Before the FWC could weigh fairness, the income threshold closed the door
A COO was dismissed in November 2025 and could not bring an unfair dismissal claim. His salary was simply too high.
Vincenzo Mobilio was dismissed from his role as Practice Manager and Chief Operating Officer at Niddrie X-Ray Pty Ltd on 14 November 2025. He lodged an unfair dismissal application with the Fair Work Commission on 5 December 2025, asserting the dismissal was unfair. The Commission, however, never got to examine that question.
The case turned on what is known as the high income threshold, a figure under the Fair Work Act 2009 that determines whether an employee not covered by a modern award or enterprise agreement can access the unfair dismissal regime at all. At the time Mobilio was dismissed, that threshold was $183,100 per annum.
Mobilio had been employed by Niddrie X-Ray since 14 August 2018, starting on an hourly rate of $75 and 44 required hours per week. By the time of his dismissal, his rate had risen to $85 per hour. Payslips from the period before his termination showed weekly earnings of $3,740, exclusive of superannuation, equating to annual earnings of $194,480.
Mobilio did not argue that he was covered by a modern award or enterprise agreement. Deputy President Masson also independently assessed whether the role would attract modern award coverage and concluded it would not, "having regard to the seniority of the role and the management responsibilities."
With annual earnings of $194,480 sitting above the $183,100 threshold, the Commission found on 19 March 2026 that "the Applicant was not protected from unfair dismissal." Niddrie X-Ray's jurisdictional objection was upheld and the application dismissed. The merits of the dismissal were never examined.
The matter was initially listed for conference on 3 March 2026 but was adjourned due to a medical condition and relisted for 24 March 2026. Mobilio was also granted an extension to file submissions after missing a previous deadline, but ultimately filed no material in response to the employer's evidence, nor did he seek a further extension. The matter was decided on the papers.
The decision, handed down by Deputy President Masson in Melbourne on 19 March 2026, crystallises a threshold question that HR teams managing senior staff cannot afford to overlook. Importantly, earnings are assessed at the date of dismissal, not at any other point in the employment relationship, and the relevant figure is base salary plus certain other amounts, excluding superannuation and payments that cannot be determined in advance, such as bonuses and commissions.
Where a senior, award-free employee earns above $183,100 and is not covered by a modern award or enterprise agreement, the Commission will resolve that eligibility question first, before it ever considers whether the dismissal itself was justified. Confirming an employee's award coverage status and earnings against the current threshold should be a standard early step in any senior staff termination process.
