Unfair dismissal; the high income threshold explained

This is a very useful decision of the Fair Work Commission dealing with how income is calculated for the purposes of the high income threshold and the issue of protection from unfair dismissal.

“Application for an unfair dismissal remedy – High income threshold

 

1        Issue and outcome

 

[1]      Mr Craig Daniel Blyth (the Applicant) has made an application under s 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy.  The Applicant is a former employee of Remondis Australia Pty Ltd (the Respondent), having worked there as its Finance Manager during the period of 17 January 2022 to 8 March 2024.  At the time of the Applicant’s dismissal the high income threshold was $167,500.00, and the Applicant received an annual remuneration package amounting to $171,942.00.  The Applicant’s remuneration package comprised an annual salary of $150,072.00 and a vehicle allowance of $21,870.00 per annum.  The Respondent raised a jurisdictional objection to the application, arguing that the Applicant is not a person protected from unfair dismissal within the terms of s 382 of the Act, because he enjoyed annual earnings above the high income threshold, he was not covered by a modern award, and an enterprise agreement did not apply to his employment.

 

[2]      In response to the objection, the Applicant contends he was paid below the high income threshold of $167,500.00.  The Applicant submits that whilst his salary is not in dispute, he attributes $5,377.87 of his vehicle allowance to work-related travel, therefore resulting in his total earnings amounting to $166,564.13, which is less than the high income threshold.

 

[3]      It was not disputed, and I am satisfied, that the Applicant had served the minimum employment period and he was not covered by a modern award and an enterprise agreement did not apply to him in his employment.1  Therefore, the issue that fell for determination was whether his annual rate of earnings was less than the high income threshold.

 

[4]      If the Applicant establishes this element, or rather, the Respondent is unable to sustain its argument that the Applicant’s earnings were not less than the high income threshold, the Respondent’s objection will be dismissed.

 

[5]      Briefly stated, I have found the Applicant’s earnings were not less than the high income threshold and therefore the jurisdictional objection must be upheld.  As the Applicant is not a person protected from unfair dismissal, his application is dismissed.  Accordingly, an Order2 to this effect issues concurrently with this decision.

 

2        Background

 

[6]      The broader context of the matter was set out in the evidence of the Applicant and the Respondent’s witnesses:

 

  1. a) Mr Christopher Gusenzow, General Manager of the Respondent;
  2. b) Ms Julie Smith, Operations Manager – Perth MRFs, responsible for the Canning

Vale and Osbourne Park facilities; and

  1. c) Mr Stephen Tunbridge, Manager Industrial Services – responsible for the management of the Respondent’s Henderson operation.

 

[7]      It is observed that the Respondent’s witnesses were not required by the Applicant for cross examination, and the Respondent only sought to clarify two points with the Applicant regarding his submissions.

 

[8]      The Applicant was offered the permanent full-time position of Commercial Financial Manager with the Respondent on 14 January 2022, reporting to Mr Gusenzow.3  The Applicant accepted the offer on 17 January 2022, and from all accounts appears to have commenced work with the Respondent on that same date.4

 

[9]      At clause 4.8 of Schedule 1 of the Applicant’s employment contract, he was provided with a vehicle allowance:

 

Level Three (3) in line with the REMONDIS Australia Light Vehicle & Usage Policy & REMONDIS International GmbH Policy No. 10/A/2020 Car Guidelines as varied from time to time.

 

Please note, temporary car allowance payment will be given until a vehicle is available (the temporary car allowance will not exceed six (6) months from the start date (and will not exceed $21,870 (paid pro rata per month) gross per annum.

 

As soon as a vehicle is available, your car allowance will be removed and further payments ceased and you will be provided with a Fully Maintained Company Vehicle (FMCV).

 

[10]    The Light Vehicle & Usage Policy (the Policy), as referred to in paragraph [9], applied to all employees of the Respondent and its corporate entities.  The Policy cautioned that it was not to be read or interpreted as granting an employee with an automatic entitlement to a motor vehicle, whether as a tool of trade or as part of their condition of employment.  Clause 4.3 of the Policy addressed the ‘Temporary Car Allowance’, setting out:

 

An employee may be eligible for a Temporary Car Allowance after commencing their role (new employee or transferring into a role where there was no previous FMCV supplied) for a maximum of 12-months.

 

If an employee is receiving a Temporary Car Allowance it is payable during periods of paid work and paid leave (Annual Leave, Personal Leave, Long Service Leave and Paid Maternity Leave) and not a part of an Eligible Termination Payment (ETP).

