[2012] FWA 2424

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Fair Work Act 2009
s.394—Unfair dismissal

Lisa Slavin
Horizon Holdings Pty Ltd



Application for unfair dismissal remedy - jurisdictional objection - high income threshold.


[1] Ms Lisa Slavin (the Applicant) has made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Slavin was dismissed from her employment with Horizon Holdings Pty Ltd (the Respondent or the company) on 29 September 2011. Ms Slavin commenced employment in July 2000.

[3] Horizon Holdings Pty Ltd objects to Ms Slavin’s application on the grounds that, at the relevant time, she was not protected from unfair dismissal by the Act because the sum of her annual earnings and other relevant amounts calculated in accordance with the Fair Work Regulations 2009 (the Regulations) exceeded the high income threshold. Ms Slavin contests this objection.

Statutory Framework

[4] Section 394(1) of the Act allows for a person who has been dismissed to apply to Fair Work Australia for an order under Division 4 of Part 3-2 of the Act. Section 396(b) requires that Fair Work Australia decide whether a person is protected from unfair dismissal prior to determining the merits of an application under s.394(1).

[5] Section 382 of the Act provides:

[6] Earnings, as specified in s.382(b)(iii), is defined in s.332 of the Act:

[7] Regulation 3.05 relevantly provides:

[8] The high income threshold at the relevant time was $118 100 per annum.

Preliminary Matters

[9] Prior to consideration of the legislation it is relevant to note two general matters raised by the Applicant.

[10] First, the Applicant suggests that because she had permission to use her company provided car and mobile phone for personal reasons such usage should not be considered in determining her annual rate of earnings. Second, she says that her annual rate of earnings should not be considered across two separate financial years but rather her earnings for the financial year in which she was dismissed should only be considered (and not annualised).

[11] On the first matter, in Rofin Australia Pty Ltd v Newton 1 a Full Bench held that the applicable principles with respect to a motor vehicle were ‘enunciated by Senior Deputy President Watson in Condon v G James Extrusion Company (1997) 74 IR 283, namely:

[12] That the Act now refers to a person’s ‘annual rate of earnings’ (as defined) as opposed to their remuneration has no adverse effect on the applicability of these principles.

[13] These principles are also applicable to the assessment of the mobile phone. That is, it is the private benefit derived from the mobile phone that is relevant in determining earnings.

[14] On the second matter it does not make sense to suggest that earnings should be determined with respect to actual earnings in the financial year in which the termination took place. To not annualise the wages or other benefits of the Applicant would provide an unfair advantage to employees dismissed early in the financial year and disadvantage those dismissed in June of any year. Further, it seems to me that it would not be logical to determine an Applicant’s annual rate of earnings by reference to any period except that period preceding the termination of her employment. Section 382 of the Act is directed at protection from unfair dismissal if, at that time, (that is the time of the dismissal) the sum of the person’s annual rate of earnings and such other amounts as prescribed by the regulations is less than the high income threshold. Consideration of annual rate of earnings in the most recently completed financial year would not allow for the determination of an annual rate of earnings at the time of the dismissal.

[15] It is well established that the onus is on the Respondent in this matter to establish the ‘evidentiary basis upon which a determination [that the Applicant is excluded from protection from unfair dismissal] can be made.’ 3

[16] Where the Respondent cannot satisfy the Tribunal that the annual rate of earnings exceeds the high income threshold, the objection must fail. 4

Determination of annual rate of earnings

[17] There are four components, which the parties argue, are matters for consideration in determining the Applicant’s annual rate of earnings. These are:


[18] There is no disagreement between the parties that the Applicant’s wage (s. 332(1)(a)) at the time of the termination of her employment was $96 000 per annum.

The motor vehicle

[19] The Applicant was provided with a company car. There is no dispute that she could use the car for business and personal purposes (although no contract exists as to her employment arrangements). The vehicle in question was a 2009 BMW 520d, which can be described as a ‘luxury’ car.

