Tony Muhtari v ACI Operations Pty Ltd T/A O-I Melbourne
[2014] FWC 7608
•29 OCTOBER 2014
| [2014] FWC 7608 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tony Muhtari
v
ACI Operations Pty Ltd T/A O-I Melbourne
(U2014/11941)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 29 OCTOBER 2014 |
Application for relief from unfair dismissal.
[1] Mr Jeton (Tony) Muhtari alleges that the termination of his employment by ACI Operations Pty Ltd was unfair.
[2] ACI objected to Mr Muhtari’s application because it alleged that Mr Muhtari was not protected from unfair dismissal as his income exceeded the high income threshold.
[3] It was not disputed that Mr Muhtari’s remuneration comprised $111,167 as salary, $21,000 motor vehicle benefit plus 10.25% superannuation. In accordance with the Fair Work Act 2009,ACI submitted that the 1% superannuation contribution paid over and above that required by law counted towards Mr Muhtari’s annual earnings and therefore it contended that his remuneration exceeded the high income threshold by $278.67.
[4] The issues to be determined are as follows:
1. Did the Manufacturing and Associated Industries and Occupations Award 2010 1 cover Mr Muhtari?
2. Should the additional 1% superannuation be included in the calculation?
3. Did Mr Muhtari use his car for work related purposes and if so, how should the value of that use be calculated?
Was Mr Muhtari covered by the Award?
[5] It is not disputed that Mr Muhtari was employed, at the date of his dismissal, as a Shift Manager. It was also not disputed that the Award does not cover employees engaged in managerial roles. 2
[6] It was not disputed that in early 2013 Mr Muhtari’s role changed. Mr Muhtari had previously been rostered to one specific shift of glassworkers and these employees reported directly to him 3. As a result of the change, Mr Muhtari worked across afternoon and night shifts, and worked 12 hour day and night shifts on the weekends4 and he no longer had any direct reports.
[7] It was not disputed that Shift Managers were responsible on those shifts for the plant operation and the employees on those shifts. The Shift Managers were responsible for health & safety; breakdowns; people; defects; organising support as required; plant performance; and emergencies. 5
[8] As a result of the changes in reporting lines, Shift Managers no longer approved employees’ annual leave requests, except for single day annual leave requests when the Shift Manager on duty could approve the leave. 6
[9] At ACI, each line has a line leader who is normally a glassworker classified at G7. 7 A line leader’s role is to “oversee, instruct his operator, liaise with the manager.”8 In addition, there are line managers called FMUs who are in charge of a line for 24 hours, seven days per week.9 The FMU however is a day shift position.10 Shift Managers reported to the Integrated Systems and Risk Manager who reported to the Plant Manager (the UPM). At the same level as Shift Managers were the quality manager, environmental manager and OH&S manager.
Muhtari’s evidence
[10] Mr Muhtari said that after the changes were introduced in early 2013 he was no longer responsible for planning and rostering. 11
[11] Shift Managers were no longer responsible for giving verbal or written warnings to employees. Should an incident occur they were to pass on relevant information to the FMU Line Manager.
[12] Mr Muhtari also said he was no longer required to “undertake “one on ones” with the glassworkers, which had involved chatting with them about their strengths and weaknesses and seeking feedback about how things were going at work, areas where they might require assistance and things could be fixed or improved”. 12
[13] Mr Muhtari said that he “no longer had any real ownership of the production process, or input into decision making processes about the production process.” 13
[14] His reporting line changed and he no longer reported directly to the Manufacturing Manager. 14
[15] He also said he was bypassed in communication and decision making. 15 He said he was “no longer responsible for identifying the training needs of glassworkers or organising determined/organised training needs/development.”16
[16] He said he was given more duties relating to “near-misses, safety walks/talks and updating attendance records.” 17
[17] Mr Muhtari said that he also lost responsibility for the allocation of work to employees on the shift and that became the responsibility of line managers. 18 Whilst he can move people around on the shift, for example if there was an absence or injury, normally he would stick to the work allocation given to him by the line managers.19
[18] Mr Muhtari gave evidence that his duties consisted of:
a. Attending handover meetings with staff and management representatives of other O-I departments including FMU, Engineering, Manufacturing, Safety and Plant Management to review the actions set by the previous shift; discuss any outstanding actions; and discuss issues relating to safety, production, quarantine and breakdowns.