 

An employee receiving a Temporary Car Allowance must ensure that their vehicle is appropriate for business us at all times including being fit-for-purpose (roadworthy).

 

A Temporary Car Allowance is not available to employees who are required to be a Tool-ofTrade Vehicle and who will be required to have REMONDIS signage on the vehicle.5

 

[11]    Page 11 of the Policy provides the defined value of the Temporary Car Allowance.  The Temporary Car Allowance for a level three, attributable to positions of State Functional, National Managers & Site/Region Managers (>$25M), was $21,870.00.6

 

[12]    The Applicant had calculated 240 workdays between 10 March 2023 and 9 March 2024, eight public holidays, 14 days of annual leave and 104 days that were on a weekend – amounting to 366 days.7

 

[13]    For the last month prior to his dismissal, the Applicant calculated the distances travelled for work purposes, listing them as follows:

 

Jandakot to Canningvale return  General Discussion with Site Manager and safety walk discuss PDU    31.8km

Jandakot to Canningvale return   Take Analyst (Richey) for Site Visit and Safety

Walk Discuss Fire in Baler and MRF sorting

Facility         31.8km

Jandakot to Canningvale return   Take Accountant (Tegas) for site visit and general discussion P&L           31.8km

Jandakot to Henderson return     Discussion with Site manager on Capital business case           27km

Jandakot to Henderson return     Discussion with Site manager on P&L allocations        27km

Jandakot to Henderson return     Discussion with Site manager on P&L allocations and Safety Walk           27km

Jandakot to Henderson return     Discussion with Site manager on P&L allocations and Safety Walk           27km

Total   203.4km

 

 

[14]    In the Applicant’s application he set out the following in respect of his salary or earnings:

 

Base Salary                                           $150,072.00

Car Allowance                                       $21,870.00

Less contracted work component                    $5,858.04

 

Total   $166,083.968

 

[15]    In the Applicant’s outline of submissions, he set out the following in respect of his salary or earnings:

 

Annual Salary                                        $150,072.00

Car Allowance                                       $21,870.00

Less contracted work component                    $5,377.87

 

Total   $166,564.139

 

[16]    The Applicant acknowledged the difference regarding the ‘contracted work component’ as set out in his application and thereafter in his submissions.  He explained that he had calculated the personal use component of the vehicle allowance by a time-based availability apportionment (total annual workday hrs / total annual hrs), noting that the personal component equated to 75.4% and the work component 24.6%.  The work component had been calculated by taking total working days in the year excluding weekends, public holidays and all leave taken therefore amounting to 241 working days (WD).  However, the Applicant had amended the calculation slightly from the number submitted on his application, due to accounting for a reduction in WD – omitting public holidays and annual leave, therefore bringing the work related percentage down from 27% in the application, to 24.6%.

 

[17]    At page 146 of the Digital Hearing Book, the Applicant had prepared an Excel spreadsheet in which he had provided an apportioned amount of the vehicle/car allowance as follows:

 

Car Allowance Apportionment     RAC cost Apportionment

Annual Salary          $150,072.00 $150,072.00

Car Allowance         $21,870.00   $21,870.00

Work Related Car Allowance apportion   $5,377.87     –

RAC 2023 Cost of Running

Vehicle cost apportionment         –        $4588.12

Total Adjusted Income       166,564.13   167,353.83

 

[18]    The Applicant stated that to validate his logic and ensure alignment with the average vehicle costing methodology, he used hybrid annualised costs from the RAC Car Running Cost Guide 2023 (the Guide) selecting a vehicle similar to his vehicle with a lower purchase price, as this was the closest match available.  The Applicant said that this still resulted in his annualised income coming in under the high-income threshold.

 

3        Was the Applicant’s annual rate of earnings and other amounts less than the high income threshold?

 

[19]    The phrase ‘protected from unfair dismissal at a time if, at that time…’ in s 382 of the Act means that an employee must show that, at the time of their dismissal, their employment circumstances (i.e. coverage by a modern award, applicability of an enterprise agreement or amount of rate of earnings) met the criteria in s 382 of the Act.

 

[20]    Assessment of the high income threshold involves two considerations.  First, consideration needs to be given to the Applicant’s annual rate of earnings, which requires an examination of several factors, including those set out in s 332 of the Act, and, because of a reference in that section, potentially factors included in the Fair Work Regulations 2009 (Cth) (the Regulations).  Second, and separately, consideration needs to be given to whether there are any amounts to be added to the person’s annual rate of earnings because of factors included in the Regulations.  The sum of these two considerations is what is compared against the high income threshold.