[20] Ms LinQing Liu (known as Jane Liu) is a Director of the company. Her evidence is that Ms Slavin would have travelled to the city for business purposes about 20 times in the last 12 months, 5 although she agreed that Ms Slavin may have visited some other locations for work.6

[21] Ms Liu’s knowledge of Ms Slavin’s business use of the car is based on asking shop staff who said that Ms Slavin visited ‘once a month or once a week.’ 7 Her evidence is that many of the locations Ms Slavin said she visited were in fact weekend and holiday visits with her family and that she knew this from the car navigation system.

[22] Ms Liu agreed that she had not seen invoices for sales team meetings in places such as Warrandyte. 8 Ms Liu returned to Australia in late May 2011 after a six year absence. Since her return she has worked very hard, not talking much to anyone9 and working nine days a week.10

[23] Ms Mo Han Wang (known as Lucy) is a bookkeeper with the company. Her evidence is that on about 4 November 2011 she took an odometer reading from the BMW of 36 726 km. 11 From the time of the return of the car by Ms Slavin at the end of September until she took the odometer reading she says the car was in the warehouse.

[24] Ms Slavin’s evidence is that she used the car extensively for work purposes. She attended stores owned by the company in the city and St Kilda, visited properties owned by the Respondent in Collingwood and other suburbs, drove to business meetings with the bank manager, solicitors, real estate agents, attended trade fairs, travelled to the airport, and attended sales team meetings. She used the car for these purposes. She also gave evidence that she used the car on weekends and on her holidays to travel to country areas to check on competitor stock and market penetration. She agreed in cross examination that she did not know if she had used the car for all of the purposes she listed in the last 12 months of her employment.

[25] Ms Slavin disputes that her business travel in the last 12 months was limited to 20 visits to the city and driving to and from work. She also rejects the evidence of Ms Liu with respect to her use of the company car as Ms Liu had only arrived in Australia after a six year absence in late May 2011.

[26] Ms Slavin says that her personal use of the company car was minimal as she has two other cars at home, which she would use on a weekend or for private travel. 12

[27] Ms Slavin says that when she returned the car to the Respondent when her employment was terminated the odometer reading was between 29 000 and 31 000 km.

[28] Mr Colquhoun submits for the Respondent that on 10 January 2011 when the car was serviced the odometer reading was 23 865 km. In November (not October) when Ms Wang read the odometer it was 36 726 km, suggesting the car had travelled 12 861 km in approximately nine months. This would annualise to 17 148 km in a year. The Applicant drove 9.2 km per day to and from work 13 and made 20 or so return trips to the city from the company office in Mordialloc - a distance of 25 - 30 km per trip.14 Mr Colquhoun also submits that I should deduct 7.71 weeks of travel to and from the office from the business usage as the Applicant was on personal and annual leave for this period during the last 12 months.

[29] On the submission of Mr Colquhoun the private benefit to the Applicant of the vehicle would be calculated at a bit over $14 000.

[30] Ms Slavin submits that the value of the private use of the car should be based on the projected annual kilometre usage of 17 148 km (as submitted by Mr Colquhoun) multiplied by the kilometre allowance as determined by the tax office for business use of a motor vehicle of 0.75 cents per kilometre (as I understood her submission). The resulting amount should be apportioned as per the Fringe Benefits Tax (FBT) reportable amount. This she submits takes the private use value to $385.83.


[31] I was provided with a number of odometer readings for the car. These are:


Odometer reading

Reading taken from

31 March 2010 15


FBT calculation sheet

20 July 2010 16

12444 (+ 5932)

service record

10 January 2011 17

23865 (+11421)

service record

31 March 2011 18

27576 (+3711)

FBT calculation sheet

4 November 2011 19

36726 (+9150)

Ms Wang’s odometer reading

[32] Extrapolating from the odometer readings prior to November 2011 indicates that the reading of 36 726 km at the time the car was returned is, in all probability, correct. I reject Ms Slavin’s evidence that the odometer reading was between 29 000 km and 31 000 km when she returned the car. For this to be correct she would only have driven the car 1 500 - 3 500 km in the last seven months that she had the car. This would not fit with any other pattern of usage of the car. There is no evidence to suggest that she is correct on this point.

