Ms Nicole Roberts v High Professional Productions Pty Ltd T/A Hi-Vis Labour Hire

[2010] FWA 3462

[2010] FWA 3462

FAIR WORK AUSTRALIA

DECISION

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

Ms Nicole Roberts
v
High Professional Productions Pty Ltd T/A Hi-Vis Labour Hire
(U2009/13549)

DEPUTY PRESIDENT LEARY HOBART, 30 APRIL 2010

Termination of Employment

[1] This is an application by Nicole Roberts (the applicant) made pursuant to s.394 of the Fair Work Act (the Act) alleging that her termination of employment by High Professional Productions Pty Ltd T/A Hi-Vis Labour Hire (the respondent) was unfair.

[2] The respondent objects to the application arguing that pursuant to s.382 of the Act the applicant was an award free national system employee who earned in excess of the high income threshold. The respondent submitted that the applicant’s total remuneration was $125,700 per annum, this was reduced to $116,594.81 and then finally to $113,075.75. Any and all of those amounts would put the total remuneration in excess of the high income threshold currently prescribed as being $108,300.00.

[3] The final value of the salary package according to the respondent was based on the following:

Salary $90,000.00

Excess superannuation $ 5,400.00

80% private use vehicle $13,810.00

Muffler repair $ 652.30

70% personal use Mobile phone $ 1,317.00

50% personal use laptop computer $ 626.45

Diploma costs $ 1,270.00

$113,075.75

Statutory Context:

[4] Section 394(1) of the Act provides that a person who has been dismissed may apply to FWA for an order under Division 4 of Part 3-2 of the Act to grant a remedy. Section 396(b) states that FWA must decide whether the person was protected from unfair dismissal before considering the merits of an application lodged pursuant to s. 394(1).

[5] Regarding the protection of a person from unfair dismissal, s. 382 of the Act provides:

“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 $108,300 from 1 July 2009”

[6] In relation to earnings, s. 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
(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.”

[7] Regulation 3.05(6) provides:

“ 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) FWA 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) FWA can estimate a real or notional money value of the benefit;

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

[8] The parties agree that the annual salary was $90,000.00 per annum with a superannuation excess of $5,400.00, being 6% over the statutory 9% entitlement, giving a total of $95,400.00. In addition it was submitted by the respondent that the applicant had a number of non-pecuniary benefits taking the total package over the threshold limit.

[9] The parties disagree as to the value of the non-pecuniary benefits.

[10] The applicant commenced employment on 1 July, 2008. On 24 June, 2008, she signed a Letter of Offer dated 10 June, 2008, for the position of General Manager which said:

“I am pleased to confirm to you in writing an offer of employment with Hi-Vis Labour Hire.

Your Salary package will be as follows:

(i) $90,000.00 per annum (4 weeks annual leave per annum & 10 days sick leave per annum);

(ii) 15% superannuation;

(iii) Fully maintained Company Vehicle;

(iv) Laptop Computer, Mobile Phone.”

[11] The letter was signed by the Managing Director, Peter Waller, who sought that the applicant sign the letter “to indicate your acceptance of the terms and conditions as previously discussed….” 1

[12] Mr Waller said that it was his role to “look after all the labour hire of the business; that’s with the clients, the recruitment, the placements and things like that. The hiring and the firings and things like that of all the casual employees. Mrs Roberts is very good at accounting. She’s a CPA accountant and things like that and very good with reports and things like that. I needed someone in there for me to continue to grow the business in that area and that’s what she was there to do. The position description was drafted by herself with the listing all the duties there in it and it was, you know, basically there to run the administration side of the business, the accounting, the administration side of it and that – I knew it was right up her alley……..”  2

[13] When discussing the laptop Mr Waller said “She requested it at the time of her appointment. What she did with it or anything like that, I didn’t ask questions, you know. All I wanted was someone of her expertise to run the business. She was very good at it. She’d done it beforehand. If that’s what she needed to run the business and do that, I didn’t have a problem with that. Same with the phone. Same with the car. Same with everything I provided. She was very good at her job. If that’s what it took to do that job, I didn’t have an issue.”  3

[14] The respondent submitted that the value of the non-pecuniary benefits was considerable and included the motor vehicle, mobile telephone, computer and the costs associated with enrolment in a Diploma course in Human Resources (HR).

