnings.

[49] The examination of personal use as opposed to business use is an appropriate way to determine the value of a car allowance. ⁵

[50] I informed the parties that in order for Ms Oldfield to remain under the high income threshold I would need to determine that she earned $136,699 or less, and therefore no more than $14,086 of the $20,000 car allowance could be attributed as personal use if the application was to proceed. I explained that this represented approximately 70% personal use and 30% business use. If Ms Oldfield could demonstrate that her business use as a percentage of total kilometres travelled in the relevant period was approximately 30% or more, she would fall under the high income threshold and her application could proceed to determine the third jurisdictional issue.

[51] Both parties filed extensive material in relation to travel said to have been undertaken for business purposes.

Submissions of VIP Petfoods

[52] On 11 August 2016, VIP Petfoods filed material relevant to the business travel said to have been undertaken by Ms Oldfield in the relevant period. A signed statement of Mr Rex De Vantier, Chief Operating Officer was filed. Mr De Vantier attested to Ms Oldfield travelling approximately 1,560 kilometres per annum on local business travel.

[53] Evidence of interstate business trips travelled by Ms Oldfield for the relevant period was provided to the Commission. VIP Petfoods submitted that Ms Oldfield typically travelled approximately 25 kilometres per day each way from her home to the normal workplace constituting personal travel. On the days when Ms Oldfield travelled to the Gold Coast airport from her home to catch an interstate flight, she would travel 49 kilometres each way. Similarly, on the days when Ms Oldfield travelled to the Brisbane Airport from her home to catch an interstate flight, she would travel 72 kilometres each way.

[54] It is VIP Petfoods’ contention that only the distance greater than 25 kilometres each way should be apportioned to business travel, given that if Ms Oldfield had attended work that day, she would have travelled 25 kilometres to get to work, and those kilometres would be attributed to personal use. This proposal has been described by VIP Petfoods as the ‘variance method’ of calculation.

[55] On VIP Petfoods’ variance method calculation, when Ms Oldfield travelled to the Gold Coast Airport, only 24 kilometres should be attributed to business use, as opposed to 49 kilometres. When travelling to the Brisbane Airport, only 47 kilometres should be attributed to business use, as opposed to 72 kilometres.

[56] It is VIP Petfoods’ contention that Ms Oldfield’s business travel should be considered to be no more than 1599 kilometres for the variance method airport travel, together with a maximum of 2,000 kilometres for local business travel claimed by Ms Oldfield during the hearing.

[57] Accordingly, of the approximate 3,600 kilometres travelled for business use, when tested against the 15,000 kilometres claimed by Ms Oldfield to have been travelled in the year, this represents approximately:

$4,800 attributable to business use (3,600km / 15,000km = 24%)

$15,200 attributable to private use (11,400km / 15,000km = 76%)

[58] Therefore, VIP Petfoods submits that I should determine that Ms Oldfield’s earnings were $122,613, plus $15,200, and equal to $137,813, exceeding the high income threshold.

Submissions of Ms Oldfield

[59] On 15 August 2016, Ms Oldfield filed submissions with respect to the travel undertaken by her. Ms Oldfield stated that she was comfortable to accept the variance model proposed by VIP Petfoods with respect to the airport travel undertaken by her.

[60] Ms Oldfield’s calculations are as follows for each way travel:

Home to work: 21 kilometres

Home to Gold Coast Airport: 50.3 kilometres, variance 29.3 kilometres

Home to Brisbane Airport: 71.6 kilometres, variance 50.6 kilometres

[61] Ms Oldfield stated that she had undertaken four interstate trips in addition to the ones nominated by VIP Petfoods. She requested those additional trips be taken into consideration. Ms Oldfield cited her airport business travel using the variance method and the kilometres as stated by her to be 2,293.3 kilometres.

[62] Curiously, Ms Oldfield provided a statement that increased the kilometres claimed to be travelled by her locally from 2,000 at the hearing, to 8,313.2 kilometres. Ms Oldfield calculated her total business kilometres to be 10,606.50.

[63] Having claimed that she travelled 10,606.50 kilometres in the relevant period for business purposes, Ms Oldfield put her business travel against the 15,000 total kilometres travelled, and came to a calculation that her business travel represented 70.7% of the total kilometres travelled.

[64] Ms Oldfield claimed that of the $20,000 car allowance, only $5,860, representing 29.3% of the kilometres travelled should be attributed to personal use. Therefore, on Ms Oldfield’s calculations, her earnings for the year should be found to be no more than $128,473, and therefore under the high income threshold.

Further submissions filed

[65] An extensive amount of further material was filed by each of the parties. VIP Petfoods contested Ms Oldfield’s assertions that she travelled 8,313.20 local kilometres as claimed by her. It was also put that even on Ms Oldfield’s assertions, she would have travelled more than 15,000 kilometres per annum, and therefore further evidence should be put as to exactly the kilometres travelled by her over the relevant period.

[66] On 7 September 2016, the parties were informed that if neither party wished to have a further hearing in relation to the kilometres travelled, the matter would be determined on the papers. Neither party requested a further hearing in relation to this issue, and accordingly I reserved my decision.

Analysis undertaken by the Commission

[67] Having received extensive submissions from the parties as to how many kilometres per annum were travelled by Ms Oldfield in her private vehicle, and how many kilometres might be attributed to business use, an analysis is provided below.