[33] The obligation is on the employer, having raised the jurisdictional objection to the application to prove that objection. The poor quality of evidence with respect to the motor vehicle usage reflects badly on the Respondent and its representative. Much of the evidence presented by the Respondent on the motor vehicle usage by Ms Slavin is of little or no probative value to me in determining at least this part of its objection, even on the balance of probabilities.

[34] Ms Liu’s evidence was, in particular, of no value and she is not a reliable witness. She was in Australia for the last four months of Ms Slavin’s employment. She could not know from China how Ms Slavin went about her business as CEO of the company, much less when, where and under what circumstances she drove her company provided car. I only accept the final odometer reading on the car because it is supported by other, reliable evidence.

[35] As a matter of common sense I find it difficult to accept that a CEO of a small to medium sized company involved in sales (both buying and selling), importing and exporting and a range of other activities would have such limited business use of a car as suggested by representatives of the Respondent.

[36] Ms Slavin’s evidence is only slightly more reliable than that of Ms Liu. She would have me think that in the last seven months she had the car she drove it between 1 500 and 3 500 km when in almost every other month that she had the car she drove it more than 1 500 km.

[37] Whilst I do not accept the odometer reading she claims on return of the vehicle, I do accept that she used the car for business purposes more than admitted to by the Respondent. I do not accept her evidence that she spent her holidays and weekends ‘travelling to country areas to check on competitor stock and market penetration’ 20 such that use of the car is fully attributable to work for these periods.

[38] I do accept that the Applicant used the vehicle for personal purposes.

[39] The Respondent, however, has failed to meet its obligation with respect to the benefit of the usage of the motor vehicle. This leaves me with two options. Either I find that I do not have sufficient evidence to determine a monetary value of the use of the vehicle or I determine to split the car evenly between business and personal usage.

[40] I have decided to split the car evenly between the two uses.

Conclusion as to benefit of motor vehicle

[41] I am satisfied that the Applicant receives a benefit from the private use of the motor vehicle. Whilst there is no written agreement between the parties as to private usage, this is undisputed. There is no agreed monetary value of the use of the motor vehicle. In accordance with reg 3.05 I am satisfied, however, that a notional monetary value of the benefit of the private use can be determined.

[42] I accept that the projected annual usage based on the last two odometer readings of the car is 17 148 km.

[43] The basis for determining the value of private use of a motor vehicle was considered in an appeal decision in Kunbarllanjnja Community Government Council v Fewings 21 (Fewings case). In that matter a Full Bench observed:

[44] Using the methodology outlined in Fewings Case I calculate that the value of the private use of the motor vehicle to be added to Ms Slavin’s annual salary is $8 831. 22


[45] Ms Wang gave evidence on the methodology she used to determine the Applicant’s private benefit of the mobile phone over the last 12 months. Ms Wang calculated the total cost of the mobile phone bills for the Applicant’s phone over the last 12 months of her employment at $5 001.08. This was made up of $119 per month for the phone ‘plan’ plus additional charges for international calls, premium SMS amounts, subscriptions and broadband usage. 23

[46] Ms Wang went through the bills line by line and determined those international calls she believed were personal calls of the Applicant. These calls included calls to Singapore (which the Applicant did not question) and a number of calls made to specific numbers in Australia from overseas that she believes were the numbers of family and friends of the Applicant. These numbers are set out in the written witness statement of Ms Wang and do not need to be repeated here.

[47] Ms Wang’s evidence is that she knew some of the numbers as the Applicant’s husband’s details are on the company records, the Applicant’s daughter had worked for the company at some time so her number was known and the Applicant’s father had done some casual work for the company so his phone number was on record. Other numbers she believed were family and friends of the Applicant included a hairdresser, a business contact not used by the company anymore and a restaurant. One number used extensively overseas was a mobile number ending in 010. Ms Wang assumes this number belongs to the Applicant’s husband because it was used late at night and early in the morning and Ms Wang does not know who else the Applicant would be contacting at that time. This number was used for SMS texts only.

