Unfair dismissal and part time employees

Where a part time employee earns a pro rata proportion of what would otherwise be earnings which exceed the high income threshold under the Fair Work Act it does not follow that the employee’s rate of earnings exceed the high income threshold if in fact the employee only works part time.

“Appreciative of the rules of statutory interpretation, 15 and having considered the phrase ‘annual rate of earnings’ as referred to in s 382(b)(iii), the relevant authorities that have considered the phrase and the words used within that phrase, I simply cannot read into that section a requirement to convert Ms Florenca’s earnings into that which she would have earned should she have worked on a full-time basis. Further, it is not apparent that the ‘manufactured’ amount of full-time equivalent earnings should thereafter be used for the purpose of determining whether Ms Florenca’s annual rate of earnings (and such other amounts as referred to in s 382(b)(iii)) were less than the high income threshold.”

Florenca v Industrial Foundation For Accident Prevention T/A IFAP (2019) FWC 144 delivered 15 January 2019 per Beaumont DP