Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - not covered by a modern award or enterprise agreement - whether annual rate of earnings exceeded high income threshold - jurisdictional objection upheld - application dismissed.

[1] On 5 December 2025, Mr Vincenzo Mobilio (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Niddrie X-Ray Pty Ltd (the Respondent) on 14 November 2025 was unfair. The Respondent has raised a jurisdictional objection to the application on the basis that that at time of his dismissal the Applicant's earnings exceeded the high income threshold and therefore the Applicant is not a person protected by the unfair dismissal provisions of the Act.

[2] Determination of the Respondent's jurisdictional objection was initially set down for a conference on 3 March 2026 but was adjourned due to the Applicant's medical condition and was relisted for 24 March 2026. The Applicant was also granted an extension to file submissions, having missed the previous deadline. The Respondent filed materials, but the Applicant again failed to file any material in reply, as required by the amended directions. The Applicant failed to file any material in response to the Respondent's material, seek a further extension of time or provide the necessary evidence that would justify a further adjournment of the matter. As there are no disputed facts relating to the jurisdictional objection, I intend to vacate the conference and determine the matter on the material before me.

[3] The relevant background and evidence may be shortly stated. The Applicant commenced employment with the Respondent on 14 August 2018 on a contract of employment providing for normal hours of work of 44 hours per week and an hourly rate of $75. At the date of his dismissal he was engaged as the Practice Manager/Chief Operating Officer for the Respondent on an hourly rate of pay of $85 per hour. His required hours of work remained 44 hours per week. His payslips in the period prior to dismissal reveal weekly earnings of $3740 exclusive of superannuation. This equates to annual earnings of $194,480 exclusive of superannuation.

[4] Before considering the merits of the Applicant's unfair dismissal application the Commission is required by s 396 to decide certain matters. Section 396 provides as follows:

"396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy."

[5] It is not contested that the application was filed within the 21-day statutory timeframe specified in s.394(2) of the Act. Therefore, the next issue that must be determined is whether the Applicant is a person protected from unfair dismissal (s.396(b)). The critical questions arise from the operation of s.382(b) which relevantly provides as follows;

"382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(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 their 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." (emphasis added)

[6] It is not contested that the Applicant has completed the minimum employment period. As such, for me to be satisfied that the Applicant is a person protected from unfair dismissal it is necessary to determine whether the Applicant in his employment was covered by a modern award or enterprise agreement, and if not, whether the Applicant's annual rate of earnings was less than the high income threshold.

[7] Section 332 of the Act defines "earnings" as follows:

(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;

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

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

(3) Non-monetary benefits are 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.

(4) This subsection applies to contributions that the employer makes to a superannuation fund to the extent that one or more of the following applies:

(a) the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;

(b) the employer is required to contribute to the fund for the employee's benefit in relation to a defined benefit interest (within the meaning of section 291-175 of the Income Tax Assessment Act 1997) of the employee;

(c) the Employer is required to contribute to the fund for the employee's benefit under a law of the Commonwealth, a State or a Territory.

[8] The high income threshold is an amount prescribed and worked out by operation of reg. 2.13 of the Fair Work Commission Regulations 2009. Applying the calculation provided by that regulation, the high income threshold at the time of the Applicant's dismissal was $183,100.

[9] Before turning to consider whether the annual earnings of the Applicant were below the high-income threshold, I must firstly establish whether the Applicant was covered by a modern award or enterprise agreement. The Applicant did not contend that he was covered by either a modern award or enterprise agreement. I have also considered whether his former role would fall within the coverage of a modern award and have concluded that it would not, having regard to the seniority of the role and the management responsibilities. I am satisfied that the Applicant was not covered by a modern award or enterprise agreement in his employment with the Respondent.

• [10] On the authority of Zappia v Universal Music Australia Pty Limited T/A Universal Music Australia[1] it is necessary for me to ascertain the annual rate of earnings at the time of the termination of employment.[2] There was no dispute and I am satisfied that the Applicant was in receipt of a base annual salary of $194,480 at the time of his dismissal on 14 November 2025. The high income threshold referred to in s. 382(b)(iii) of the Act was $183,100 at the time of the Applicant's dismissal on 14 November 2025. It follows that the Applicant's annual rate of earnings was, at the time of his dismissal, above the high income threshold.

[11] I am satisfied that because no modern award or enterprise agreement covered the Applicant and his annual rate of earnings was above the high income threshold of $183,100 at the time of his dismissal: the Applicant was not protected from unfair dismissal. The Applicant was not entitled to make an unfair dismissal application. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.

[1] [2012] FWAFB 6108

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