[15] Sworn evidence was presented by:

David Lindsay Wilson; Chartered Accountant and Business Adviser;

Mr Peter John Waller; Managing Director High Professional Productions Pty Ltd T/A Hi-Vis Labour Hire;

Nicole Leanne Roberts; the applicant.

[16] Following the formal hearing the parties were asked to provide final written submissions addressing what they considered was the monetary value of the non-pecuniary benefits. The parties agreed to each provide final written submissions ‘together’ on the same date. The respondent did not seek to exercise a right of response.

The Salary Package:

[17] Mr Waller rejected the suggestion that he had offered the salary package accepted by the applicant. He said that the applicant had “made her own salary package”,  4and that they had “several conversations in regards to the salary” 5prior to her receiving her letter of offer. He said “She nominated that she wanted $90,000 a year, a car and perks.” 6

[18] It was Mr Waller’s evidence that the applicant chose the make and colour of the motor vehicle she would prefer. He said that “….all the arrangements were done. I just paid for it and Mrs Roberts picked it up and took it from there.”  7 He said that there was already a vehicle available at the time of the discussion about salary but that the applicant requested a specific type and colour of vehicle which he was happy to provide. He said he told her “…it was not an issue.” 8

[19] It was the evidence of the applicant that the respondent had contacted her about the sale of the business. She said that during the course of the conversation she said to the respondent “Well make me an offer and I might come back. I might consider coming back, and he did and I accepted that offer. There was no negotiation regarding the salary or the car or anything else. It was just pure and simple acceptance of that offer that was made.”  9

[20] The applicant had previously been employed by the respondent in the role of General Manager from 12 June, 2007 to 27 November, 2007.

[21] I prefer the evidence of the respondent in respect to the provision of the salary package. Nonetheless I am of the view that the differing positions of the parties in respect to the offer and acceptance of the package has little relevance to a determination of the value of the non-pecuniary benefits enjoyed by the applicant.

The HR Diploma Course:

[22] The applicant, according to Mr Waller, suggested that the four administrative employees should explore the possibilities of getting a diploma in HR to “lift the image of the business.”  10 He said that all four employees, including himself, were enrolled in the course which ran for about three months and “was all through work time,….it was two days in a row for each module and pretty much either a Thursday or Friday of each week…..the classes went from 9am to 4pm.” 11

[23] Whilst it was his evidence that he did not think the HR diploma was necessary for the applicant’s role and that “she convinced me that it was a good idea”  12 he conceded that she did have supervision responsibility for four administration staff, which he said was “pretty basic” 13 and agreed that her position description, which he said the applicant drew up herself, referred to such responsibility. Mr Waller said her role did not require any formal HR qualifications as her “primary function was the accounting and administration side of the business.” 14

[24] The applicant said there “was a number of dismissals that were occurring in the business and a number of people leaving from the administration side of the business. I was quite concerned about that and felt that it was important to train up all employees in that regard….”  15

[25] Mr Waller conceded that he authorised the attendance of the applicant and other staff at the diploma course but said that it had been recommended by the applicant and that “that’s what she wanted, that’s what happened.”  16

[26] In respect to the cost of the HR diploma course Mr Waller said it was “about $1200 per person”  17.

[27] He said he used to joke about it a lot because “I thought, Geez, I fell out of school in grade 8. I don’t particularly want to go back to school and I’ve sort of taught myself through everything, and then she organised for a fellow to come out from TAFE to sit with us and at the time everyone was sort of pushed. Yep. Okay. We’ll enrol, and I think we enrolled.…four of us at the time.”  18

[28] There is no doubt the attainment of further qualifications would benefit the applicant both in her employment with the respondent and with any future employer. The respondent would have also benefited from the additional skills and qualifications even though it was argued that the qualification was not necessary for the performance of the role for which the applicant was engaged.

[29] Nonetheless the respondent agreed to the suggestion and supported the pursuit of the diploma achieved. If he was opposed to the applicant, and a number of other employees including himself, enrolling in the course he was in a position to refuse the applicant’s request.

[30] I am of the view that there is little, if any, personal benefit to the applicant.

[31] The attainment of the diploma was undertaken with the agreement and support of the respondent who did concede that there would be some, albeit insignificant, benefit provided to his business. He did say “I had no problem with staff development. I had no issues with that.”  19

[32] I am of the view that the HR Diploma course provided little value in respect to personal benefit to the applicant. For the purpose of s.382(b)(iii)of the Act I do not include any value for it in the calculation addressing the high income limit.