[48] On the basis of the line by line assessment of calls to and from overseas with respect to the private numbers identified by Ms Wang, the benefit of the international calls to the Applicant was calculated at $2 298.30.

[49] All domestic calls made by the Applicant were ‘free’ calls in that they fell within the $119 phone plan. To determine the ‘value’ of these calls Ms Wang, again on the basis of the numbers she assumed were family and friends, went through the bills line by line and determined how much time the Applicant spent on calls to these numbers. She excluded from this any calls made outside working hours. 24 She then calculated the proportion of time the Applicant spent on the identified family and friends calls as a percentage of the total usage time on the phone.25 This came to 42% - that is 42% of the time used on the phone domestically was on private calls of the Applicant. Ms Wang then applied this 42% to the total bill cost for the 12 month period less the international calls.

[50] Ms Slavin’s evidence is that she travelled extensively for work and the phone was the only way she had of keeping in contact with family and friends. She says she does not know who the number ending in 010 belongs to and two other numbers are unknown to her. Her evidence is that it is not possible to know whether the calls she made to her family were work or private calls as her father, daughter and occasionally her husband had worked for the company. Ms Slavin submits that all of the domestic calls have no cost as they come within the $119 plan with the phone and therefore she should not have attributed to her the value of such calls.


[51] Mr Colquhoun, in his written submissions, said he would provide oral submissions on the value of personal calls made by the Applicant. I have re-read the transcript a number of times and cannot find where he puts a value on the personal use of the phone. If I have understood the submission of Mr Colquhoun, the value of the Applicant’s private calls within Australia is 42% of ($5 001.02 - $2 298.30) = $1 135.14. This then should be added to the value of the international calls giving a total value of the benefit of private use of the phone of $3 433.47.

[52] Ms Slavin’s submissions misconstrue the basis on which personal use of a mobile phone may be considered in determining an annual rate or earnings for the purpose of determining if she is protected from unfair dismissal. This assessment is not about the cost to the company of her private use of the mobile phone or some balancing of her private use against work she performed ‘out of hours’ but is about the private benefit she derives from the use of the phone.

[53] I have considered the evidence with respect to the number ending in 010. I note that this number only appears on bills where calls are made on international roaming - that is when the phone was being used overseas. The number of text messages from the number is amazingly high. Had the number only appeared on one phone bill it might be easy to pass it off as some error or bug, but this is not the case (nor was it put to be the case). The number appears each time there are calls made from overseas - whether in China or New Zealand. The records show SMS sent to the number at all hours of the day and night. A consideration of the calls made to numbers the Applicant agrees are family numbers (in particular her husband and daughter) shows that the text messages are sent at times in close proximity to those calls. On the balance of probabilities I accept that the 010 number was a number connected to family or friends of the Applicant and that text messages to that number are private text messages.

[54] With respect to the additional phone number used in New Zealand, in the scheme of things this will not alter my ultimate findings. I am prepared to allocate the amount identified by Ms Wang as private calls of the Applicant.

[55] I have considered the material put to me by Ms Wang. I accept that she was diligent in the calculations she has undertaken with respect to determining what she believed were personal calls of the Applicant to and from overseas and time spent on local calls. I find, however, that there are some errors in the submission, as I understand them, of Mr Colquhoun.

[56] The Applicant says that the Respondent would have to pay the $119 plan cost in any event so she should not have any of that cost classified as a private benefit to her. I do not accept that argument. Ms Slavin received a private benefit from a company provided mobile phone. Whilst there was no written agreement between the Applicant and the Respondent I accept that the Applicant did receive a benefit from the use of the phone and that the Respondent accepted that she could use the phone for such purposes. That private benefit should be considered in determining if the high income threshold applies to Ms Slavin such that she is not protected from unfair dismissal.

Conclusion as to benefit of mobile phone

[57] I find that the benefit of the personal overseas calls to the Applicant is $2 898.

