Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - high income threshold - whether protected from unfair dismissal - applicant's annual rate of earnings above the threshold - jurisdictional objection upheld - applicant not protected from unfair dismissal

[1] On 21 November 2025, Mr Graeme Kentish made an application to the Fair Work Commission (the Commission) to remedy an unfair dismissal alleging that his dismissal by Master Butchers Co-Operative Limited (Master Butchers) on 6 November 2025 was unfair.

[2] Master Butchers raised a jurisdictional objection on the basis that Mr Kentish's annual rate of earnings was over the high income threshold at the relevant time and therefore he was not eligible to make an unfair dismissal application.

• [3] At the time of his dismissal, Mr Kentish was employed by Master Butchers as the Financial Controller and Company Secretary.[1]

• [4] A person is protected from unfair dismissal if, at the time of dismissal, they have completed the minimum employment period and an award or enterprise agreement applied to the person, or the sum of the person's annual rate of earnings and certain prescribed benefits is less than the high income threshold.[2]

[5] There is no dispute that Mr Kentish met the minimum employment period at the time of the dismissal.

• [6] Similarly, it is accepted by both parties that neither an award, nor enterprise agreement applied to Mr Kentish's employment with Master Butchers.[3]

• [7] The high income threshold at the time of Mr Kentish's dismissal on 6 November 2025, was $183,100.[4]

• [8] Accordingly, I must determine Mr Kentish's annual rate of earnings to determine whether he was protected from unfair dismissal.[5]

• [9] It is well established that the annual rate of earnings refers the quantum of the salary at the time of the dismissal rather than the amounts earned in the 12 months prior to the dismissal.[6]

[10] 'Earnings', as defined in section 332 of the Act, includes wages and amounts applied or dealt with in any way on the employee's behalf or as the employee directs, the agreed money value of non-monetary benefits and amounts or benefits as prescribed by the regulations. It does not include payments the amount of which cannot be determined in advance, reimbursements or statutory superannuation contributions.

[11] The Act further defines non-monetary benefits as benefits other than an entitlement to a payment of money:

(a) to which the employee is entitled in return for the performance of work; and

(b) for which a reasonable money value has been agreed by the employee and the employer

but does not include a benefit prescribed by the regulations.[7]

[12] The Fair Work Regulations at 3.05 (6) states that:

(a) the person is entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person's employer; and

(b) the benefit is not an entitlement to a payment of money and is not a non - monetary benefit within the meaning of subsection 332(3) of the Act; and

(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.

[13] It is uncontroversial that Mr Kentish's base salary was $155,000 at the time of dismissal.

[14] The dispute between the parties regarding Mr Kentish's earnings relate to a $10,000 per annum salary increase for the performance of the Company Secretary role and private usage of a motor vehicle provided by Master Butchers.

• [15] I accept Mr Kentish's evidence that there was no written contract between the parties stating that he would be paid an additional $10,000 per annum to perform the role of Company Secretary.[8]

• [16] However, it is clear from the evidence that before Mr Kentish was offered the role of Company Secretary, he was advised of the $10,000 per annum that he would receive should he accept the role, and he accepted the role of Company Secretary on that basis.[9]

• [17] A resolution was passed at a Board meeting giving effect to Mr Kentish's acceptance of the role, an updated job description was signed by Mr Kentish, he commenced the performance of Company Secretary duties, and was, albeit late, paid the amounts owed to him for performing that role.[10]

[18] Accordingly, I find that at the time of dismissal, Mr Kentish's salary at the time of dismissal for performing his role of Financial Controller and Company Secretary was $165,000 per annum.

[19] Mr Kentish was provided with a fully maintained vehicle by Master Butchers as a result of his employment. Master Butchers assert that the value of the private use of that vehicle should be included in Mr Kentish's annual rate of earnings.

[20] There was no assertion by Mr Kentish that the non-monetary benefit of private use of the vehicle should not be considered in determining his annual rate of earnings, but he did dispute the kilometres travelled and the percentage of private use alleged by Master Butchers.

• [21] It was not in dispute that the cost of the vehicle per annum to Master Butchers was $22,014[11] and that Mr Kentish was able to use the car for personal use.[12]

• [22] In the absence of an agreed sum, the test adopted by the Commission that was established in Kunbarllanjnja v Fewings[13] to calculate the value of private use of a motor vehicle is as follows:
  1. Determine the annual distance travelled by the vehicle in question.
  2. Determine the percentage of that distance that was for private use.
  3. Multiply the above two figures to obtain the annual distance travelled for private purposes.
  4. Estimate the cost per kilometre for a vehicle of that type (may be obtained from RACV, NRMA or other similar motoring association).
  5. Multiply the annual distance travelled for private purpose (obtained at step 3) by the estimated cost per kilometre.

[23] I find that in the circumstances it is appropriate to adopt the approach in Fewings referred to by Master Butchers in their submissions. Mr Kentish did not object to this approach during the course of the proceeding.