[68] With respect to the airport travel undertaken by Ms Oldfield, I do not accept the variance method proposed by VIP Petfoods and agreed by Ms Oldfield. There were a number of occasions during the relevant period where Ms Oldfield was required to travel interstate for business. It was necessary for her to travel from her home to one of two airports.

[69] If I were to accept the variance method as proposed, Ms Oldfield would be responsible for the first 25 kilometres or so of the 50km or 71km journey. Immediately upon commencing the 26^th kilometre, the journey would move from a personal journey to a business journey.

[70] If Ms Oldfield had travelled by a taxi, I expect the entire journey would be paid by VIP Petfoods, and Ms Oldfield would not be responsible for the cost of the first 25 kilometres.

[71] If an employee is responsible for their own journey from their home to their normal workplace, I do not consider that they are responsible for the cost of the journey from their home to the airport to undertake business travel unless expressly provided for in a contract of employment or industrial instrument. I do not accept that an employee should be responsible for the cost of the identical kilometres that they would otherwise have travelled to their normal workplace, and only kilometres in excess of the normal journey are the employer’s responsibility to ensure compensation or reimbursement.

[72] I determine that the entire journey from home to the airport and return should be attributed to business use and not personal use. The airport is not Ms Oldfield’s normal workplace.

[73] On the information before me, there were at least 29 interstate trips travelled by Ms Oldfield in the relevant period. The kilometres travelled by Ms Oldfield from her home and to the respective airport and return amount to 2,993 kilometres. On the variance method, the kilometres travelled amount to 1,669.30.

[74] Of the 52 weeks worked in the relevant period, it is necessary to deduct four week’s annual leave and approximately two weeks of public holidays not worked. Accordingly, there were approximately 46 weeks where Ms Oldfield travelled from home to her workplace. Her daily return commute was 45.3 kilometres. Before considering deductions, Ms Oldfield travelled 45.3 kilometres per day, 5 days per week, 46 weeks of the year. The kilometres travelled were 10,419.

[75] It is then necessary to deduct from this amount the 29 occasions Ms Oldfield travelled to the airport instead of from her home to the normal workplace. This calculation is 29 multiplied by 45.3, a total of 1,313.70 kilometres. The running calculation is 10,419 kilometres less 1,313.7 kilometres, a total of 9,105.3 kilometres.

[76] The airport kilometres must then be included, and amount to 2,993 kilometres. In the relevant period, the calculation to- date is then a total of 12,098.3 kilometres

[77] I do not accept Ms Oldfield’s submissions that she travelled 8,313.2 kilometres for local business travel. I consider that Ms Oldfield exaggerated her claimed local business travel because she was confused with respect to the statement made by me during the hearing that it would be necessary to find approximately 30% of business use in order to fall under the high income threshold. I find Ms Oldfield travelled only 2,000 kilometres for local business travel.

[78] Accordingly, the kilometres travelled now total 14,098.30.

[79] There is evidence that Ms Oldfield travelled 919.80 kilometres business travel for attendance at work conferences, including dropping colleagues at the airport. I accept this should be attributed to business travel. On some of these occasions Ms Oldfield returned directly to home, and accordingly a deduction of 335.2 kilometres should be made from the total kilometres travelled during the relevant period.

[80] The running calculation of kilometres travelled by Ms Oldfield in the relevant period is 14,682.90 kilometres.

[81] Ms Oldfield submitted that she travelled minimal kilometres after returning home from work and on weekends and on holidays. I determine that Ms Oldfield would have necessarily travelled approximately 50 kilometres per week on various errands. In addition to the 14,682.90 kilometres, I add a further 2,600 kilometres for private use of the vehicle on weekends. The total is 17,282.90 kilometres over the relevant period.

[82] Having determined Ms Oldfield’s kilometres travelled in total over the relevant period is 17,282.90, it is necessary to determine how many kilometres were travelled for business use as opposed to personal use.

[83] I find that Ms Oldfield travelled 2,993 kilometres for airport travel, 2,000 kilometres for local business travel, and 919.80 kilometres for conference travel. All of these kilometres constitute business travel, and total 5,912.80 kilometres.

Conclusion

[84] The business kilometres travelled as a proportion of the total kilometres travelled is 34.21%. As a proportion of the $20,000 car allowance, the amount to be attributed to business use is 34.21% of $20,000, equal to $6,842. The balance of the $20,000, that being a sum of $13,158 represents earnings as a result of personal kilometres travelled by Ms Oldfield.

[85] Ms Oldfield’s earnings during the relevant period total $122,613 plus $13,158, an amount of $135,771. This amount is below the high income threshold.

[86] The jurisdictional objections by VIP Petfoods with respect to the out of time issue and the high income issue are dismissed. The application shall proceed and a determination on the jurisdictional objection with respect to dismissal due to genuine redundancy shall be made.

COMMISSIONER

1 [2011] FWAFB 975.

2 Kornicki v Telstra Network Technology Group [Print 3168, 22 July 1997] at page 8.

3 Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [15].

4 [2012] FWAFB 6108.

⁵Hird v SilkRoad Inc[2014] FWC 5035 at [8].

Printed by authority of the Commonwealth Government Printer

Ms Abby Oldfield v VIP Bidco Pty Ltd T/A Real Petfood Company (VIP Petfoods)

[2016] FWC 6593

5 OCTOBER 2016

DECISION