Fair Work computes manager's earnings amid confusion
The Fair Work Commission (FWC) recently dealt with a manager’s claim that he was unfairly dismissed via email. Meanwhile, the employer argued that he was not protected under the Fair Work Act since his salary exceeded the required income.
Jason Grinstead filed a dismissal with the FWC, seeking redress for an alleged unfair dismissal by his former employer, Orbelo Pty Ltd (Orbelo). Orbelo contested the Commission's jurisdiction to address the matter.
Representing himself, Grinstead appeared in the proceedings, while Orbelo was legally represented. Grinstead served as an occupational safety and health manager, starting his employment in July 2022 and concluding on August 16, 2023.
His termination was notified via email on September 11, 2023, citing abandonment of employment as the reason, which he disputed. Employed at a former mining site in Gympie, Queensland, Grinstead commuted from Canberra on a fly-in-fly-out basis.
He said his employment was terminated unfairly as he did not abandon his job but was unable to return due to Orbelo's actions. He alleges that Orbelo's failure to acknowledge his employment status led to salary discrepancies and a lack of notice.
Remedies for unfair dismissal
Regarding remedies for unfair dismissal, the FW Act allows for reinstatement or compensation if the Commission deems the dismissal unfair.
Furthermore, an employee is protected from unfair dismissal if certain criteria are met, including coverage by a modern award or earning below the high-income threshold.
Grinstead was able to satisfy the minimum employment period but disputed Orbelo's claim that he was not covered by an award or agreement and earned above the high-income threshold. His argument hinged on coverage under the Mining Industry Award 2020 and his income level.
Evidence presented included Grinstead's duties beyond his managerial role and statements from Orbelo's officers outlining his responsibilities. Orbelo provided Grinstead's employment contract, which mentioned compliance with the Mining Industry Award but did not determine coverage.
The Commission found that Grinstead's role did not align with the classifications specified in the Award, thus not covered by it. Additionally, based on his contract and earnings, Grinstead's income exceeded the high-income threshold.
Manager exceeded high-income threshold
To compute if an employee’s pay exceeds the high-income threshold, the FWC said that it must consider the sum of the person’s annual rate of earnings and other amounts calculated in accordance with the regulations. The said amount must be less than the high-income threshold, which is $167,500.
The employer relied upon his contract, which stated that his salary was $168,000. On the other hand, Grinstead said that the last payslip issued by Orbelo for the financial year between July 1, 2022, and 30 June 2023, listed his gross earnings for the year as $167.209.94.
He said that “while this gross amount is less than the amount he was contracted to receive, it is the best reflection of his annual remuneration.” Grinstead provided a copy of the payslip. The FWC found that it was for the fortnightly pay period from 5 June 2023 to 18 June 2023 and indicated that the payment date was 19 June 2023.
“Consequently, the year-to-date figure of $167,209.94 was not for the full financial year. The payslip otherwise records Grinstead’s annual salary as $168,000. It records that in that fortnight, Grinstead was paid $6,461.54. Multiplying that figure by 26 for each of the fortnights in a year gives annual earnings of $168,000,” the FWC said.
Consequently, the FWC said that Grinstead’s annual earnings for the purpose of the FW Act were not less than the high-income threshold.
Thus, despite indications of harsh treatment by Orbelo and potential breaches of contractual and statutory obligations, the Commission concluded that Grinstead was not protected from unfair dismissal in the Act. Therefore, no remedy for unfair dismissal was granted, and the application was dismissed.
