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[73]
[2026] FWC 331
General information, not legal advice.
Fair Work Commission
2026-02-05
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - jurisdictional objection - high income threshold exceeded - applicant covered by a Modern Award - jurisdictional objection dismissed.
[1] Dr Jennifer Weber has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) (Act) against her former employer, Caroline Chisholm Society (CCS). CCS is a not-for-profit organisation that specialises in helping women during pregnancy and after pregnancy. Dr Weber was the Chief Executive Officer of CCS up until 14 February 2025.
[2] This decision concerns whether Dr Weber is excluded as a person protected from making an unfair dismissal application on the basis of section 382(b) of the Act, which relevantly requires, firstly, Dr Weber's annual rate of earning to be less than the high income threshold or, secondly, to be covered by the Social, Community, Home Care and Disability Services Industry Award 2020 (Award).
[3] There are a great deal of other matters in dispute between the parties, which are for the most part unnecessary to go into, save that one central aspect of Dr Weber's claim that faintly permeates the issues in this decision, which is a denial by CCS of Dr Weber's request to return to work on a graduated basis following a period of sick leave, including as a reasonable adjustment under the Disability Discrimination Act 1992 (Cth) (DDA). I return to this below, as it is a matter relevant to the future conduct of this matter in light of the fact Dr Weber has also commenced a claim for relief under the DDA in the Federal Circuit and Family Court of Australia (FCFCOA).
[4] For the reasons that follow, I am satisfied that while Dr Weber's annual rates of earnings exceeded the high income threshold, she was covered by the Award.
[5] CCS has a history extending back to 1969. It was originally established in the eastern suburbs of Melbourne as a network of women who would support at-risk and vulnerable women experiencing homelessness or isolation due to pregnancy and lack of other support. That network included a 24-hour telephone number, home help, material aid and volunteers making room available in their homes as emergency accommodation. The network extended to women from the Goulburn Valley in Victoria. With support from the Chisholm family at the time, the network changed its status to a public company limited by guarantee in 1970.
[6] CCS remains a non-for-profit company limited by guarantee. Its current constitution appears to have been most recently adopted on 2 October 2008. The objects and purpose clause of the constitution states that CCS is a non-denominational, non-political body which supports women who wish to continue their pregnancies to term and gives on-going family support in the areas of pregnancy, childbirth and early childhood. The constitution contains an enumeration of the society's objectives and a greater enumeration of its powers that might be exercised in carrying out its objects. Those powers necessarily include the employment of staff, for whom there is a specific authorisation in the constitution for payment of staff.
[7] The constitution provides for 200 members, whose number might be increased from time to time by the board.
[8] The constitution provides for the establishment of a board. The board is to consist of not less than seven and not more than twelve directors. From the board, a director shall be appointed to the office of President, Vice President, Secretary, Assistant Secretary, and Treasurer. A director must also be a member.
[9] Subject to the Corporations Act 2001 (Cth) and the constitution, the management and control of the business and affairs of CCS are vested with the board. Directors are not permitted to be paid director's fees.
[10] The board is to meet monthly unless determined otherwise. The board can establish sub-committees, which are to consist of members of the board. Other persons may be appointed to such sub-committees on an advisory and non-voting capacity.
[11] The activities of CCS are described in a board briefing paper, prepared for new board members, in October 2023. That paper describes the evolution of CCS "from a volunteer led pregnancy support services to a professionally led organisation" with the responsibility to deliver on a contract with the Victorian government Department of Families, Fairness and Housing (DFFH). The paper identifies that the activities of CCS operate across three broad areas of Melbourne respectively centred at Essendon, Caroline Springs and Shepparton. The CCS owns substantive properties at the first two of those locations.
[12] At least as at October 2023, the operating budget of CCS was $2.7 million and was responsible for 27 staff, excluding volunteers. The 2023-2024 annual report stated that CCS' revenue was $3.1 million for 2023, with revenue from a contract with the DFFH comprising $2.5 million. The annual report described net assets of approximately $4.4 million, with outright ownership of the two properties referred to above and a fleet of vehicles. In addition to staff, there are also a similar number of volunteers associated with CCS. The evidence indicates the number of volunteers was, at least around 2024, approximately 30 although I assume it fluctuates.
[13] Dr Weber commenced employment with CCS in November 2017. She was appointed as an interim Chief Executive Officer in April 2019 and substantively appointed to that role in September 2019.
