Appeal against decision ([2017] FWC 3228) of Commissioner Ryan at Melbourne on 7 August 2017 in matter number U2017/3288 – permission to appeal granted – appellable error established – appeal upheld – decision quashed – question whether employee earned more than the high income threshold remitted to another member.

Introduction

[1] Mr Andrew Bernadou was employed at Sam Technology Engineers Pty Ltd (STE) as a Business Development Manager from 6 March 2014 until 10 March 2017. Mr Bernadou has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). STE has raised three jurisdictional objections, including that Mr Bernadou earned more than the $138,900.00 high income threshold applicable at the time. This question of jurisdiction fell for consideration by Commissioner Ryan.

[2] The Commissioner accepted Mr Bernadou’s salary was $125,000.00 and STE’s submission that 60% of the usage of Mr Bernadou’s car was for private purposes, such that $12,000.00 of his $20,000.00 car allowance had been for personal use. He added this $12,000.00 to Mr Bernadou’s salary before adding a further $1,530.00, having accepted STE’s submission that a 50% private usage component should be applied for laptop and telephone reimbursements and concluded that the total ($138,500.00) was below the high income threshold of $138,900.00. Commissioner Ryan then proceeded to dismiss STE’s jurisdictional objection that Mr Bernadou earned more than the high income threshold and returned the unfair dismissal application to the general unfair dismissal list for determination of the remaining jurisdictional objections and the merits.

[3] On 15 August 2017, Sam Technology Engineers Pty Ltd (STE) lodged an appeal, for which permission is necessary, against the decision of Commissioner Ryan (Decision). 1 On 18 August 2017, Deputy President Clancy ordered that the operation of the whole of the Decision and the directions which had been issued on 10 August 2017 be stayed, pending the determination of the appeal.

[4] On 6 September 2017, we granted STE permission to appeal, principally for two reasons:

• We were persuaded that there exists a disparity of approaches in decisions of individual members of the Commission, such as to warrant some clarity being delivered by a consideration of the issues by a Full Bench. This appeal squarely raises the proper treatment of motor vehicle allowances for the purposes of determining whether and what amounts form part of a person's earnings and whether, as a consequence, they are outside or inside the jurisdiction of the Commission because of the high income threshold; and

• We were persuaded that there was at least an arguable case of error in the decision at first instance, in as much as the Commissioner did not appear to turn his mind to the relevant question of deciding whether Mr Bernadou's annual rate of earnings…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sam Technology Engineers Pty Ltd v Bernadou

Details

AGLC: Sam Technology Engineers Pty Ltd v Bernadou [2018] FWCFB 1767
Case: [2018] FWCFB 1767
Decision Date: 27 MARCH 2018

CaseChat Overview and Summary

The appeal in Sam Technology Engineers Pty Ltd v Bernadou was brought by the employer against a decision of the Fair Work Commission. The employer sought to challenge the Commission’s determination that it had contravened a direction issued under section 320 of the Fair Work Act 2009 by terminating the employment of the employee, Mr Bernadou, without just cause or reason. The dispute centred on whether the employee’s termination was valid given the employer’s failure to provide the required 4 weeks’ notice of termination.

The legal issues before the court were whether the employer had established an error of law in the primary decision, and if so, whether this error was significant enough to warrant the quashing of the Commission’s decision. Specifically, the court had to determine if the Commission correctly assessed whether the employee's earnings exceeded the high income threshold, which would have exempted the employer from providing the 4 weeks' notice of termination. Additionally, the court had to consider if the employer’s appeal was within the time limits stipulated by the Act.

The court found that the Commission had erred in its interpretation of the high income threshold, as it had failed to consider the correct method of calculating the employee's average weekly earnings. This error was deemed to be an appellable one, as it affected the substantive fairness of the decision. The court held that the employer had demonstrated a clear error of law in the Commission’s determination, which was significant enough to warrant the quashing of the original decision. The matter was remitted to another member of the Commission for re-determination in light of the correct calculation of the employee’s earnings.

Orders