b. Checking the attendance of glassworkers in my department and updating attendance records.
c. Supervising and coordinating the work of maintenance tradespeople, which involved checking which jobs they had done, which jobs they were working on, whether they were doing the job safely and in accordance with SOPs, and advising which job they should attend to next.
d. Recording and reporting breakdown jobs and quality concerns.
e. Monitoring the production information console (“PIC”) to identify any quality or efficiency issues in the production process. If I identified any issues, I would respond by contacting the relevant Line Leader to check whether they are aware of issue and to offer support such as identifying the cause, offering suggestions to how to resolve issue or organising assistance from a glassworker of tradesperson where necessary.
f. Monitoring my department for hazards, housekeeping issues and potential near misses. If anything was identified, I could respond by allocating a glassworker who was present to fix, clean or safeguard the problem, but I did not have the authority to bring in an additional worker or, or to raise or sign off on purchase orders for outside contractors or materials needed to fix the issue. If this was needed, I would enter the issue into a safety reporting database, which would notify the person with that authority, such as the Cold End Manager, FMU Line Manager, Unit Plant Manager, Engineering Supervisor or Safety and Quality Manager.
g. Visiting other departments such at the cold end, audit and re-sort to look for signs of production problems.
h. Supervising glassworkers in my department to observe whether they were entering reports, responding properly to actions for losses and defects, checking the integrity of their line, and checking for defects. If a glassworker was not doing something properly, I would respond by asking what they were doing, why they were doing it that way and providing guidance as to the proper way to do it, either through verbal recommendations or provision of the relevant standard operating procedure (“SOP”). I had been told by Ms Zammit and O-I’s Plant Manager, Mr David Payne, that I was not, permitted not discipline anyone. If the issue was recurring or important, I would enter it into a spreadsheet which could be accessed by those with disciplinary authority.
i. Taking and responding to calls from glassworkers who needed assistance or guidance regarding production processes.
j. Conducting “safety walk/talks”, which involved asking a glassworker about safety issues, assessing and reporting their responses.
k. Completing paperwork in relation to critical defects, line inspections, critical checks and auto loop samples.
l. Taking calls from absent glassworkers and organising replacement glassworkers as necessary, up to the usual manning levels. If any additional labour was needed beyond the usual manning levels, I was required to obtain authorisation from the Unit Plant Manager. 20
[19] In addition, Mr Muhtari gave evidence that he was “regularly required to engage in “hands on” work.” 21
[20] In cross examination, Mr Muhtari accepted that if an employee on Mr Muhtari’s shift needed a decision or assistance about his or her annual leave and needed it dealt with immediately, he or she would approach Mr Muhtari. 22
[21] Mr Muhtari accepted that when he was on duty he was the most senior manager on shift. 23
[22] Mr Muhtari accepted that he was responsible for production. 24 If a machine broke down he had to make decisions about what would happen.25
[23] If there was a quality issue the auditor would investigate and report back to Mr Muhtari 26 and if a decision needed to be made he would make it.27
[24] While Mr Muhtari was not able to discipline employees if an employee was habitually late for work for example it was his responsibility to speak to the employee. 28
[25] If conduct was an issue and action needed to be taken immediately it was his responsibility. 29 Mr Muhtari was reluctant to admit that he could stand employees down30 but he did accept that if an employee was unfit for work he could send the employee home.
