Threshold dispute: petrol and toll payments ignored

Threshold dispute: petrol and toll payments ignored
10 October 2017
By Dhruv Saggar

An employer's appeal against a high income threshold ruling has led to a stay order after it was found petrol and toll payments were not considered in salary calculations.

Deputy president Clancy ruled there was an arguable case that business development manager Andrew Bernadou earned too much money to be covered by the unfair dismissal regime. 

Background

 
Mr Bernadou was dismissed from his employment with Sam Technology Engineers.

He earned a yearly base salary of $125,000. He also received a car allowance of $15,000 per year plus $5000 after 12 months' of service. There was a 60/40 split between business and personal use, meaning that 60% of the $15,000 and $5000 were added to Mr Bernadou’s earnings for the purpose of the high income threshold.

He also received telephone and laptop reimbursements of $1560 and $1500 per year respectively, split 50/50 for business and personal use.
 
The total sum of Mr Bernadou’s earnings was $138,500, $400 short of the high income threshold of $138,900.  
 
Sam Technology Engineers appealed the decision. It argued that Commissioner Ryan failed to consider $3355 in petrol and fuel reimbursements when deciding Mr Bernadou didn't earn more than the high income threshold.

Legal issues

 
Section 606 of the Fair Work Act allows a decision to be stayed. There are two elements determining whether a stay order will be granted (Edghill v Kellow-Falkiner Motors):
 
  1. An arguable case exists with some reasonable prospects of success in both permission and merits of the appeal.
  2. Balance of convenience favours a stay order.
Other relevant sections are:
  • Section 382 of the FWA provides a person is only protected from unfair dismissal when total earnings are under the high income threshold ($138,900).
  • The Fair Work Commission has to decide whether it is in the public’s interest to appeal a decision under section 400(1) of the FWA. 
  • An appeal can also only be made on a question of fact if the decision involved a significant error of fact under section 400(2) of the Fair Work Act.

Decision (Deputy president Clancy)

Arguable case with some reasonable prospects of success

Commissioner Ryan, despite knowing that Mr Bernadou was reimbursed for petrol and toll payments, did not take that into account when determining his earnings. He was satisfied he earned below the high income threshold without considering those reimbursements.

Therefore, deputy president Clancy decided there was an arguable case with some reasonable prospects of success as Commissioner Ryan did not ‘have regard to all the material facts’.

Balance of convenience

The deputy president also found the balance of convenience favoured a stay. There would  be no prejudice to Mr Bernadou and it might save both parties time and expense.
 
Deputy president Clancy granted a stay, pending an appeal or further order.

Sam Technology Engineers Pty Ltd v Andrew Bernadou (C2017/4495) [2017] FWC 4334
 

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