The Laptop Computer:

[33] In respect to the laptop Mr Waller said “she just wanted a laptop” but said he could not think of any occasion where she may have used the laptop out of hours for work purposes.  20

[34] Further it was his evidence that there was no direction provided by him that the laptop or the phone were for work purposes only.  21

[35] In his sworn statement Mr Waller said that the applicant “to the best of my knowledge 100 per cent of the laptop was for personal use.”  22 He did say however that he had taken the laptop to the UK on a four day trip but was not able to access his emails so did not use it at that time. He also agreed that it was possible, albeit unlikely, that the applicant used the laptop to prepare monthly reports and other business documents but he did not agree that there would have been a need for that work to be done at home but conceded that he did not and would not know if it was or was not. Mr Waller said that another employee had used the laptop on one occasion only which he did not recall when preparing his statement but said “it wasn’t a big issue.” 23

[36] Mr Waller was of the view that the laptop was kept at the applicant’s home as she had a desktop computer in the office which, he said, was all she needed to perform her work. He agreed under cross examination that he did not search her office drawers, but said he had never seen the laptop in the office and in his view said that it was unlikely that she had it in the office.  24

[37] The applicant said that the laptop was at home about 50% of the time and her private usage was zero as she had three computers at home so there was no need for her to use the laptop for her personal use.  25She did however use it if, and when, she went on trips. 26

[38] I am of the view that the laptop represented little or no personal benefit to the applicant. It seems that it was superfluous to her needs in any case other than perhaps some use when she travelled. It was her evidence that she had three computers at home as well as a computer in the office so any personal use would be limited if at all.

[39] There is no evidence that would support a claim that the laptop was used for personal benefit and the respondent testified that he gave no direction that the laptop was for work purposes only.

[40] Accordingly for the purpose of s.382(b)(iii)of the Act I do not include any value for any personal benefit to the applicant for the laptop computer.

The Motor Vehicle:

[41] It was the evidence of the applicant that she “was permitted to use the vehicle for personal use.”  27

[42] It was the applicant’s final estimate that her personal travel would equate to no more than 65.5% of the total kilometres travelled by the vehicle.

[43] The respondent initially argued that 90% of travel was for the applicant’s personal use but that was reduced to 80% in the final analysis.

[44] Mr Wilson testified that he had prepared a report for the respondent in respect to what his organisation considered was the monetary benefit to the applicant by provision of the “fully maintained company vehicle” being a 2008 Camry Altise. He said that he had calculated a benefit of $17,179 per annum to the applicant. It was his evidence that as the respondent did not have a policy in respect to how often motor vehicles are replaced the calculations he provided had been based on the vehicle being maintained for a period of four years. He said that the calculation took into account depreciation, interest on the capital invested and fringe benefit tax payable for provision of the vehicle. He included supporting information as to the basis of the calculations.

[45] During the proceedings an issue was raised in respect to fringe benefit tax and the processing of amendments to tax returns. To that end a further document was provided by Mr Wilson which was attached to the respondent’s final written submissions. Mr Wilson was not examined on its content or relevance and the applicant objected to its acceptance.

[46] In any case it would appear that no log book exists for the vehicle and there remains a question about the payment of fringe benefit tax so Mr Wilson’s calculations may have been based on inaccurate or incorrect information provided to him.

[47] Accordingly I do not rely on Mr Wilson’s evidence.

[48] The respondent submitted that the vehicle’s service manual which covered the period 1 July, 2008 to 13 October, 2009, showed that the vehicle had traveled 30,939 kilometres. It was submitted that the vehicle had recorded 26 kilometres when the applicant took delivery on 23 June, 2008. These are the figures relied upon by the respondent which do not take into account any personal use by the applicant prior to 1 July, 2008. The applicant’s use of the vehicle would therefore be for 30913 kms. The figures were accepted by the applicant.

[49] In compliance with the Directions for written submissions the applicant provided a list of what she claimed to be business related travel. An addendum to the first list was provided at the hearing and that document was further amended during examination. Further claims for alleged business trips were attached to the final written submissions. It was submitted that the changes to the original claim were necessary as it had been prepared by the applicant from memory but having received copies of telephone accounts and her diary from the respondent she was able to review her original figures.

