This extract from an unfair dismissal decision sets out the principles used to value perks for the purposes of the high income threshold and thus protection from unfair dismissal.
“As such, I am required to determine and calculate the private benefit derived by Mr
Afzal from the car allowance by applying the principle explained by the Full Bench at [72](b)
in Bernadou. Prior to the commencement of the hearing, my Associate sent both parties a copy
of Bernadou, which I note was also relied upon by the Respondent in its written submissions
filed in advance of the hearing. At the commencement of the hearing, I raised with the parties
that I may be required to calculate the private benefit of the car allowance in accordance with
that principle. After raising that issue, and other relevant issues, with the parties, I adjourned
the hearing for approximately 30 minutes to enable the parties to consider that issue and the
other issues that I had raised with the parties. In closing submissions at the hearing, I specifically
invited the self-represented Mr Afzal to address me as to how I should deal with the car
allowance. In response, Mr Afzal conceded that he was above the high income threshold. Mr
Afzal did not take up the opportunity to given to him to persuade me that on application of the
principle explained by the Full Bench at [72](b) in Bernadou that the private benefit would
place him below the high income threshold. Based upon Mr Afzal’s evidence that he used his
car on a “very infrequent basis” for business purposes, and Mr Afzal’s concession that he was
above the high income threshold, I find that the private benefit derived by Mr Afzal from the
car allowance is an amount, albeit unquantifiable, that comfortably exceeds 50% of the car
allowance paid to Mr Afzal. That finding means Mr Afzal’s annual rate of earnings is more
than the high income threshold.
Conclusion
[75]
For the reasons explained above, I find that a modern award did not cover Mr Afzal at
time of his dismissal. Moreover, an enterprise agreement did not apply to Mr Afzal in relation
to his employment. Finally, that the sum of Mr Afzal’s annual rate of earnings is more than the
high income threshold. As such, none of the matters specified in section 382(b) of the FW Act
apply. It follows that Mr Afzal is not a person protected from unfair dismissal and I must dismiss
Mr Afzal’s unfair dismissal application. Given that finding, there is no utility in determining
the OOT Objection / EOT. An order, which dismisses Mr Afzal’s unfair dismissal application,
will be issued separately to this decision. “
Callow v M People (QLD) Pty Ltd [2025] FWC 2031 delivered 15 July 2025 per Spencer C