s.394 - Unfair dismissal

Application for unfair dismissal remedy - jurisdictional objection - whether annual earnings above high-income threshold - Applicant's annual earnings found to be below the high-income threshold - jurisdictional objection dismissed

[1] On 19 November 2025, Mr David Taylor (the Applicant) lodged an unfair dismissal application seeking remedy in relation to the termination of his employment with Baam Property Group Pty Ltd (Baam).

[2] Baam objects to the FWC dealing with the application on the basis that Mr Taylor's annual rate of earnings at the time of dismissal was above the high-income threshold which was $183,100 at that time.

[3] Mr Taylor was engaged by Baam as its Regional Operations Manager. He commenced employment in May 2024 and his employment ended on 10 November 2025.

• [4] It is not in dispute that at the time of dismissal, Mr Taylor was on an annual base salary of $143,000.00 per annum.[1] However, the total renumeration package of Mr Taylor is contested.

• [5] Baam's position is that Mr Taylor's total renumeration package also included superannuation contributions ($17,160.00), an annual car allowance of $23,500.00, and a KPI bonus of $24,300.00.[2] They argue that inclusive of these amounts the total annual earnings of Mr Taylor amounted to a sum of $207,960.00, which is above the high-income threshold. I note that Baam has calculated this as $197.960.00,[3] however, I take that to be a mathematical/typographical error and assume that they submit that Mr Taylor's total remuneration package amounted to a sum of $207,960.00.

[6] Section 382 of the Fair Work Act 2009 (Cth) ('the Act') provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high-income threshold.

[7] It is not in dispute that Mr Taylor has completed the minimum employment period. Mr Taylor does not contend he is covered by a Modern Award or an enterprise agreement, therefore, to be protected from unfair dismissal, the requirements of 382(b)(iii) must be met.

[8] At this preliminary stage, the parties are in dispute about whether Mr Taylor's annual rate of earnings is less than the high-income threshold. Baam has also raised a jurisdictional objection that the dismissal was a case of genuine redundancy; however, this decision concerns only the high income threshold jurisdictional objection. If I am not satisfied this is the case, the application must be dismissed.

[9] The parties were directed to file evidence and submissions on the question of whether Mr Taylor's annual earnings were less than the high-income threshold by 19 February 2026. On review of the material filed, I invited the parties to indicate whether they wished to be heard further at a Hearing or were content for the Commission to determine this jurisdictional question on the material filed with the Commission. Neither party requested to be heard further.

[10] I have considered all the material and submissions provided by the parties and for the reasons set out below, I am satisfied Mr Taylor's annual rate of earnings is less than the high-income threshold for the relevant period.

Were Taylor's annual earnings over the 183,100 high-income threshold at the time he was dismissed?

[11] Section 333 of the Act provides that the high-income threshold is the amount prescribed by or worked out in the manner prescribed in the regulations. Regulation 2.13 of the Act provides that as of 1 July 2025 the figure was $183,100.

[12] Section 332 of the Act defines 'earnings' as follows:

(a) the employee's wages; and

(b) amounts applied or dealt with in any way on the employee's behalf or as the employee directs; and

(c) the agreed money value of non‑monetary benefits; and

(d) amounts or benefits prescribed by the regulations.

(2) However, an employee's earnings do not include the following:

(a) payments the amount of which cannot be determined in advance;

(b) reimbursements;

(c) contributions to a superannuation fund to the extent that they are contributions to which subsection (4) applies;

(d) amounts prescribed by the regulations.

Note: Some examples of payments covered by paragraph (a) are commissions, incentive based payments and bonuses, and overtime (unless the overtime is guaranteed).

[13] Subsection (3) deals with non-monetary benefits. Subsection (4) in effect provides that superannuation contributions an employer is required to make under relevant superannuation legislation are not considered earnings for the purposes of the Act.

[14] Baam submitted that Mr Taylor's earnings comprised the following:

[15] The sum of the above figure amounts to $207,960.00. Baam's position is that each of the amounts additional to Mr Taylor's base salary should be considered earnings consistent with the provisions of s.332 and counted towards Mr Taylor's total annual earnings, taking them beyond the high-income threshold. It is not in dispute that Mr Taylor's base annual salary for the relevant period was an amount of $143,000.00.

[16] Baam did not submit any witness statements and indicated that it did not intend to call any witnesses.