[26] It was his responsibility to make sure “people were where they needed to be, doing the job that they were paid to perform.” 31
[27] At the end of his shift, Mr Muhtari would hand over either to the next Shift Manager or to the plant manager. 32 Prior to the change in 2013, Mr Muhtari attended managers meetings but after the change the meetings no longer occurred.33
[28] Mr Muhtari accepted that he attended the managers’ planning meeting. 34 Some glassworkers also attended this meeting. Mr Muhtari gave evidence that it was the senior managers who made the decisions but that he contributed to the decision making.35
[29] Mr Muhtari attended management training courses. 36
[30] Mr Muhtari was also able to enter information about employees into a data base which only Shift Managers, line managers and plant managers had authorised access to. 37
[31] Further, Mr Muhtari accepted, that as the person in charge of the plant, he was able to initiate quality investigations. 38
[32] Mr Muhtari also accepted that he decided the priority to be given to maintenance work. 39 However he gave evidence that there was at times confusion about this when the line managers stayed back and then maintenance employees may be directed by them to perform work and he would not be informed.40
[33] Mr Muhtari gave evidence that he had not seen the position description dated 18 February 2013 and he continued to work to his original position description. 41 It was his evidence that that position description described his job.42
[34] Mr Muhtari accepted that he had seen the document headed Shift Manager Structure 43 and agreed that he had the responsibilities set out in that document.44
[35] Mr Muhtari said that in addition to losing responsibility for employee performance and leave, as Shift Manager he no longer had “them work the way that we wanted them to work, presenting team briefs, collecting data for our shifts to present the team briefs, monitoring and capturing performance of certain employees, or employees (indistinct) my shift.” 45
[36] Mr Muhtari said that he spent 50% of his time supervising and coordinating the work of glassworkers and maintenance workers. 46
[37] It was put to Mr Muhtari that he did monitor and capture data about employees and enter it into the data base and he agreed. 47 He also accepted that he had to ensure that all reports and data were finalised at the end of his shifts.48
[38] Mr Muhtari gave evidence about his role when things went wrong. On a particularly hot day they were having problems getting sufficient employees to come in and there had been breakdowns. The handover meeting did not take place, and when he came on duty he didn’t know what was broken down and what needed to be done first. He said it was his responsibility to “take over and take control.” 49
[39] Mr Muhtari accepted that in normal circumstances it was his responsibility for making sure that things worked on his shift, and if things went wrong, he was responsible for getting things working. 50
[40] While he would, at handover be given a list of work that had been allocated to the maintenance workers, it was his role to prioritise that work and he determined what work was done and in what order. 51
[41] In re-examination, Mr Muhtari gave evidence that he had the authority to call in additional resources 52 including external resources.53 If they lacked materials he could contact the purchasing officer to organise the supply of the material.54
[42] Mr Muhtari explained that as some of the managers’ meetings were held during the day he was not provided with an opportunity to have input into these meetings. 55
[43] The Award provides at clause 4 that it applies to employers of employees in the manufacturing and associated industries and occupations who are covered by the classifications in this award and those employees.
[44] There is no dispute between the parties that if Mr Muhtari was employed within the scope of a classification in the Award, he would be covered by the Award.
[45] Mr Muhtari submitted that his work was within the supervisor/trainer/coordinator vocational field which is defined as follows:
“(d) supervisor/trainer/coordinator field which includes employees who are or who are mainly:
(i) responsible for the work of other employees and/or the provision of on-the-job training including coordination and/or technical guidance; or
(ii) responsible for the supervision and/or training of other supervisors or trainers; or
(iii) responsible primarily for the exercise of technical skills up to the level of their skill and competence and who are additionally involved in the supervision/training of other employees.”
[46] Mr Muhtari submitted that he should have been classified as a Supervisor/Trainer/Coordinator Level 1 which is defined as follows:
“B.3.2 Supervisor/Trainer/Coordinator
(a) Supervisor/Trainer/Coordinator—Level I
(i) A Supervisor/Trainer/Coordinator—Level I is an employee who is responsible for the work of other employees and/or provision of structured on-the-job training. Such an employee has completed a qualification at AQF III level or above, of which at least one third of the competencies are related to supervision/training, or equivalent.
(ii) Notwithstanding the above definition an employee who is mainly engaged to perform work supervising or coordinating the work of other employees and who has sufficient additional training beyond that of those coordinated or supervised so as to enable the employee to perform work within the scope of this level must be classified at this level.”