[50] The respondent mostly challenged trips to the North of the State which the applicant claimed to be business related although some claimed local travel was also challenged. The applicant conceded to having exaggerated her claim for trips to the North by some 6 additional trips. It is also unclear how much of the claimed travel was related to her CPA involvement or were social functions. The applicant’s records were unreliable and she conceded they were a reconstruction as there are no formal records. As an example the same claim for a business related trip of some 380kms was included on each page and her diary, on which she claimed to rely, recorded only 14 trips North. In respect to that she said that sometimes she had to leave on short notice so the diary may not show those trips.

[51] Some travel, claimed to be business related, was for as little as 1.2kms and there were many very short local trips claimed which were not challenged by the respondent. In the absence of any counter claims or challenges to many of the applicant’s claims I accept the applicant’s figures with some reservation but note that the claimed business related travel is an estimate only and can never be otherwise. Further the respondent said that the applicant was very precise in her calendar/diary records.

[52] The applicant testified that she had relied on her calendar and phone records to estimate the business related travel she undertook, she said that there were trips which would not show on either of those records so she had relied on her ‘knowledge’ to add those.  28

[53] During examination the applicant added further trips to the list, deleted a duplicated trip and provided an ‘addendum to travel.’ 29 She conceded that she had claimed 6 or maybe 7 additional 400km trips and it is uncertain as to how many trips she conceded, if any, were taken in other vehicles or with Mr Waller himself.

[54] In cross examination the applicant agreed that her first reconstruction of her claim was exaggerated by claiming some 27 trips to the North of the State when in fact that number was only 21 trips. Further her calendar on which she now relied only shows some 14 trips to the North.

[55] The applicant said “There is a difference between, you know, what I’m compiling based on evidence that, you know – my phone records and my calendar, to try to work out what I’ve done over that previous 18 months. There’s definitely a difference.”  30

[56] It is not clear what component of the travel claimed as business related travel includes travel to and from the applicant’s home as the documents provided suggest that some of the travel claimed as business related could have been during the applicant’s journey to or from work.

[57] Mr Waller testified that the applicant was “…quite good really. She was very precise” at recording appointments in her calendar/diary.  31

[58] Mr Waller said that he gave no direction in respect to the motor vehicle and that it was her vehicle to use 32. It was his evidence that the only direction he gave the applicant in respect to the use of the vehicle was that it would be “Completely unlimited.” 33

[59] He was taken to a number of trips claimed by the applicant as being business related but which he challenged and said that in respect to some of those trips he did not know with any certainty whether she used her vehicle or whether she may have had a lift with someone else.  34

[60] In some cases Mr Waller drove the applicant in his vehicle and recounted four occasions on which he said this happened however he testified that he was not sure how many more times he took his vehicle as “I didn’t keep logbooks.”  35

[61] It was his estimate that the applicant spent about four and a half days each week in the office although there were times when she was required to do some travel around the State.

[62] Mr Waller said that he did not know with any certainty that the applicant had used her vehicle for all of the attendances and meetings found in the schedule provided claiming business related travel and believed various of the claims were incorrect.  36

[63] Mr Waller challenged, amongst other travel claims, the applicant’s claim that travel and luncheons associated with her CPA involvement were business related costs. He said “I mean, she was on the committee or, you know, a member of the CPA. She would always get mail and that coming through and invitations for different venues and functions but…….I wasn’t at liberty to know where and what times or anything like that.”  37

[64] And further he said “She would have to leave to go to certain things in that regard and I didn’t have a problem with it.”  38

[65] And “I wouldn’t be able to put an estimate on it. I mean, she was quite free to come and go to go to those things, I mean, I didn’t have an issue with that at all.”  39

[66] Mr Waller said he estimated that ninety percent of the applicant’s vehicle use would have been for personal use. The applicant claimed that some of her claimed business travel was to see clients, Mr Waller said that it was not her role and she had no direction from him to visit clients.  40

[67] The applicant said in her supplementary statement that she had added some more travel which she claimed was business related. She submitted that “When I obtained employment at the respondent’s place of work I was advised that a company vehicle was to be provided to me. Because I had been supplied this vehicle I decided to sell my Toyota Corolla.”