[14] During Dr Weber's tenure as an interim CEO, CCS prepared a position description for the CEO role. The position description in the evidentiary material is dated 19 July 2019, so I infer it was provided to her at around that time. Dr Weber's evidence, which I accept on the point, is that the position description was not varied during her subsequent tenure.
[15] Much of the position description reflects (as I consider was the reality) that the position of CEO was, in a real sense, the position primarily responsible for managing CCS and guiding the organisation. The responsibilities include governance, financial performance, execution of mission and strategy, and operations.
[16] The position description reflected a broadly typical delineation between the board and the staff. The 'accountabilities' section stated that the CEO would report to the President of the board and key performance indicators would be agreed from time to time with the board.
[17] Dr Weber's substantive appointment as CEO in September 2019 (the 2019 contract) was formalised by a three-year employment contract. Clause 2 of the 2019 contract was titled "Position and Duties of the Employee".
[18] Clause 2.2 of the 2019 contract stated that Dr Weber's "Award Classification is set out" in the schedule. Item 5 of the schedule provided an "Award Classification" as being "Level 8 Pay Point 3 Social, Community, Home Care and Disability Industry Award 2010". The clause also states "Although the Award applies to Your employment in the Position, the Award is not incorporated into this Agreement". Clause 18.8 further provides an acknowledgment by Dr Weber that she had "received a copy of the Fair Work Information Statement".
[19] The "primary duties and responsibilities" of the CEO position - defined in the 2019 Contract as the "Duties" - were referrable to the position description (albeit that document was not incorporated into the contract): clause 2.4. Clause 2.5 states that continuing employment required meeting CCS' performance requirements, including those in the position description.
[20] Clause 2.6 provided that, in addition to the Duties, Dr Weber was required to (among other matters) undertake other duties and responsibilities from time to time, as directed by CCS, and attend Board or other governance meetings with the "Chief Executive Office" as directed. There was no definition of the Chief Executive Office.
[21] Under the 2019 contract, Dr Weber's salary was $130,000 gross, exclusive of compulsory employer superannuation contributions. There were two 'Additional Benefits', being a monthly appointment with a qualified external supervisor and access to a work vehicle, "including for reasonable personal use", subject to CCS policies.
[22] The maximum term date for the 2019 contract was 30 June 2022.
[23] On 1 September 2022, a further contract was executed for Dr Weber's employment (2022 contract). The maximum term date for the 2022 contract was 31 August 2023.
[24] The provisions of the 2022 contract were materially the same as the 2019 contract. Some changes were:
[25] The 2022 contract also provided that the car and mobile telephone must be returned on reasonable request, which may include return "during periods of prolonged leave".
[26] Dr Weber's third and final employment contract was signed on 18 August 2023 (2023 contract). It followed the same general structure as the 2019 contract and 2022 contract, including for the application of the Award to Dr Weber's employment and position description. The schedule to the 2023 contract stated that Dr Weber's Award classification was Level 8 Pay Point 3 of the Award. It stated that she reported to the Board. Her contractual remuneration was $170,163 gross, exclusive of compulsory employer superannuation contributions. The additional benefits (car, mobile telephone, external supervisor) were the same as the 2022 contract. I also note that there appeared to be significant taxation benefits associated with salary packaging, consistent with CCS' status as a public benevolent institution for tax purposes.
[27] The parties led further evidence about the nature of work performed by the CEO and direction by the Board or directors in relation to that work. Dr Weber gave evidence for herself. Ms Lolou Kini gave evidence for CCS. Ms Kini was CEO of CCS following the cessation of Dr Weber's employment. Ms Kini was initially employed by CCS in September 2023 as its Business Manager, reporting to Dr Weber as CEO.
[28] Dr Weber's written evidence sought to provide an estimate of the time she spent on a daily basis for various tasks. Noting the challenges in providing such evidence, I find her estimates plausible having regard to her contracted position and the nature and size of the organisation. Broadly speaking, Dr Weber estimates she spent about 20 percent of her time on daily staff meetings and 1:1 supervision of direct reports, 20 percent on secretariat support to the board (including preparation of board packs and attending meetings) and company secretarial functions, 40 percent on funding and stakeholder engagement, 10 percent on program management, five percent on contract management and HR recruitment, and five percent on policy and compliance.