ACI’s evidence
[47] Mr Muhtari’s job description at the time of his dismissal described his responsibilities as follows:
“Co-ordinate the efficient operation of the Shift by determining shift maintenance breakdown priorities and working closely with each of the UPM’s and FMU Managers to coordinate back shift and W/E operations and appropriate overtime/coverage requirements.
As the responsible Staff person on site during back / shifts / weekends, monitor production performance and take/arrange corrective action, if necessary after contact with the appropriate FMU Manager.” 56
His major accountabilities were:
- Ensure that all Company policy, legislative, safety and quality required standards are implemented as appropriate and adhered to by all employees on the shift.
- Contribute to the safety initiative for the shift through safety talks, hazard identification/risk assessment, and accident investigation, development of safe operating procedures, identification and implementation of improved equipment and methods and through personal role modelling of exemplary OH&S standards.
- Ensure the completion of all required shift production reporting.
- Initial coordination of any emergency response situation.
- Quality production output is achieved, monitor performance and determine priority issues and where necessary liaise with the FMU Manager for corrective action to be taken as required on back and weekend shifts.
- Participate in meetings relating to production, quality, safety, relevant consultative forums and other operational matters as determined by the UPMs.
- Work closely with each of the UPMs and FMU Managers with particular emphasis on the monitoring of back shift / weekend line performance and any personnel discipline issues.
- Working closely with the relevant UPMs and FMU Managers, monitor the performance and discipline of shift personnel, including timekeeping and absenteeism.
- As the responsible Staff member on back shifts / weekends, the Shift Manager will gather all relevant information and contact the FMU Manager for both verbal and written warnings and has the authority to suspend personnel with pay whilst a matter is further investigated. Where a situation arises that is likely to lead to dismissal, the Human Resources Department must be involved.
- “Determining of priority production / maintenance issues and arranging / taking appropriate action accordingly.
- Ensure all personnel work in a safe manner at all times.”
The key issues/problem solving were:
[48] Ms Karen Zammit, the Human Resources Manager, gave evidence that the change made in 2013 meant that while Shift Managers no longer had “overall responsibility for employees on a particular shift, they did still hold overall responsibility on all the back shifts and they were what we call the plant manager when the plant manager is not there.” 57
[49] She said that in discussions with the Shift Managers held when the change was implemented it was explained to the Shift Managers that “they’re still responsible for the plant after hours....they’re still responsible if something major happens; still responsible for health and safety, breakdowns. They’re still responsible for the people and if people aren’t doing the right thing, they still had to take action. Defects are a big one. Quality is very big for us, organising support and making sure the shifts are adequately manned, the plant performance and in particular emergencies.” 58
[50] It was her evidence that if someone called in sick the Shift Manager would instruct his or her delegate to call people in for overtime as the Shift Manager was responsible for ensuring the shift was fully manned. 59 In an emergency, the Shift Manager decided how resources were allocated.60
[51] In cross examination, Ms Zammit accepted that in addition to no longer being responsible for approving annual leave, or disciplining employees, Shift Managers were no longer responsible for the achievement of production targets. 61
[52] Further it was her evidence that “they’re responsible for the whole plant; for the environment; for the amount of fumes that are emitted; things getting discharged at the drains. They’re responsible for safety of those 25 employees that are on the shift. They’re responsible for meeting targets of production and, if lines go down, for calling relevant managers to come in if required; high degree of responsibility on those back shifts so, no, I would not say that the role’s changed a lot.” 62
[53] In response to the proposition that Mr Muhtari went from making decisions in relation to the planning to being primarily reactive, Ms Zammit said that he was still involved in planning and that was why he was at the planning conference. 63
Were Shift Managers covered by the Award?
[54] The parties accepted that the test used to determine if an employee is covered by an award is the principal purpose test. 64 This requires an examination of the nature of the work and the circumstances in which the employee is employed to do the work.65
[55] I have had regard to Mr Muhtari’s description of his duties, the information provided to Shift Managers about the new structure 66 and his job description. I do not accept that Mr Muhtari had not been provided with a copy of the job description. The decision to change the role was not supported by Shift Managers and meetings were called to work through their concerns. It is inconceivable that the Shift Managers were not given a copy of the new position description. In any event Mr Muhtari gave evidence that the job description that applied to his job, was the one given to him before the changes and that job description gave Shift Managers greater responsibilities.
