For an employee who believes they have been unfairly dismissed, many factors come into play. Do they have a claim against their employer? How is such a claim made? Do they need professional assistance to file a claim?

For those who make under $145k per year, the Fair Work Act 2009 is a good place to begin to investigate their legal options. But for those who garner a salary in excess of $145k, the process becomes more complex because those who make in excess of this amount do not have access to a claim for unfair dismissal under the Fair Work Act.

Each year the rate for the salary cap prohibiting a plaintiff from making a claim under the Fair Work Act for unfair dismissal increases. Therefore, it is important to first verify the current salary cap.

Subsequent to verifying the current salary cap, the next step a plaintiff must do is calculate their annual income. For those who have a set salary of $145,000.00 or more, there is little calculation that needs to be done. However, if you have a lesser salary you must take into consideration the value of the following;

    • The use of a company vehicle calculated in accordance with the value of the company’s maintenance of such vehicle. In the instance the vehicle is fully maintained by the corporation, the value of the private use is included.
    • Fringe tax benefit if such benefit is within the control of the employee
    • Guaranteed overtime or bonuses
    • Private use of company-owned electronics
    • Life insurance policies
    • Tax-deductible work expenses
  • Predetermined overtime

Those items that are not considered part of an employee’s salary include;

    • Superannuation monies
    • Commissions
    • Incentive-Based pay
    • Overtime – unless guaranteed
  • Reimbursements for food and lodging while travelling for work

For 2018-2019 the high-income threshold was raised to $145,000 earning per year. For those who have a salary of this magnitude, an unfair dismissal does not fall within the jurisdiction of the Fair Work Compensation Act. Instead, they must look to other possible remedies. These legal options include;

    1. General Protections
    1. Discrimination
  1. Breach of Contract

The first possible option is to bring a claim under the Fair Work Act under Part 3-1. This option allows for a high salary earner to bring a claim by filing a General Protections Application. The employee then must show that they were dismissed by an adverse action of the employer. Adverse action can include being let go for a violation of their workplace rights, such as having filed a complaint with their employer. It must be remembered that a General Protections claim must be made within 21 days of the inception of the incident. If the employee files beyond the limitation, the claim will be barred.

Another option is a claim for discrimination. A claim for discrimination can be made up to one year after the dismissal occurs. Therefore, if an employee missed the deadline for a general protections claim, and the issue for dismissal is discrimination, the employee has additional time to file their action. However, in this instance, an employee must prove that the action taken against them was for an illegal discriminatory reason.

The third option is a claim for breach of contract. Initially, there must be an employment contract in place between the employee and the employer. The terms and conditions of the contract must be valid and enforceable and the employee must prove that the contract was breached in part or in whole. A claim and the legal assessment of the existence of a breach of contract falls within the Fair Work Act. The following issues will be considered;

    1. The actions of the employer
    1. Repudiation
  1. As assessment of the continuation of the contract after termination of the employment

Initially, it might appear that the employee with a salary above the cap has limited options, this is not necessarily true. The employee can still make a claim by filing using the General Protections, Discrimination and Breach of Contract claim options. And, while bringing an action using one of these three options might seem more complicated and stressful, the options remain available and can be navigated with the assistance of a legal professional.

If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation with the best employment lawyers Sydney has at 1800 770 780.