• [24] No logs books of kilometres travelled for work purposes were kept, therefore only estimations could be provided by the parties. It is not in dispute between the parties that there were around 10,000 kilometres travelled in the vehicle annually.[14]

[25] There was conflicting evidence regarding the percentage of that distance that was for private use by Mr Kentish.

• [26] Master Butchers provided evidence from an accounting firm based on the company records provided to that firm which estimate that approximately 89% of the 10,000 kilometres travelled by Mr Kentish were for personal use.[15]

• [27] Mr Higgins, CEO, who gave evidence on behalf of Master Butchers during the proceeding, provided an estimation of 80% which he said was calculated by using the Google Maps' distance between Mr Kentish's home and the office multiplied by the number of the working days within the period to obtain the personal kilometres travelled.[16] This is a very conservative estimate as it does not factor in any weekend or personal travel undertaken in the vehicle by Mr Kentish in addition to his travel to and from work.

• [28] Mr Kentish told the Commission that during the period of November 2024 to March 2025, his personal usage of the vehicle would have been around 80%, and between March 2025 and the end of October 2025, it would have been 90%.[17] His evidence was that an appropriate overall estimate for his private usage of the vehicle 12 months prior to the dismissal would be an estimate of 84%.

[29] I consider this to be a conservative estimate given that there were more than half of the months in the preceding 12 months that Mr Kentish estimates 90% private usage.

[30] However, using Mr Kentish's own conservative estimate of 84% of the kilometres travelled being for private use and applying the formula in Fewings, I can estimate the notional money value of the benefit as follows:

• The annual distance travelled, 10,000km, multiplied by the percentage of personal use, 84% it equates to 8,400kms of annual personal travel.
• The vehicle Mr Kentish had access to appears in the RACV or NRMA cost per km schedules. As the actual cost to Master Butchers of the vehicle was $22,014 per annum and that is not in dispute, I find it appropriate to use that as the annual figure.
• Dividing the actual cost of $22,014 per annum by the kilometres travelled of 10,000km per annum = $2.20 per km
• When the annual distance travelled by Mr Kentish for private use, 8,400kms, is multiplied by the cost per kilometre, $2.20 it equals $18,480.00.

[31] Once this amount is added to the $165,000 salary determined above, Mr Kentish's annual rate of earnings is $183,480.00.

[32] Even based on the evidence and submissions advanced by Mr Kentish in respect of the vehicle allowance, his annual rate of earnings at the time of dismissal was over the high income threshold.

[33] It is quite likely that the percentage of annual personal use of the vehicle was a little higher but it is not necessary to determine that when the case advanced by Mr Kentish in this respect has him over the high income threshold in any event.

[34] As Mr Kentish's annual rate of earnings is over the high income threshold, the jurisdictional objection is upheld and his application to remedy an unfair dismissal is dismissed.

• [35] An order giving effect to this decision will be issued in conjunction with its publication.[18]

C. Whitehouse on behalf of the Respondent, Master Butchers Co-Operative Limited.

[1] Digital Hearing Book ('DHB'), pp. 89 - 92; Audio Recording of Hearing at 17:01 - 17:23 and 33:26 - 33:34.

[2] Fair Work Act 2009 ('The Act'), s. 382.

[3] Audio Recording of Hearing at 3:04 - 3:41.

[4] The Act_,_ s. 333_; Fair Work Regulations 2009_ ('Fair Work Regulations'), reg. 2.13.

[6] Lynch v Allegra Consulting Group Pty Ltd [2020] FWC 5363; Zappia v Universal Music Australia Pty Limited t/a Universal Music Australia [2012] FWAFB 6108.

[8] Audio Recording of Hearing at 59:18 - 59:32.

[9] Audio Recording of Hearing at 17:42 - 17:51 and 35:24 - 35:35.

[10] Annexures JH-6 and JH-9 to Statement of J Higgins, pp.78, 89 of DHB; Audio Recording of Hearing at 48:25 - 50:27.

[11] Audio Recording of Hearing at 45:06 - 45:20.

[12] Audio Recording of Hearing at 22:45 - 25:12 and 37:46 - 37:54.

[13] Sam Technology Engineers Pty Ltd v Bernadou [2018] FWCFB 1767; Kunbarllanjnja Community Government Council v Fewings Print Q0675 (AIRCFB, Ross VP, Watson SDP, Bacon C, 7 May 1998) ('Fewings').

[14] Annexure JH-3 to Witness Statement of Jamie Higgins, p.74 of DHB; Audio Recording of Hearing at 58:03 - 58:45.

[15] Annexure JH-3 to Witness Statement of Jamie Higgins, p. 74 of DHB; Audio Recording of Hearing at 23:28 - 23:51.

[16] Audio Recording of Hearing at 24:04 - 24:58.

[17] Audio Recording of Hearing at 1:04:27 - 1:09:29.

[18] PR797725.

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