[56] I do not consider that much turns on the change in the wording of the job description from manage to coordinate. What is critical is, what was the nature of the work and circumstances, in which Mr Muhtari was employed to do the work.
[57] I accept the submissions of Mr Muhtari that using the word manager in a position title does not make the person a manager. I do not however accept the submission that because Mr Muhtari lost his direct reports he was no longer a manager.
[58] I do not accept the submission that Mr Muhtari was a supervisor. Mr Muhtari, whilst on duty, was responsible for the entire plant. On his own evidence he made decisions about the running of the plant. He could call in contractors if needed; he could place orders with the purchasing officer if needed; he could reallocate work as needed and he was responsible for the output of the factory. While he lost some responsibility for the day to day management of employees he did not lose his responsibility, as the most senior manager on site, to run the plant. He had the responsibility to make decisions and the authority to make decisions. He did more than supervise or coordinate the work of other employees. He managed the work and the output of the plant. He prioritised work and was able to reallocate work as he determined. He was able to stand down employees and call in employees to ensure that staffing levels were maintained. This is not the role of a supervisor.
[59] I accept that Mr Muhtari’s responsibilities changed in 2013. Because he worked on afternoon and night shift, as well as weekends, he had a reduced capacity to have input into some decision making and planning and assessment. He no longer had the day to day management of employees’ performance and leave. That did not reduce his role to that of a supervisor.
[60] I accept that Mr Muhtari did some hands on work. However the extent of that work was not detailed. In examination in chief Mr Muhtari was asked about the percentage of this time allocated to particular responsibilities. He did not say that hands on work took up any significant about of his time. 67
[61] That a manager does some hands on work when necessary does not mean he or she ceases to be a manager. More evidence would have been needed to be put before the Commission about the extent of such hands on work before a finding could be made that his hands on work changed the nature of his work.
[62] I do not consider the dictionary definitions of supervisor and manager useful as it is clear that the concepts overlap. These are not terms of art but in an industrial context have particular meanings. Just as supervisors have different responsibilities to leading hands, so to do managers have different responsibilities to supervisors. However, it is really a continuum of responsibilities and where the line is drawn between the different roles is at times difficult to ascertain.
[63] However, in this case it is clear that Mr Muhtari was not principally employed to supervise or coordinate the work of others. Whilst some of his work involved supervision and coordination of employees, Mr Muhtari was principally employed to manage the operation of the plant on the back shifts and as such his position was not covered by the Award.
Did Muhtari earn more than the high income threshold of $133,000?
[64] Section.332 of the Fair Work Act 2009 defines an employee’s earnings as follows:
“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.”
Superannuation
[65] Mr Muhtari’s contract provided that he be paid a 10% superannuation contribution. On 19 July 2013, Ms Zammit sent an email to all staff advising them that due to the increase in the Superannuation Guarantee of .25% from 1 July 2013 that ACI, rather than absorbing that increase, had decided to increase the superannuation contribution paid to staff by 0.25%. 68 Mr Muhtari accepted that he had seen this email.69 Mr Muhtari said he understood from this email that the legislated amount of superannuation contributions was to be increased but that his superannuation was 10%.70 He said that he did not understand that his contribution was to be increased to 10.25%.71 Mr Muhtari said that he was not able to ascertain from his payslips whether his superannuation contributions increased.72
[66] I do not accept the submissions of Mr Muhtari that he did not know that his superannuation contribution was to increase to 10.25%. I find on the evidence that Mr Muhtari was told that his superannuation contribution would increase. It is clear from the words used in the memo that ACI had increased the superannuation contribution for staff by 0.25%. There was no evidence that Mr Muhtari did not receive the benefit of the increase. Mr Muhtari’s annual salary review in April 2014 made it clear that the superannuation component was 10.25%. 73
[67] Mr Muhtari submitted that the only excess superannuation contribution in his contract should be counted. He relied upon the decision of Commissioner Hampton 74 where the parties had originally agreed that the $70,000 package included a $5000 car allowance but when the package increased to $75,000 the employer, without discussion with the employee, increased the car allowance to $10,000. Commissioner Hampton held the parties to terms on which the original contract was formed.
