Ms Tracey Braithwaite v Gallery Building Group

[2014] FWC 9022

[2014] FWC 9022

FAIR WORK COMMISSION

DECISION

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

Ms Tracey Braithwaite
v
Gallery Building Group
(U2014/8786)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 16 DECEMBER 2014

Application for relief from unfair dismissal.

[1] I heard this application in Brisbane on 12 November 2014. Ms Braithwaite was represented by her husband, Mr Lycett, and Mr Barclay appeared for the respondent.

[2] The respondent objected to the jurisdiction of the Fair Work Commission (Commission) on the basis that the applicant earned more than the higher income threshold at the date of termination of her employment. This was disputed.

[3] Ms Braithwaite submitted that the respondent required that she enter into a new contract on 6 May 2014 and that, pursuant to that new contract, her income was below the high income threshold. Any commissions to be paid pursuant to that new contract were not able to be determined in advance. She was therefore entitled to access the jurisdiction of the Commission.

Background

[4] The higher income threshold at the date of termination of Ms Braithwaite's employment was $133,000.

[5] The respondent's objection is set out below:

“The Respondent objects to the Application for Unfair Dismissal Remedy and seeks the dismissal of the application on the following ground(s):

1. The applicant earned more than the high income threshold (currently $133,000 per annum).

The applicant commenced employment with Gallery Building Group in February 2013. Her remuneration in this role was a retainer against sales of $100,000 per annum with $2,000 payable per sale.

The role was made redundant on 5th May 2014 and the applicant was offered a redundancy package totalling $160,500 for a period of 11 months of the 2013/2014 Financial Year, which equates to approximately $175,000 per annum.

The applicant was offered and accepted an alternative role and signed a new Employment Agreement commencing on 6th May 2014 with the following conditions:

• $80,000 per annum salary



• $2,000 per home sale or another amount as agreed between the parties payable in 2 stages -

$1,000 when slab payment is received from the client and $1,000 when frame payment is received from the client.

• Entitlement to commission payments starting from the 51st sale in each year. The yearly calculation is based on the commencement date and the 12 months anniversary from that date forward.



• Sales Budget of minimum 10 unconditional contracts per month.

In meeting the Conditions of Employment this would deliver the applicant with an annual income of:

• Salary of $80,000 plus



• 70 sales x $2,000 = $140,000



• TOTAL $220,000 per annum.”

[6] Mr Barclay concedes that he owes Ms Braithwaite a considerable amount of money from commissions earned prior to her entry into the new contract terms. However, I have to consider the applicant’s income at the date of termination of employment.

[7] Setting aside what Ms Braithwaite's previous conditions of employment were, it was common ground that Ms Braithwaite’s income at the date of termination of employment was as set out in the respondent's objection. She was entitled to a base salary of $80,000 and, if she met her sales target of 70 sales, possibly another $140,000.

[8] The key issue is that none of the commission that Ms Braithwaite may become entitled to when meeting that sales target of 70 homes can be determined in advance. It cannot be known how many homes she may contract for. The commission cannot be calculated and cannot therefore be determined in advance.

[9] On the basis of the material before me I am satisfied that Ms Braithwaite did not earn beyond the high income threshold at the date of termination of employment.

SENIOR DEPUTY PRESIDENT

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