 

[21]    The word ‘Earnings’ is described at s 332 of the Act, as:

 

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.

 

[22]    Whilst no regulations have been made for the purposes of s 332(1)(d) or s 332(2)(d) of the Act, regulation 3.05(6) of the Regulations has been made in respect of s 382(b)(iii) of the Act.  Regulation 3.05(6) provides:

 

If:

(a)      the person is entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person’s employer; and

 

(b)     the benefit is not an entitlement to a payment of money and is not a non-monetary benefit within the meaning of subsection 332(3) of the Act; and

 

(c)      the FWC is satisfied, having regard to the circumstances, that:

 

(i)      it should consider the benefit for the purpose of assessing whether the high income threshold applies to a person at the time of the dismissal; and

 

(ii)     a reasonable money value of the benefit has not been agreed by the person and the employer; and

 

(iii)    the FWC can estimate a real or notional money value of the benefit;

 

the real or notional money value of the benefit estimated by the FWC is an amount for subparagraph 382(b)(iii) of the Act.

 

[23]    The wording of regulation 3.05(6)(c) implies that the Commission has a degree of discretion in deciding whether it should consider a benefit for the purposes of assessing whether the high income threshold applies to a person at the time of dismissal.10  Once it has been determined that a benefit meets the criteria contained in regulations 3.05(6)(a) and (b), the Commission must consider whether it is satisfied, having regard to the circumstances, that each of regulations 3.05(6)(c)(i), (ii) and (iii) apply.

3.1     Annual rate of earnings

 

[24]    First, I must determine the Applicant’s annual rate of earnings.  The term ‘annual rate of earnings’ in s 382(b)(iii) of the Act refers to the annual rate of earnings at that time, and not the annual earnings to that time (that is the amount earned in the 12 months to that time).11

 

[25]    Having considered all of the evidence on this point, I find that the Applicant’s salary exclusive of superannuation amounted to $150,072.00.

 

3.2     Vehicle allowance

 

3.2.1 Legal principles

 

[26]    In Sam Technology Engineers Pty Ltd v Bernadou (Bernadou),12 the Full Bench detailed the approach to be adopted when assessing whether a vehicle allowance falls within the meaning of earnings for the purpose of s 332(1) of the Act.

 

[27]    First, the Full Bench affirmed that unlike circumstances where a company vehicle is provided, a vehicle allowance to an employee is not an amount ‘worked out in relation to the person in accordance with the Regulations’, and therefore will only take the employee above the high income threshold if it is part of the employee’s ‘annual rate of earnings’, within the meaning of s 382 of the Act.13

 

[28]    Second, a vehicle allowance is not ordinarily considered to be one of the payments or benefits falling within the items listed in the definition of ‘earnings’ in s 332(1), for the following reasons:

 

  1. a) a vehicle allowance is not part of an employee’s ‘wages’, save for circumstances where the car allowance is, in reality, paid to the employee as a means of providing the employee with additional income and there is no requirement or expectation that the employee will have to use their car for work purposes ( s 332(1)(a));
  2. b) a vehicle allowance is typically paid directly to the employee and is not an ‘amount applied or dealt with in any way on the employee’s behalf or as the employee directs’ (s 332(1)(b));
  3. c) a vehicle allowance is not a ‘non-monetary benefit’ because it is an entitlement to a payment of money (ss 332(1)(c) and s 332(3)); and
  4. d) a vehicle allowance is not an amount or benefit prescribed by the Regulations (s 332(1)(d)).

 

[29]    Third, the Full Bench stated that a vehicle allowance was not ordinarily within the scope of any of the payments or benefits referred to in s 332(2) of the Act, which are excluded from the definition of ‘earnings’ – such as a reimbursement.