[68] Mr Muhtari submitted that to have regard to this amount would mean that “an employer could obviate an employee’s protection from unfair dismissal merely by paying additional entitlements to or on behalf of the employee without telling them.” 75
[69] That is not what happened here. Mr Muhtari was told that his superannuation was to be increased in 2013; it was increased and he accepted the increase. If find therefore that the additional 1% superannuation contribution should be included in Mr Muhtari’s earnings.
Work related use of the car
[70] Under his contract, Mr Muhtari was entitled to a motor vehicle benefit to the value of $21,000. Mr Muhtari could use the money to enter into a novated lease for a motor vehicle. If the lease costs were less than the motor vehicle benefit, then the salary was increased to reflect the difference. If the lease costs were more than the motor vehicle benefit then the salary was decreased on a salary sacrifice basis to reflect the difference. Alternatively Mr Muhtari could have taken the entire motor vehicle benefit as salary. 76
[71] Mr Muhtari’s work was located at Spotswood but his contract provided that he could be required to work at other locations from time to time within reason. 77
[72] It was submitted by Mr Muhtari that in 2014 he was required to attend a two day course in Melbourne, a one day annual planning conference in Chirnside Park and a one day leadership course in Williamstown. 78 Mr Muhtari also gave evidence of attending some meetings/training in Yarraville and Werribee though there was no evidence about when these events occurred.
[73] Mr Muhtari claimed that using his car to travel to and from these events was work related and the costs of that travel should be deducted from his earnings.
[74] It was submitted that in the past 12 months Mr Muhtari travelled 465.6 kms for work related purposes and that was valued at $651 and his earnings should be reduced by that amount.
[75] I do not accept the submissions that this amount should be deducted from Mr Muhtari’s remuneration. Mr Muhtari was not provided with a car by his employer. The vehicle did not belong to ACI it was leased by Mr Muhtari. He was able to package his salary to include a car. If he had not, he would have received the full benefit of the $21,000. He chose to use some of his motor vehicle benefit to lease a car. Had he not done so and retained the money because, for example, he already had a car, the expenses associated with using his private car for business use may have needed to be reimbursed by his employer but it would not have had the effect of reducing his remuneration. Under ACI’s policy, if Mr Muhtari used his vehicle for work related purposes then he was entitled to be reimbursed for the costs on a distance travelled basis. 79
[76] I therefore find that no deduction should be made from his earnings.
[77] Even if this analysis is wrong, an employee’s costs associated with getting to and from work are not payable by the employer. On a few occasions Mr Muhtari was required to start and finish work at a location other than Spotswood. So much was permitted under his contract. That did not alter the purpose of the journey. Had Mr Muhtari taken the whole of the allowance as money he would still have been required to make his own way to the other locations and the costs associated with doing so were not payable by his employer.
[78] Even if this analysis is wrong, I do not accept Mr Muhtari’s submission that the value of the work related costs should be calculated at 3.1% 80 of the $21,000 motor vehicle benefit. Mr Muhtari did not allocate all of the allowance to the car. He salary sacrificed $6512 for the lease and $6670 to superannuation. He took an additional $7818 as income.81 Accepting Mr Muhtari’s submissions that business use of the car was 3.1%, then 3.1% of $6512 was $201.87.
[79] I do not accept that value to be used should be $15,311.52 82 as that figure is the total amount paid for the car and includes a post tax amount of $8799.96 paid annually by Mr Muhtari for the car. To use this amount would be to disregard the decision of Mr Muhtari to allocate his $21,000 in part to his car, in part to superannuation and in part to wages.
[80] However even if Mr Muhtari is correct, then at the time of his dismissal, his package was worth $118,985 (taxable income) 83 + $15,311.52 (value of the car) + $1111.67 (superannuation) -$474.66 (3.1% of $15,311.52) = $134933.54, which still exceeds the high income threshold.