[29] Much of Ms Kini's written evidence and Dr Weber's oral evidence was really directed at emphasising the independence of the CEO from the Board (Ms Kini's evidence) or the close connection and oversight by the Board (Dr Weber's evidence). For the reasons that follow, I do not consider it necessary to resolve these differences. Suffice to say, noting again the relatively small size of the organisation and the monthly board meetings, my expectation is that engagement between the CEO and the Board members (especially the Chairperson) would be fairly frequent. I have little doubt from time to time that the Board or one of its members would proffer views, including strong views, on broad and narrow issues. But I do not consider the resolution of the nuance of such interactions affects my conclusions that follow on the Award coverage issue.
[30] On the high-income threshold issue, CCS focused on a period of about eight months from June 2024 to February 2025, when Dr Weber did not work. During that period, it is uncontroversial that Dr Weber drove the CCS-issued car about 12,600km. Dr Weber said in her oral evidence that the "vast majority" of that travel was for appointments she had to have for her return-to-work plan and her WorkCover claim. I consider Dr Weber's evidence on that issue inherently implausible and it is not supported by evidence she led nor further questioning in cross-examination. The best evidence of travel associated with those appointments or WorkCover claim (even if it were to be considered work-related use) was a few hundred kilometres. I conclude that Dr Weber's personal usage was therefore approximately 12,000km for that eight month period.
[31] CCS extrapolated that annual usage would be about 16,800km. It is not clear why actual usage figures were not available but this estimate was not cavilled with. Perhaps unrealistically assuming that the balance of the use was 100 percent for work purposes, that leads to a conclusion that over a 12 month period, the percentage of travel for private use was approximately 70 percent or maybe 75 percent.
[32] I would make a similar finding for Dr Weber's usage of her work-issued mobile telephone for the 12 month period, namely approximately 8 months of that usage was for personal usage. The value of that amount is approximately $400.
[33] Also in connection with the high-income threshold issue, Dr Weber contends there were various discretionary matters that warrant excluding the above amounts as being attributable to personal use. The factual matters said to underpin the exercise of any discretion were a contention Dr Weber was "underpaid, CCS failed to comply with its FBT reporting obligations and then sought to punish Dr Weber, and the Applicant was excluded from the workplace for an extended period of time against her will and against her doctor's recommendations."
[34] The issue that Dr Weber was being "punished" is intrinsically bound to the substantive case in the Fair Work Commission and in her court claim. The events go back to at least 2022. As noted above, the 2022 contract was a 12 month effective term. Dr Weber states that the effective duration of 12 months for her second CEO contract was due, at the time, to purported 'whistleblower' complaints having been made against her and CCS. Dr Weber's Form F2 application states she was cleared of any wrongdoing. She then states a different complaint (she does not know the details) was made to the DFFH. That in turn ultimately led to adverse findings against CCS by DFFH in relation to CCS' compliance with its service requirements. Dr Weber is critical of CCS' handling of the matter.
[35] In June 2024, Dr Weber made a formal bullying complaint against the Chairperson of CCS (and in other material in Dr Weber's evidence, she says her complaints had been raised with board members on multiple occasions in the previous two years and were not limited to the same Chairperson against whom the formal complaint was made). Dr Weber's grievance asserts inaction regarding her complaint, causing her health to suffer and take sick leave. A certificate of capacity dated 30 July 2024 certified no capacity to work from 29 July 2024 to 25 August 2024. On 17 July 2024, Dr Weber lodged a WorkCover claim. That claim was rejected on 13 August 2024, which was a matter being challenged by Dr Weber. Also in August 2024 or perhaps slightly later (the exact timing isn't clear), Dr Weber sought to return to work on a part-time basis for a graduated period. That request was rejected because (in summary) CCS was of the view that the inherent requirements of her position required her full-time contracted hours.
[36] It is unnecessary to resolve these issues for the purposes of this jurisdictional objection, although key aspects of them appear to be central to the events that led to the end of the employment relationship. In particular, Dr Weber squarely contended (and still contends) that her request to work part-time was supported by her entitlements under the DDA as a 'reasonable adjustment'. In her statement of claim filed with the FCFCOA, she pleads numerous breaches of the DDA and loss flowing from those breaches, which I return to below.
[37] Beginning with the Award coverage issue, the principal focus of the parties was on clauses B.8.1(a) and (b) of Schedule B to the Award. They state (emphasis added):
"(a) A person employed as a Social and community services employee level 8 is subject to broad direction from senior officers and will exercise managerial responsibility for the organisation's relevant activity. In addition, employees may operate as a senior specialist providing multi-functional advice to either various departments or directly to the organisation.