 

[30]    The Full Bench concluded that a vehicle allowance will not ordinarily fall within the scope of any payments or benefits specifically ‘included’ or ‘excluded’ in the definition of

‘earnings’ provided for in s 332 of the Act.14  However, it held the view that the definition of ‘earnings’ in s 332 of the Act is non-exhaustive and as such, should be given its ordinary meaning (subject to what has been outlined above).15

 

[31]    The Full Bench therefore considered that a vehicle allowance should be treated in the following way for the purpose of calculating an employee’s ‘annual rate of earnings’ within the meaning of ss 332 and 382(b)(iii) of the Act:

 

  1. a) If a car allowance is paid to an employee in circumstances in which there is no requirement or expectation that the employee will have to use his or her car for work purposes, then the whole of the car allowance is, in reality, part of the employee’s wages and is therefore included in their “earnings”; or

 

  1. b) If a car allowance is paid to an employee at the time of their dismissal in circumstances in which there is a requirement or expectation that the employee will have to use his or her car for work purposes, then it will be necessary to determine and calculate the private benefit, if any, derived by the employee from the car allowance. To that end, we suggest the following methodology, which is based on the approach taken in Fewings:

 

  1. Determine the annual distance travelled by the car in question. The amount of the annual distance will be as follows:

 

  1. if the car allowance has been paid for at least 12 months prior to the dismissal – the distance travelled by the car over the 12 months immediately prior to the dismissal; or

 

  1. if the car allowance has been paid for a period of less than 12 months prior to the dismissal, determine the distance travelled by the car in the period during which the car allowance has been paid and then extrapolate that distance over a period of 12 months to calculate an annual distance. For example, if an employee moved into a new position with his or her employer 6 months prior to his or her dismissal, received a car allowance during that 6 month period, and drove his or her car for 10,000 km in that 6 month period, the assumed annual distance travelled by the car for the purpose of calculating the employee’s “annual rate of earnings” would be 20,000 km.

 

  1. Determine the percentage of the annual distance travelled which was for business use, which would not include travel between the employee’s home and usual place of work. If the car allowance has been paid for a period of less than 12 months prior to the dismissal, determine the business use percentage of the distance travelled in the period during which the car allowance was paid.

 

  1. Multiply the annual distance calculated in accordance with para 1 above by the business use percentage calculated in accordance with para 2 above. This provides the annual distance travelled for business purposes.

 

  1. Estimate the cost per kilometre for a car of the type used. This information can be obtained from the RACV, NRMA or like motoring organisations.

 

  1. Multiply the annual distance travelled for business purposes by the estimated cost per kilometre. The result is the annual cost of using the car for work purposes. Compare that annual cost with the amount of the annual car allowance. The amount of the annual car allowance will be as follows:

 

  1. if the car allowance was paid for at least 12 months prior to the dismissal – the amount of the car allowance paid to the employee in the 12 months immediately prior to the dismissal; or

 

  1. if the car allowance has been paid for a period of less than 12 months prior to the dismissal, determine the amount of the car allowance paid in that period and then extrapolate that payment over a period of 12 months to calculate an annual amount of the car allowance. For example, if an employee in a business other than a small business was employed in that business for a period of 9 months prior to his or her dismissal, and received a car allowance of $2,000 each month in that 9 month period, the assumed annual car allowance for the purpose of calculating the employee’s “annual rate of earnings” would be $24,000 ($2,000/month x 12 months = $24,000).

 

  1. If the amount of the annual car allowance exceeds the annual cost of using the car for work purposes, the difference is the private benefit to the employee of the car allowance, which forms part of their “annual rate of earnings”

 

3.2.2 Applicant’s submissions

 

[32]    The Applicant submits that the amount of his salary is not under dispute, but in respect of the vehicle allowance, he initially claimed that $5,377.87 was attributable to work-related travel.  Hence, resulting in total earnings of $166,564.13, which is less than the high income threshold.

[33]    Referring to the Policy, the Applicant observed that it could be implied from the requirement that he ‘ensure that their [his] vehicle is appropriate for business use at all times including being fit for purpose’, that his vehicle was available for any work-related travel as required during his regular workday.

 

[34]    The Applicant says that whilst located at the Jandakot office, he was required to service two additional sites, at Canning Vale and Henderson.  The Applicant said that these sites were 15.9 km and 13.5 km from the Jandakot office respectively.16  The Applicant acknowledged that most work was done remotely, but adhoc site visits were required.17

 

[35]    The Applicant said that he did not have documented evidence of trips to Canning Vale and Jandakot but in the month prior to his dismissal, he had made four return trips to Henderson and three trips to Canning Vale.  The Applicant explained that the trips were arranged with operational managers as required.

