High Income Threshold: Dart v Trade Coast Investments Pty Ltd [2015] FCCA 4355

Published 3 August 2015

A court has held that provision of a company car, mobile phone and iPad could be included in an applicaiton of the ‘high income threshold’ for protection against unfair dismissal.

Mr Dart had been employed as a Property Facilities Manager at Trade Coast Investments for over 4 years. During the course of his employment Trade Coast investments provided Dart with a company car, mobile phone and iPad, the costs of which were all paid for by Trade Coast Investments.

On 30 September 2014 Dart was dismissed for misconduct which consequently led him to file an application with the Fair Work Commission for relief from unfair dismissal.

Trade Coast Investments objected this application on the grounds that Mr Dart should not be considered a person protected from unfair dismissal as his annual rate of earnings exceeded the high income threshold as a result of his private use of a company provided motor vehicle, mobile phone and iPad.

Dart countered that the private use of the car, mobile phone and iPad were incidental to the primary function of his position requiring him to be “on call 24/7” and consequently should not be deemed a “benefit” or considered as earnings. He claimed this was supported by his letter of employment which stated that the car and mobile were to be “used for the purposes directly related to the business of the company”.  He further alleged that there was no agreement between the parties as to the extent of personal use, nor did he agree to be given a “benefit”.

The decision

The FWC found that the emphasis should be on the private benefit received by Mr Dart:

“The applicant clearly gained a personal benefit that he would have otherwise had to pay if he had his own…”

Evidence supported a finding that Dart’s private use of the company provided car, mobile phone and iPad should not be considered incidental to his employment, demonstrated by, among other things, the car’s use on frequent family holidays, the “numerous” personal calls made on the company mobile and the 610 personal photos as distinct from the 21 work related entries found on the iPad.

The FWC was also satisfied that the provision of the car, mobile phone and iPad for personal use “within reason”, had been the subject of an oral agreement between Dart and Trade Coast Investments upon employment, which was clearly demonstrated by the conduct of the parties.

Consequently, the FWC concluded that Mr Dart should not be considered a person protected from unfair dismissal and dismissed his application.  

Read the full decision here