[68] And further “In the event that I was not provided the company Toyota Alise vehicle I would have retained the Corolla and made use of that for all personal travel.”

[69] This submission seems to address some of the discussion in Karlovic v Australian Municipal, Administrative, Clerical and Services Union  41 (Karlovic), a decision of a Full Bench of the Australian Industrial Relations Commission which was tendered by the applicant.. The circumstances in Karlovic are different to the circumstances in this matter; significantly in Karlovic the applicant contributed a weekly amount towards the private use of the vehicle; he resided in country Victoria and commuted to the city and some of that travel was deemed business travel. In my view Karlovic is not relevant to the issues for consideration in this matter.

[70] The onus rests with the respondent to demonstrate that the value of any personal benefit to the applicant would exceed the threshold.

[71] It would seem from the evidence that the respondent allowed the applicant to perform her duties unfettered by any direction from him. The evidence suggests that there was no supervision or control exercised by the respondent. Further the evidence seems to indicate that the respondent was willing to provide the applicant with whatever she wanted. In respect to the HR Diploma course he said “that’s what she wanted, that’s what happened” in respect to the vehicle he said “I just paid for it and Mrs Roberts picked it up and took it from there…” in respect to the applicant’s involvement with the CPA he said “I mean, she was quite free to come and go to those things, I mean I didn’t have an issue with that at all…”

[72] If the applicant worked outside her specific role and performed functions which the respondent now considers not to be her responsibility it was up to him to confront her and give direction. Prima facie the applicant had free reign to do as she wished. She was given no direction as to the use of the vehicle for personal purposes.

[73] Absent any vehicle log book or proper documentation the specifics of the claims and counter claims as to the purpose of the travel are largely based on the memories of the applicant and the respondent.

[74] The information and calculations provided by both the respondent and the applicant are not reliable.

[75] I therefore adopt the methodology in the Full Bench decision in H.W Fewings v Kunbarllanjnja Community Government Council  42 (Fewings) which held that the most appropriate method of calculating the value of the motor vehicle component of an applicant’s remuneration package was to:

“1. Determine the annual distance travelled by the vehicle in question.
2. Determine the percentage of the annual distance travelled which was for the applicant’s private purposes.
3. Multiply the figures from 1 and 2. This provides the annual distance travelled for private purposes.
4. Estimate the cost per kilometre for a vehicle of the type used. This information can be obtained from the RACV, NRMA or like motoring organisations.
5. Multiply the annual distance travelled for private purposes by the estimated cost per kilometre. The result is the value of the motor vehicle component of the applicant’s remuneration.”

[76] I adopt the above methodology accepting that any determination of the private use of the vehicle can only be an estimate based on challenged and unsupported information.

[77] The appropriate kilometre rate to be applied is that provided by the Royal Automobile Club of Tasmania (RACT) rather than the NSW National Roads and Motorists Association (NRMA) figure of $0.71, as used by the respondent, or the Royal Automobile Club of Victoria (RACV) figure of $0.665 as adopted by the applicant.

[78] The amount provided by the RACT for the Camry Altise is $0.6722 per kilometre.

[79] There are a number of calculations that can be adopted.

[80] The service manual showed that the vehicle had travelled 30,939kms between 1 July 2008 and 13 October, 2009. It was agreed that the applicant took delivery of the vehicle on 23 June, 2008, she therefore had the vehicle for a week prior to commencing work for the respondent. The vehicle showed 26km when the applicant took delivery so the appropriate figure for calculating personal use would be 30,913kms although that figure does not take into account personal use prior to the employment commencing on 1 July, 2008.

[81] In a simple arithmetic calculation the applicant claimed some 10494 kms as business related (albeit I note this figure was challenged and unsubstantiated), deduct that figure from the service manual figure (less 26kms) results in 20419kms as personal travel. The RACT cost per km for the Camry Altise is 0.6722 per km, resulting in a personal benefit of $13,725.65.  43

[82] The respondent assessed personal use at 80% which would result in a value of $16,623.51 44. The applicant assessed her personal use at 65.5%. As a percentage of the 30913 figure that results in 20248kms for personal use for the period of the employment resulting in a personal benefit value of $13,610.7045.