 

[36]    The Applicant adds in his further amended submissions, that the actual usage of his vehicle for work-related travel over the last six months was minimal.18  The Applicant stated that he had not attempted to quantify this amount, but had simply acknowledged that there was work-related travel.19

 

[37]    In respect of the evidence of the Respondent, particularly that of Ms Smith and Mr Tunbridge, the Applicant agreed with their six month estimates of visits to the relative sites, albeit he noted the variance between the high and low estimates.20  However, the Applicant clarified that there was an increase in the frequency of visits to the sites in February 2024 due to a new accountant joining the team,21 and because Mr Tunbridge had asked for a weekly halfday catch-up.22

 

[38]    The Applicant pressed that his argument was premised upon time-based apportionment. Conceding that cases addressing vehicle allowances based on availability are limited, the Applicant adjured that principles of reasonableness and fairness can support an allowance for vehicle availability.  That is, if an employee is required to have a vehicle available at all times for work purposes, a reasonable allowance should be provided taking into account the cost of maintenance and availability of the vehicle.  In support of the ‘availability argument’, the Applicant referred to the Policy that stated that an ‘Employee receiving a temporary car allowance must ensure that their vehicle is appropriate for business use at all times including being fit for purpose (roadworthy)’.  The Applicant interpreted the phrase ‘at all times’ such that it was not limited to when the vehicle is in use, but rather could be interpreted as his daily working hours.

 

[39]    The Applicant noted that to factor in the cost of availability in the apportionment calculations, he had taken into account total worked hours and total annual hours (WD), which were workdays excluding public holidays, weekends and annual leave days, multiplied by nine, being the average ‘Daily Work Hours’ divided by the total annual hours being 366 x 24 (TH):

 

(WD x DH) / TH = % Available Hrs

(240 x 9) / (366 x 24) = 24.6%

[40]    The Applicant submits (and as noted) that when applying this to the total allowance paid the portion of the allowance attributable to availability is $5,377.87.

 

[41]    The Applicant further submits that a reasonable measure of availability cost, is the Guide.  The Applicant notes that the vehicle he drove to work each day was a Ford Ranger FX4 3.2L Diesel Auto purchased new in December 2017, the on road purchase price being $62,000 RRP.23  The closet equivalent in the Guide is the Ford Ranger XL dual cab 2.0L Diesel Auto, which, said the Applicant, had a lower purchase price and smaller engine.  Hence, he considered he had erred on the side of caution in his calculation to provide reasonable vehicle running costs.

 

[42]    According to the Applicant, when applying the availability percentage to the total apportioned cost, this amounted to $4,637.92 – hence reducing the total salary to fall under the high income threshold.

 

3.2.3 Respondent’s submissions

 

[43]    The Respondent submits that it agrees that there was a requirement for the Applicant to use his personal vehicle for work purposes, but that the actual use over the last 12 months of his employment was minimal.

 

[44]    It highlighted that Mr Gusenzow had provided evidence that the Applicant’s role was based at Jandakot and it was ‘very rare and not a usual requirement’ for him to travel for work outside that office.24  In respect of the travel for work undertaken by the Applicant, Mr Gusenzow said it comprised a small number of visits to the Respondent’s Henderson and Canning Vale offices, as a part of a ‘getting to know you’ exercise in the last six months of his employment.25 Otherwise, said the Respondent, the Applicant’s duties were performed at the Jandakot office.

 

[45]    According to the Respondent, the Applicant’s total number of visits to Henderson was between five and ten, and to Canning Vale between three and six.26   The Respondent, accepted the Applicant’s assertion that the distance of these trips from Jandakot is 13.5km and 15.9km, respectively.

 

[46]    Whilst not conceding that every journey was a return journey, that is, starting and returning at Jandakot, the Respondent pressed that in the absence of any better detail from the Applicant, the total distance travelled, assuming that each was a return journey, was in the order of:

 

Minimum

To Henderson and return five times:                5 x 13.5 x 2 = 135

To Canning Vale and return three times:          3 x 15.9 x 2 = 95.4

Total = 230.4

Maximum

To Henderson and return ten times:                 10 x 13.5 x 2 = 270

To Canning Vale and return six times:              6 x 15.9 x 2 = 190.8

Total = 460.8

[47]    The Respondent said that on this evidence, the maximum business travel was 460.8km, all of which took place in the last six months of the Applicant’s employment.  Prior to that, said the Respondent, the amount of the Applicant’s business travel was zero, or essentially zero.