[58] I also find that the time spent by the Applicant talking to family and friends whilst in Australia constituted approximately 40% of the total time spent on the phone domestically. I consider that 40% (and not 42%) allows for any errors in calculations (which I have not sought to replicate) or business calls inadvertently being allocated as personal calls.

[59] I do not accept that the 40% should be applied to the total cost of the phone bills over the last 12 months less that benefit attributable to the Applicant for international calls. To do so would result in the Applicant having attributed to her 40% of the cost of legitimate business international calls (these having not been deducted) and 40% of the cost of premium SMS, subscriptions and broadband usage in circumstances where nothing has been put to me to suggest these costs are all attributable to private usage by the Applicant.

[60] It is possible, in accordance with reg 3.05(6) to determine a notional money value of the benefit that accrues to the Applicant from the use of the mobile phone. In the circumstances I consider it reasonable to do so.

[61] A fair estimate of the value of the phone for international calls is $2 898.

[62] A notional value of the domestic calls is 40% of the cost of the phone plan over the previous 12 months, that is 40% of ($119 x 12) = $571.20.

[63] The benefit to the Applicant from her private use of the mobile phone is therefore calculated at ($2 898 + $571.20 =) $3 469.20.

$8 000 payment

[64] Given the decisions I have made above with respect to wages, the motor vehicle and the mobile phone it is not strictly necessary to make a decision with respect to the $8 000 payment made in October 2011. However, if I am wrong on those matters above I would not, in any event, include the $8 000 in determining if the Applicant’s annual rate of earnings exceed the high income threshold for the following reasons.

[65] On or about 27 August 2010 Ms Liu of the Respondent wrote to the Applicant, by the terms of the letter in reply to some communication from the Applicant, indicating that, in recognition of her 10 year anniversary with the company and in recognition of her work, the company was prepared to pay for three return air tickets for her and her family to a value of $8 000. 26 For reasons relating to the financial situation of the company Ms Slavin had not availed herself of this benefit at the time her employment was terminated in September 2011.

[66] On 2 October 2011 the Applicant’s solicitor sent an email to Mr Colquhoun of VECCI for the Respondent and sought, amongst other things, in relation to the flights that Ms Slavin be provided with travel vouchers from Harvey World Travel or Qantas as she was ‘unable to book flights at this time.’ 27

[67] On 5 October 2011 Ms Liu sent a letter to Ms Slavin care of her solicitors, which stated:

[68] Ms Slavin’s final pay slip for the pay period 29 September - 6 October 2011 shows an $8 000 payment as ‘wages’ to Ms Slavin.

[69] Mr Colquhoun tendered the correspondence relating from August 2010 as evidence of the entitlement to the plane tickets. Mr Colquhoun submits that the $8 000 was paid and accepted as such and therefore should be counted as wages for the purpose of determining the Applicant’s annual rate of earnings.

[70] Ms Slavin contends that the $8 000 payment was a 10 year bonus and should be treated as such. By virtue of the operation of s.332(2)(a) and the accompanying legislative note that states that ‘some examples of payments covered by paragraph (a) are commissions… bonuses, and overtime (unless the overtime is guaranteed)’ it therefore should not be included in any calculation. She says the payment was clearly a bonus as it had a value that could not be determined in advance of receiving it and should be excluded from the calculation.


[71] I accept that the $8 000 payment, in lieu of plane tickets, was a bonus paid to the Applicant for 10 years service to the company. The August 2010 email from Ms Liu (Jane) says as much. Whilst an approximate value was placed on the bonus in 27 August 2010 when it was due to be paid, the actual value was not known until the matter was settled post the termination of Ms Slavin’s employment.

[72] The purpose of the exclusion of amounts from earnings as set out in s.332(2)(a) surely is to exclude those amounts which cannot be determined in advance from being considered as wages for the purpose of the high income threshold whenever they might be paid. It should not matter that the bonus offered by the Respondent in this matter was not collected by the Applicant until after the termination of her employment or that it was, ultimately, paid in the form of money and not as airline tickets or vouchers. It is true that the value of any bonus - paid as wages or otherwise - will always be known after the bonus is given. Section 332(2)(a) of the Act would have little to do if these amounts were included because their value is known after they are paid, which will always be the case.