Conclusion
[81] Mr Muhtari’s income exceeds the high income threshold. As he is not covered by an award or an enterprise agreement, he is not protected from unfair dismissal and therefore his application must be dismissed.
Permission to appear
[82] Ms Zeitz, a legal practitioner, sought permission to appear which was opposed by Mr Muhtari. Mr Muhtari was represented by an industrial officer from The Australian Workers’ Union.
[83] I granted permission to appear because I determined that the matter would be dealt with more efficiently having regard to the complexity of the issues. While Ms Zeitz did not rely upon this to support her application I put the parties on notice that it was relevant to my consideration. 84 These are my reasons:
[84] While the case, as originally understood by ACI, was about what amounts should be included in the calculation of Mr Muhtari’s earnings, in its response to the objection Mr Muhtari submitted that he was covered by the Award. Given the continuum of responsibilities between supervisors and managers, determining whether an award covers a manager is not a simple matter. I considered that it would enable the matter to be dealt with more efficiently to permit ACI to be represented by a lawyer.
[85] In exercising my discretion to grant permission I have had regard to the fact that Mr Muhtari was represented by a relatively experienced industrial officer, albeit not a lawyer. I did not consider that he would be prejudiced by permitting ACI to be represented by a legal practitioner.
DEPUTY PRESIDENT
Appearances:
P. Reilly for the Applicant.
S. Zeitz for the Respondent.
Hearing details:
2014.
Melbourne:
3 and 13 October.
1 [MA000010]
2 Submissions of the Applicant at [59]
3 Exhibit A1 at [19]
4 Exhibit R4
5 Ibid and Transcript PN 678-685
6 Ibid
7 Ibid PN 535
8 Ibid PN 548
9 Ibid PN 550
10 Ibid PN 556
11 Exhibit A1 at [19]
12 Ibid
13 Ibid
14 Ibid
15 Ibid
16 Ibid
17 Ibid
18 Transcript PN 399-401
19 Ibid PN 402
20 Exhibit A1 at [21]
21 Ibid at [23]
22 Transcript PN 508
23 Ibid PN 510
24 Ibid PN 511
25 Ibid PN 512
26 Ibid PN 515-516
27 Ibid PN 516-518
28 Ibid PN 521
29 Ibid PN 522
30 Ibid PN 524
31 Ibid PN 531
32 Ibid PN 570-571
33 Ibid PN 573-574
34 Ibid PN 576
35 Ibid PN 628-629
36 Ibid PN 632-637
37 Ibid PN 580
38 Exhibit R6
39 Transcript PN 591
40 Ibid PN 602
41 Ibid PN 650-654
42 Ibid PN 659, 663
43 Exhibit R4
44 Transcript PN 678-685
45 Ibid PN 688
46 Ibid PN 412-413
47 Ibid PN 691
48 Ibid PN 700
49 Ibid PN 738
50 Ibid PN 750-751,756
51 Ibid PN 933
52 Ibid PN 914
53 Ibid PN 923
54 Ibid
55 Ibid PN 928
56 Exhibit R5
57 Transcript PN 151
58 Ibid PN 155
59 Ibid PN 157
60 Ibid
61 Ibid PN 310
62 Ibid PN 313
63 Ibid PN 314
64 Submissions of the Applicant at [66] and transcript PN 1009
65 Carpenter v Corona Manufacturing Pty Ltd PR925731
66 Exhibit R4
67 Transcript PN 410-418
68 Exhibit R2
69 Transcript PN 433
70 Ibid
71 Ibid PN 825
72 Ibid PN 830-833
73 Exhibit R3
74 Owens v Allied Express Transport Pty Ltd[2011] FWA 1058 at [23]-[26]
75 Submissions of Mr Muhtari at [51]
76 Exhibit A1 at annexure A-1
77 Ibid
78 Ibid at [24-]-[25]
79 Exhibit R1 at KZ3
80 Submissions of the Applicant at [39]
81 Exhibit R3
82 Transcript PN 1124
83 Exhibit R3 and Exhibit R1 at attachment KZ-5
84 Transcript PN 39-41
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