“Jurisdictional objections
[11] AGE submitted that Mr Mathew’s remuneration at the time of his dismissal was
$186,475, because this was the full-time equivalent of his salary. The F3 filed by AGE stated that Mr Mathew’s gross pay per week at the time of dismissal was $2,510.24, for which he worked 26.6 hours per week, which equates to $130,520 per annum. AGE contended, in effect, that this figure had to be divided by 0.7, because 26.6 hours is 0.7 of a 38 hour full-time job. I reject this submission.
[12] A person is protected from unfair dismissal if they have completed the minimum period of employment (which Mr Mathew has done) and any one or more of the following applies: the person is covered by a modern award; an enterprise agreement applies to the person’s employment; or the person’s ‘annual rate of earnings’ is less than the high income threshold, which at the time of Mr Mathew’s dismissal was $175,000 (see s 382). Mr Mathew’s annual rate of remuneration was $130,520. One does not increase this amount to derive a full-time equivalent figure. Section 382 says nothing about any such calculation. It is concerned with the rate of earnings. ‘Earnings’ is defined in s 332. It includes wages and various other amounts. It makes no reference to the number of hours worked. There is simply no basis in s 382 or any other provisions of the Act to extrapolate a requirement to ascertain a ‘full-time equivalent’ rate of earnings. Other members of the Commission have reached the same conclusion (see Florenca v Industrial Foundation for Accident Prevention [2019] FWC 144 at [29]-[33]).
[13] AGE also contended that, for various reasons, the 2024 contract was invalid, and that this meant that Mr Mathew was not an employee. This is misconceived. Even if the validity of the 2024 contract were impugned in some way, this would not have the consequence that Mr Mathew was never employed by AGE. There would be an unwritten contract of employment, with terms implied by law and fact in the usual way. It is plain that Mr Mathew was an employee of AGE. He performed work as an employee, and was treated and paid as such.
[14] It is unnecessary to consider whether, as the 2024 contract stated, Mr Mathew was covered by the Higher Education Industry – General Staff Award 2020. This question is irrelevant, because his annual rate of earnings was below the high income threshold. I find that Mr Mathew was a person protected from unfair dismissal as defined in s 382.
[15] As to the second jurisdictional objection, I find that the dismissal was not consistent with the Code. The first limb of the Code concerns summary dismissal and is not relevant. The second limb is potentially of relevance but was not complied with. It requires that the employer ‘give the employee a reason why he or she is at risk of being dismissed’ and that the employee ‘be warned verbally or preferably in writing that he or she risks being dismissed if there is no improvement.’ In addition, the second limb of the Code requires that the employer provide the employee with an ‘opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem’. It is clear from the evidence that these things did not occur. In particular, the performance concerns set out in Mr Whateley’s email of 7 May 2025 had not previously been raised with him.”
Mathew v Australian Guild Of Education Pty Ltd [2025] FWC 3760 delivered 9 December 2025 per Colman DP