[73] I am not aware of any other bonus being paid to Ms Slavin during her employment. Ms Liu gave evidence that she received a five year bonus of flights to Paris valued at $8 000. Ms Slavin objected to this on the basis that the documentary evidence related to the 10 year bonus. Given the conflicting statements of the five year bonus and no other evidence to support the payment of the five year bonus I discount this statement from Ms Liu.

[74] If the Applicant had taken the bonus as tickets and used them when offered in 2010 the consideration of this amount would not be an issue even if her employment had been terminated at that time. The tickets (and their ultimate conversion to $8 000) were clearly a bonus payment. There is no evidence that it was a regular payment or that its value was known in advance or even that it was to be given.

[75] In my opinion it would be contrary to the Act if an employer could, on termination, make some payment to an employee, classify it as wages and then argue that the payment should be counted as part of an employee’s annual rate of earnings for the purpose of determining if the employee was protected from unfair dismissal.

Conclusion as to $8 000 payment

[76] The evidence suggests, and I accept, that this payment was a bonus paid in the event of the Applicant’s 10 years service to the company. The payment did not, on any evidence, form part of the Applicant’s contract of employment. It was a one-off payment and it falls into the definition of ‘payments the amount of which cannot be determined in advance’ such that it is excluded from the Applicant’s earnings under s.332(2)(a) of the Act.

[77] I exclude the $8 000 payment from the calculation to determine the Applicant’s annual rate of earnings.


[78] I have considered in detail all of the submissions and evidence of Ms Slavin and the Respondent. On this basis and in accordance with s.332 of the Act and reg 3.05 I find that Ms Slavin’s annual rate of earnings to be $108 300.20, calculated as follows:


Value ($)


96 000.00


8 831.00


3 469.20


108 300.20

[79] The Applicant’s annual rate of earnings is therefore less than the high income threshold (currently $118 100).

[80] The Applicant, in accordance with s.382 of the Act, is therefore protected from unfair dismissal.

[81] The jurisdictional objection of the Respondent is dismissed. An order to this effect will issue concurrent with the decision.

[82] The file shall now be subject to further programming to deal with the application for relief from unfair dismissal.



L Slavin on her own behalf.

A Colquhoun on behalf of the Respondent.

Hearing details:

March 9.

 1   (1997) 78 IR 78.

 2   (1997) 78 IR 78, 82.

 3   Kunbarllanjnja Community Government Council v Fewings PRQ0675 (7 May 1998).

 4   London v Profit Equipment (Vic) Pty Ltd PR949990 (29 July 2004).

 5   Transcript PN96.

 6   Transcript PN103.

 7   Transcript PN142.

 8   Transcript PN170.

 9   Transcript PN276.

 10   Transcript PN280.

 11   Exhibit H5, paragraph 5 and attachment LW-3.

 12   Exhibit S4, paragraph 6.

 13   Exhibit H7, paragraph 20(e).

 14   Transcript PN821.

 15   Exhibit S5, page 2.

 16   Exhibit H5, attachment LW-2.

 17   Exhibit H5, attachment LW-2.

 18   Exhibit S5, page 1.

 19   Exhibit H5, attachment LW-3.

 20   Exhibit S4, paragraph 6.

 21   PRQ0675 (7 May 1998).

 22   Twelve months travel is 17 148 km. Fifty per cent of this for private usage is 8 574 km. Multiply this by the cost per kilometre for a luxury car of 103 cents gives $8 831.22.

 23   See exhibit H5, attachment LW-5; exhibit H3; exhibit H4.

 24   Transcript PN492.

 25   Exhibit H6.

 26   Exhibit S4, attachment A.

 27   Exhibit S4, attachment B.

 28   Exhibit S4, attachment B.

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