Unfair Dismissal: Maturu v Leica Geosystems Pty Ltd  FWCFB 6735
High income threshold: broadband use not counted as income
The Full Bench of the Fair Work Commission (FWC) has recently overturned a decision that an employee was not protected from unfair dismissal because he was provided with broadband service whilst at home and was therefore over the high income threshold.
At the time of the employee’s dismissal, the high income threshold for unfair dismissal was set at $129,300. Whilst the employee’s income of $129,000 was under this threshold, the employer argued that the provision of a laptop, mobile and broadband service pushed the employee’s income over the threshold and he was therefore not protected from unfair dismissal.
The FWC found that the laptop and mobile phone were only used for work purposes and should not be added to the employee’s income. However, there was evidence that the employee used the broadband service whilst at home for his own personal use. The FWC assigned a personal usage value of $800 per year to be added to the employee’s income. This made the employee’s annual salary $129,800 which was therefore $500 over the high income threshold and meant that the employee was not protected from unfair dismissal. The employee appealed the decision to the Full Bench of the Fair Work Commission.
The Full Bench overturned the FWC’s decision. It found that there was no agreement between the parties in relation to personal use of the broadband service. Whilst the employer may have taken disciplinary action against the employee for his personal use of the broadband service, as there was no agreement regarding the broadband service, no value for it could be added to the employee’s income. The employee’s income was therefore assessed as $129,000 and the matter was returned to the FWC for a decision on unfair dismissal.
The Full Bench recognised that the area involving non-monetary benefits was one the “subject of few authorities.” They were hopeful that their decision would provide some guidance in relation to the issue in the future.
This case demonstrates the need for non-monetary benefits to be in writing and for both parties to agree to the value before they can be included in an employee’s income. Employers should be careful to stipulate in writing the agreed value of benefits such as mobile phones, laptops and cars that are given to employees for work purposes.
* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training. They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.