 

[48]    Insofar as the Applicant’s evidence was to be believed, the Respondent said that the

Applicant had no ‘documented evidence’ of business travel – with the only figure provided concerning the last month of his employment, where he claimed four trips to Henderson and three trips to Canning Vale, but again, without any documentation or records.  The Respondent pressed that this claim regarding the last month of the Applicant’s employment was neither accurate nor representative of the business travel undertaken by the Applicant.27

 

[49]    Concerning the Respondent’s evidence of the Applicant’s business travel, the Respondent pointed to its reliance on the evidence of the managers responsible for the Henderson and Canning Vales sites, which corroborated the evidence as stated by Mr Gusenzow.  The Respondent submits that its evidence ought to be preferred as against the Applicant’s vague and unsubstantiated evidence as to his business travel discounted.

 

[50]    The Respondent observes that the Applicant had not initially given evidence as to the make, model or age of his care making use of the Guide, impracticable.  The Respondent therefore claims that an appropriate rate per kilometre, in light of this gap in the Applicant’s evidence, is the per km rate published by the Australia Tax Office for the claiming on a cents per kilometre basis of work travel.  This rate, for 2023-24, is 85 cents per kilometre.28

 

[51]    The Respondent says that the amount which should be deducted from the Applicant’s vehicle allowance for work travel is:

 

461 x 0.85 = $391.85

 

[52]    With this deduction, the Respondent says that the Applicant’s earnings are:

 

$150,072.00 +

$21,870.00 –

$391.85

= $171,550.15

 

3.2.4  Consideration

 

[53]    Concerning the assessment of whether a vehicle allowance falls within the meaning of earnings for the purpose of s 332(1) of the Act, the Respondent relies upon the approach of the Full Bench in Sam Technology Engineers Pty Ltd v Bernadou.29 The Respondent was entitled to do so given the well-established Full Bench authority on this subject matter and my departing from an established Full Bench authority, which is arguably binding in the circumstances of the case being considered, would be a fundamental error of law.

 

[54]    Adopting the approach endorsed by the Full Bench in Bernadou,30 I note from the outset that there was an expectation that the Applicant would have use of his car for work purposes.  Therefore, it is necessary to determine and calculate the private benefit, derived by the Applicant from the vehicle allowance.

 

[55]    The Applicant cites the annual distance travelled by his vehicle as 15,925km per annum.  The Respondent did not challenge this evidence.

 

[56]    Further, given the Applicant does not cavil with the Respondent’s calculation of the distance travelled for at least 12 months prior to the Applicant’s dismissal, I have, erring on the side of caution, adopted the scenario where ‘Maximum’ distances were travelled by the vehicle for work purposes, therefore equating to 460.8km.

 

[57]    The percentage of the annual distance travelled which was for business use, which would not include travel between the employee’s home and usual place of work equates to 0.0289 or 3% if rounding up.

 

[58]    Multiplying the annual distance calculated, 15,925km with the business use percentage calculated provides the annual distance travelled for business purpose: 477.75km.

 

[59]    The Guide31 is premised upon driving 15,000km per year.32  For a Ford Ranger XL dual cab 2.0L Diesel Auto, the total cost per week is $362.71.  Multiplying that amount by 52 gives an annual running cost of $18,860.92.

 

[60]    The cost per kilometre is $18,860.92 divided by 15,000km which amounts to a cost of $1.26 per kilometre.  This, therefore, amounts to $600.72, if the Applicant’s business use of the vehicle amounts to 477.75km or $580.61, if the Applicant’s business use amounts to 460.8km.

 

[61]    If the amount of the annual vehicle allowance exceeds the annual cost of using the car for work purposes, as is the case here, the difference is the private benefit to the employee of the car allowance, which forms part of their ‘annual rate of earnings’.  The difference in this case is $21,870.00 – $600.72 = $21,269.28.

 

4        Conclusion

 

[62]    The Respondent pressed that its jurisdictional objection should be upheld because when the benefits afforded to the Applicant were taken into account, the Applicant was earning not less than the high income threshold.

 

[63]    I have found that the Applicant’s earnings consisted of the following:

 

Wages                                                                      $150,072.00

 

Private benefit of the vehicle allowance                              $21,269.28

 

Total                                                              $171,341.28

 

[64]    As the Applicant’s earnings are not less than the high income threshold of $167,500.00, he is a person that is not protected from unfair dismissal by virtue of s 382 of the Act.  The Respondent’s jurisdictional objection is upheld and therefore the Applicant’s unfair dismissal application is dismissed. “

Blyth v Remondis Australia Pty Ltd – [2024] FWC 1534 delivered 14 June 2024 per Beaumont DP