[83] To annualise the figure of 30913, in accord with the Act which refers to the annual rate of earnings and the methodology found in Fewings 46, results in 24007 being the annual kilometres for total travel. Using the respondent’s assessment of 80% would result in a value of $12,910.2747. Adopting the applicant’s assessment of 65.5% results in 15725kms at a value of $10,570.0048.

[84] I reject the calculation by the applicant that the annualised figure results in 19990kms per annum.

[85] I have considered the travel claims of the applicant by reference to her calendar/diary and the many pages of telephone records provided by the respondent. The process would fail to satisfy any forensic examination but the paucity of the information provided by the parties, most of which is challenged, has offered little assistance. I rely on the information found in the calendar/diary of the applicant as the respondent himself testified that the applicant was very precise with her records.

[86] Nonetheless I find that the travel claimed by the applicant is possibly excessive and certainly inaccurate. Many discrepancies were revealed over the course of the matter and much remains unclarified. However I reject the claim by the respondent that the applicant’s personal use can be estimated at 80% usage.

[87] I am of the view that an assessment of some 70% personal use of the vehicle can be justified on the evidence presented.

[88] Adopting the process enunciated in Fewings I conclude that the value of the personal benefit of the motor vehicle to the applicant would be 70% of 24007 = 16805 x 0.6722 per km = $11,296.30.

[89] For the purpose of s.382(b)(iii) of the Act I include an amount of $11,296.30 as being a fair and reasonable estimate of the personal benefit to the applicant for use of the vehicle.

[90] The applicant collected the vehicle prior to commencing work for the respondent and during that period there was some damage to the car which was not covered by warranty. Mr Waller said he just had the vehicle fixed and “sent a cheque off to pay for it…”  49 The applicant said that she offered to pay for the damage but that the respondent rejected the offer. The respondent has included the cost of the repairs as part of its calculation of the value of the personal benefit to the applicant.

[91] The applicant had not commenced work for the respondent at the time of the vehicle damage. The respondent paid for the damage despite the applicant testifying that she offered to pay the repair bill; I am not sure that any personal benefit in an employment relationship can have any value prior to that relationship taking effect. For the purpose of s.382(b)(iii) of the Act I do not include the value of the damage repair in my assessment.

The Mobile Telephone:

[92] The applicant claimed that 50% of her mobile telephone calls were personal whereby the respondent in its final submission claimed that personal use would be closer to 70% of the total telephone charge of $1,881.01.

[93] Mr Waller said that the applicant had ordered two Blackberry (phones) “things with the emails and all the attachments with it and she give one to me and one to herself and I’ve got fat fingers and I, you know, couldn’t operate it properly so I went back to my basic phone….” 50.

[94] Many pages of telephone records were presented which included calls for a number of other mobile telephones. Mr Waller marked those which he considered were not work related but were personal calls, he testified that “because I know the numbers I know whose they are.”  51 He said numbers he “wasn’t sure about I didn’t mark.” 52 He said that “All I did was mark numbers that I knew that belonged to her family, and numbers that weren’t, to my understanding, relevant to work. That’s all I’ve done.” 53

[95] It was his evidence that the applicant organised the telephone plans and “that was her role to organise all that.”  54

[96] The applicant testified that “….I was expected to receive and make if necessary calls out of hours. That was part of – if the business was working out of hours that’s – I would do that as well.”  55

[97] She said there had been some discussion about another employee who was not contactable on the mobile phone on weekends and out of hours “so it was quite clear to me that I should always be contactable on my phone and if I wasn’t then that could create issues for myself…..”  56

[98] It was conceded by Mr Waller that he did make contact with the applicant out of hours as he said the business was “a seven day a week, 24 hour day service.” 57 Likewise he said the applicant would call him out of hours. He testified that her mobile phone was problematic and used to cut out at times and the records show a number of calls to the same number at the same time or made within a minute of each other. In attempting to assess the mobile phone personal use adopting the method used by Mr Waller it is unclear whether these are multiple calls or single calls but in many cases they are numbers marked by Mr Waller as being personal calls. It may be that this reflects his evidence that the applicant’s phone was problematic.

[99] The applicant agreed that her calls were a mixture of private and business as some family members were employed with, or related to, the respondent’s major client 58.

[100] It was submitted by the applicant that there was no additional cost to the respondent due to the telephone plan in place when she made calls to other parties on a Telstra mobile plan.  59 However she agreed that there was a nominal monthly charge for the telephone plans of maybe $50 per month.