(b) A person employed as a Social and community services employee level 8 will be subject to broad direction from management/the employer and will exercise managerial responsibility for an organisation. In addition, employees may operate as a senior specialist providing multi-functional advice to other professional employees, the employer, Committee or Board of Management."
[38] The principles for ascertaining if an employee's employment was covered by an award did not appear to be in dispute. Both parties agreed the 'principal purpose' test applied, although they clearly differed as to its application. CCS contends that Dr Weber was at the "apex" of the managerial employees and was therefore not subject to broad direction from any "senior officer" or from "management/the employer". CCS referred to an earlier decision in Cubillo v North Australian Aboriginal Family Violence Legal Service [2011] FWA 6818 (Cubillo) and says that (having regard to the observations at [35])) the issue of whether a "senior officer" is an employee is undecided. In Cubillo at [35], Commissioner Deegan said:
"The Employer argues that the reference to "senior officers" in Schedule B8.1(a) is an indication that the level is not intended to encompass an employee at the CEO level, where there is no more senior officer. The Applicant claims that this is not determinative and contrasts the use of the word "officer" in Schedule B8.1(a) with the reference to "senior employees" in the level 6 classification, asserting that the "officers" could be a reference to officers of the Board of the organisation."
[39] Having regard to Commissioner Deegan's consideration of the historical antecedents of the Award, it is difficult to conclude that she left the question open in her decision where she concludes, at [43], that "The history surrounding the making of the Modern Award indicates that it was intended to cover managerial positions in the social and community services sector of the type occupied by the Applicant. I can see no compelling reason to find that the Applicant's award coverage has been removed." The applicant in that case also enjoyed the title "Chief Executive Officer".
[40] Clause B.8.1 of Schedule B of the Award unhelpfully uses a number of different terms in contexts that are not particularly clear. Nonetheless, and in the interests of brevity, I reach the same position as Commissioner Deegan.
[41] There are a number of textual considerations in the Award that I consider shed light on the capacity of "senior officers" in clause B.8.1(a) of Schedule B to include members of a board.
[42] The next matter is whether Dr Weber operated under "broad direction" from a senior officer. The primary duties and responsibilities of Dr Weber are referrable to her contract of employment, which in turn referred to (non-exhaustively) her position description. While somewhat finely balanced, I am comfortably satisfied that the position description and Dr Weber's employment contract evinces sufficient ongoing interaction with and direction from the board that her role is properly described as operating under "broad direction" of a senior officer.
[43] Additionally, Dr Weber executed three consecutive contracts of employment, each stating that the Award applied to her employment. I consider such terms are relevant here. This is not to say that parties can purport to impermissibly include or exclude coverage of Award by dint of a contract term purporting to do so. Here, the situation is different. By agreeing to express contractual terms stating that the Award does apply, I consider that those contractual promises are intended to ensure that, in this case, Dr Weber was expected to be subject to broad direction from senior officers (clause B.8.1(a) or from the "the employer" (clause B.8.1(b)). Such a reading allows the contractual terms to be given their intended operation by ensuring that Dr Weber's duties and responsibilities were those reflected by the relevant classification clause of the Award.
[44] For the foregoing reasons, it is not strictly necessary to deal with the high-income threshold issue, as the Award coverage means that Dr Weber is a person 'protected from unfair dismissal': section 382(b) of the Act. However, as the parties addressed the issue I will deal with it briefly.
(i) annual distance: 16,800 (8 months' use extrapolated to 12 months' use);
(iv) estimate cost per kilometre for a vehicle of that type: 88 cents per kilometre (this is the ATO's number for FBT purposes); and
(v) multiply annual distance by cost per kilometre: 16,800 x 0.88 = $14,874."
[46] Dr Weber did not disagree with the applicable principles, although did take issue with the attribution of travel for her medical appointments and the like as being for private use. For this reason, I do not need to set out the relevant legislative references but instead refer to a recent summary of them in Lonnie v WA Council on Addictions Incorporated [2023] FWC 673 by Deputy President Beaumont. I also do not need to decide the issue of travel on account of medical appointments, although I doubt they would be considered work travel. But even excluding those amounts, I found earlier that Dr Weber's personal usage of the vehicle was 12,000km per annum in the 12 month period contended. Based upon an estimate of $0.88 per kilometre (which was not in dispute), the value of that personal usage for the vehicle was approximately $10,560 per annum.