• [17] Mr Taylor submits that his total earnings at the time of his termination for the purposes of Act was his base salary of $166,500.00.[4] Mr Taylor submits that he received a fully maintained vehicle with an assigned monetary value of $23,500.[5] It can be adduced from his submissions that he is of the view that this monetary value should be counted as earnings for the purposes of the Act.[6] His position is that superannuation is excluded from earnings under the Act.[7] It can also be inferred from Mr Taylor's submissions that he submits that the bonus valued at $24,300, was not part of his earnings.[8] On this basis, he submits Baam's jurisdictional objection should be dismissed, and that he is a person protected from unfair dismissal.[9]

[18] Baam made no additional submissions with respect of the payments made to Mr Taylor in relation the superannuation. Relevantly, I am satisfied these payments are not considered earnings for the purposes of s.332 by virtue of the provisions in s.332(4) identified above.

[19] The key issue to determine in this case is whether the KPI Bonus payment received by Mr Taylor should be included as earnings.

• [20] I make this assessment because even if I accept Baam's submission that the $23,500.00 Mr Taylor received from the vehicle allowance, which I do not, Mr Taylor's earnings remain below the threshold. The correct assessment I am required to make with respect of the payments received by Mr Taylor for the use of his motor vehicle is to determine the proportion of the allowance that can be considered attributable to personal use.[10]

[21] Only such amounts are considered earnings for the purposes of the Act are included in the calculation of annual earnings. In the present case, neither Mr Taylor nor Baam has made any further submissions with respect to the proportion of the $23,500.00 received by Mr Taylor that can be attributed to payment for the personal use of his vehicle. Despite this being the case, for the reasons identified above, I am not required to determine this question to finalise this matter.

[22] Mr Taylor received $24,300.00 as KPI Bonus payments. Section 332(2)(a) makes clear that payments that cannot be determined in advance are not to be considered earnings. Neither Mr Taylor nor Baam made specific submissions as to whether the KPI Bonus payments should or should not be considered earnings for the purposes of the Act.

• [23] Mr Taylor's Letter of Appointment dated 1 July 2025 provides the following details about the Bonus Structure:[11]

"Your bonus structure will be as follows, and applies as of the 1st of July 2025, if all aspects of below outlined business developments are met, as of the 1st of July 2026 you will achieve a bonus equivalent to 10% of your base annual salary as a one-off bonus payment to be made prior to the end of July 2026. In addition to this your base salary will be increased to $155,000.00pa."

[24] On the evidence before me, it is clear that the KPI Bonus was contingent upon Mr Taylor meeting certain business development targets. Accordingly, the amount cannot be determined in advance because the amount payable depends on events that are not certain to occur.

• [25] Baam has not provided me any information or submission to established that the KPI Bonus payments made to Mr Taylor was guaranteed to be received by him. Or to put this another way, that the $24,300.00 was not at risk if Mr Taylor did not meet the agreed targets. This being the case, I reject Baam's submission that this payment should be included in my calculation of the Mr Taylor's total annual earnings for the purposes of the high-income threshold. This is not the correct approach, as Commissioner Simpson identified in Duffy v Enermech Pty Ltd,[12] and Commissioner Connolly recently identified in Moutsias v Network RV Pty Ltd.[13]

[26] Because of this conclusion, I am satisfied that the evidence before the Commission in this case establishes that Mr Taylor's total annual earning was an amount of $143,000.00, an amount below the high-income threshold.

[27] Accordingly, the jurisdictional objection is dismissed. The application will now proceed to the determination of the genuine redundancy jurisdictional objection. The matter will be listed for a case management conference a Notice of Listing will be in due course.

[1] P.18 of the DHB - Witness Statement of Mr David Taylor; P.55 of the DHB - Letter of Appointment.

[4] P.18 of the DHB - Witness Statement of Mr David Taylor.

[5] P.14 of the DHB - Applicant's Submissions.

[6] P.18 of the DHB - Witness Statement of Mr David Taylor.

[7] P.18 of the DHB - Witness Statement of Mr David Taylor.

[8] P.18 of the DHB - Witness Statement of Mr David Taylor.

[9] P.18 of the DHB - Witness Statement of Mr David Taylor.

[10] See Sam Technology Engineers Pty Ltd v Andrew Bernadou [2018] FWCFB 1797 at [72].

[11] P.55 of the DHB - Letter of Appointment.

[12] [2025] FWC 1670.

[13] [2026] FWC 159.

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