[101] The applicant purchased and negotiated the type of telephone and plans which she arranged for herself and for the respondent. It was the unchallenged evidence of Mr Waller that the mobile phone she arranged for him was unsuitable and he went back to using his previous phone. Further the submission that the applicant would not have used her phone so frequently had she been aware that the phone plan, which provided that calls to other Telstra numbers would be free, did not come into effect until 24 September 2008, has to be considered with the unchallenged evidence that the applicant was responsible for and arranged the purchase and service plans for the mobile phones.

[102] The evidence provided little assistance in an assessment of the personal use of the mobile phone, it was agreed that the applicant had family and friends who were associated with the respondent’s major client so calls to the numbers marked by the respondent as family may well have discussed business matters albeit the respondent considered it unlikely. He conceded that at least one of the numbers in the record he had “guessed” was a personal call.

[103] Despite the evidence of the respondent that it was not the role of the applicant to have any dealings with clients it seems that she did so and it appears she was never told she was acting outside her authority. He even agreed that the applicant took on those roles in furtherance of the business. 60.

[104] Taking into account the evidence of the applicant that many calls were personal as well as business and the evidence of the respondent that he did not really know what calls the applicant made I accept the 50% assessment of the applicant in the absence of any other credible information.

[105] For the purposes of s.382(2)(iii) of the Act I assess the value of personal benefit of the mobile phone as being $940.50.

[106] The respondent has no records to challenge the numerous claims of the applicant and failed to present anything in the alternative. Mr Waller relied almost entirely on his memory but said on a number of occasions that he was not aware of what the applicant was doing and that whatever she did was “not a problem” or “was not an issue” for him. It was the respondent’s evidence that he gave no direction in respect to use of the mobile phone.

[107] It is clear that the respondent wanted to employ the applicant to run the administration side of his business and was willing to provide anything that she advised him was needed to perform her duties.

[108] Pursuant to s.382(b)(iii) of the Act the following is the figure I have assessed as being the personal benefit to the applicant of the non-pecuniary benefits of her salary package:

Salary 90,000.00
Superannuation 5,400.00
Motor vehicle 11,296.30
Telephone 940.50

$107,636.80

[109] Having taken all matters into consideration I find that the annual rate of earnings is below the high income threshold. The application for jurisdiction is dismissed and the substantive application will be listed for conciliation in Hobart at 2.15pm on Monday 10 May, 2010...

DEPUTY PRESIDENT

Appearances:

B Cassidy of Page Seager for the applicant

T Cox of Malthouse Chambers for the respondent

Hearing details:

2010

Hobart

29 January

Final written submissions:

Applicant, 12 February 2010

Respondent 12 February 2010

 1   [Exhibit R1, tab 3]

 2   [PN238]

 3   [PN465]

 4   [PN847]

 5   [PN217]

 6   [PN850]

 7   [PN221]

 8   [PN217]

 9   [PN907]

 10   [PN230]

 11   [PN231]

 12   [PN409]

 13   [PN414]

 14   [PN428]

 15   [PN936]

 16   [PN442]

 17   [PN368]

 18   [PN230]

 19   [PN436]

 20   [PN338]

 21   [PN344/5]

 22   [Exhibit R1, tab 2]

 23   [PN567]

 24   [PN843]

 25   [PN942]

 26   [PN1034]

 27   [Exhibit A3, para 6]

 28   [PN937]

 29   [PN 892]

 30   [PBN968]

 31   [PN248]

 32   [PN379]

 33   [PN378]

 34   [PN381]

 35   [PN303]

 36   [PN381]

 37   [PN287]

 38   [PN291]

 39   [PN292]

 40   [PN737]

 41   [Print PR931531]

 42   [Print Q0675]

 43   [20419 x 0.6722]

 44   [24730 x 0.6722]

 45   [20248 x 0.6722]

 46   [30913 ÷ 470 x 365 = 24007]

 47   [19206 x 0.6722]

 48   [15725 x 0.6722]

 49   [PN250]

 50   [PN228]

 51   [PN358]

 52   [PN361]

 53   [PN726]

 54   [PN362]

 55   [PN922]

 56   [PN923]

 57   [PN576]

 58   [PN927]

 59   [PN935]

 60   [PN742]

Printed by authority of the Commonwealth Government Printer

<Price code C, PR996664>