Whenever a person loses their job, it is only natural for them to think that it is unfair. Their stability, income and future prospects have been impacted. Unfair dismissal applications are available to Victorians if they believe that their dismissal has been harsh, unjust or unreasonable.
However, there are some limitations when applying for an unfair dismissal with Fair Work Victoria. One of these was recently decided by Deputy President Clancy of the Fair Work Commission in Victoria. In the case of Morrison v Mabey Hire  FWC 2009, the Applicant was fortunate enough to come under the high income threshold, which is currently $153,600. The Respondent tried to argue that the Applicant’s $125,000 base salary was amplified by $37, 297.44 due to excessive personal use of work vehicle. The Applicant contended that this was $13,765. However, Fair Work Victoria found that the private use of the vehicle amounted to $27,229, which resulted in total annual earnings of $153,453.56, taking the Applicant under the high income threshold.
For an unfair dismissal to be applicable, the high income threshold must not be exceeded. According to the Fair Work Act 2009 (Cth), earnings include wages, such other amounts worked out in accordance with regulations, amounts dealt with on the employee’s behalf or as the employee directs, and the agreed money value of non-monetary benefits. These non-monetary benefits include benefits other than payment of money which the employee received in return for working.
Many people ask us, ‘what about commission?’. Well Fair Work in Victoria has concluded that earnings do not include payments that cannot be determined in advance such as commissions, incentive-based payments and bonuses or overtime, reimbursements and compulsory contribution to superannuation. Bonuses cannot be determined in advance, as per Jenny Craig Wight loss Centres v Margolina  FWAFB 9137. This is because the employer has the right to alter or discontinue the bonus plan.