[47] Dr Weber urged me to disregard these amounts because of alleged conduct of CCS. She relies on the third limb of regulation 3.05(6) of the Fair Work Regulations 2009 (Regulations). Relevantly, that part of the Regulation states (emphasis added):
(c) the FWC is satisfied, having regard to the circumstances, that:
(i) it should consider the benefit for the purpose of assessing whether the high income threshold applies to a person at the time of the dismissal; and
(ii) a reasonable money value of the benefit has not been agreed by the person and the employer; and
(iii) the FWC can estimate a real or notional money value of the benefit;
the real or notional money value of the benefit estimated by the FWC is an amount for subparagraph 382(b)(iii) of the Act."
[48] I do not consider that there is a discretionary element of the kind urged by Dr Weber to take into account matters such as the conduct she alleges. To do so would, in effect, require determination of substantive elements of the case as the matters are, in many respects, entwined. On a proper construction, that would be a peculiar outcome imposed by secondary legislation whose obvious purpose is aimed at providing simple and clear rules for ascertaining a discrete jurisdictional issue - namely an annual rate of earnings and other amounts for comparison against the high income threshold. I am fortified in this conclusion by section 396 of the Act, which requires the issue of whether a person was protected by unfair dismissal to be considered before the merits of the application.
[49] For the forgoing reasons, as Dr Weber's agreed salary was $170,163, the monetary benefit of her vehicle for personal use - being an additional $10,560 - readily takes her total annual earnings above the high income threshold that applied at the time, which was $175,000.
[50] There are presently two substantive legal applications by Dr Weber concerning her requests to return to work on a graduated basis and the cessation of her employment. The matter before me is one and the matter in the FCFCOA is another. There is potentially a third matter concerning a challenge to Dr Weber's WorkCover determination.
[51] Dr Weber's FCFCOA pleading was in evidence before me. In that pleading, Dr Weber alleges that the refusal of Dr Weber's requests to work part-time constituted a contravention of the DDA. By reason of that contravention, Dr Weber pleads loss, damage and injury. The particulars of that pleading identified non-economic loss and economic loss. The economic loss claim includes lost wages for the period from 9 September 2024 to the end of the 2023 Contract being 31 August 2026.
[52] An unfair dismissal application in the Fair Work Commission is, strictly, an application for an unfair dismissal remedy: section 394(1). In the Commission, the remedies Dr Weber can seek are reinstatement (potentially coupled with a monetary order for lost pay) or, in lieu of reinstatement, compensation. Compensation is generally based on wages that would have been earned: see section 392 and the oft-cited decision of the Full Bench in Sprigg v Paul's Licensed Festival Supermarket [1998] AIRC 989; (1998) 88 IR 21. Non-economic loss for shock, distress or humiliation cannot be ordered: section 392(4).
[53] In Dr Weber's Form F2 application, she is not seeking reinstatement. For monetary compensation, she is seeking six months' lost wages, which appears to reflect the statutory compensation cap in the Commission: section 392(5).
[54] It appears that the entirety of the relief that could be obtained by Dr Weber in the Commission is a complete subset of the economic loss sought in her FCFCOA claim. Further, in the evidence before me so far, there also appears to be some direct overlap between her DD Act claims concerning Dr Weber's part-time work request and the circumstances said to have led to her dismissal and rendering it unfair. The Commission cannot make a judicial determination of Dr Weber's DD Act claims. Suffice to say, if there was a judicial finding that the DD Act was contravened, that would plainly be relevant to the Commission's assessment of whether the dismissal was unfair.
[55] In circumstances where there is an application before a court that can judicially determine Dr Weber's DD Act claim and where the relief sought in the Commission appears to be a complete subset of wider relief sought from the court, my tentative view is that the matter in the Commission should be stayed pending judicial resolution of the DD Act claims and relief. Before any decision on that is made, I intend to refer the matter before me to another member of the Commission for conciliation. Having regard to the multiple litigation fronts on foot, I urge the parties to make serious efforts to resolve their claims. That conciliation may result in all matters resolving. If it does not - or at least the application for an unfair dismissal remedy does not resolve - the parties will be given an opportunity to make submissions on the appropriate future conduct of this proceeding.
T. Pick of Hector Douglas HR Legal Pty Ltd for the Applicant.
N. Harrington of counsel, instructed by Lander & Rogers for the Respondent.
[1] Print Q0675, Australian Industrial Relations Commission, Ross VP, Watson SDP and Commissioner Bacon, 7 May 1998.
Printed by authority of the Commonwealth Government Printer
Dr Jennifer Weber
Caroline Chisholm Society [2026] FWC 331
(1998) 88 IR 21