Leon David Olbourne and Ettamogah Darling Harbour Pty Ltd [2001] NSWIRComm 129

Industrial Relations Commission of New South Wales

CITATION : Leon David Olbourne and Ettamogah Darling Harbour Pty Ltd [2001] NSWIRComm 129 APPLICANT PARTIES : Mr Leon David Olbourne RESPONDENT Ettamogah Darling Harbour Pty Ltd FILE NUMBER: 5363 of 2000 CORAM: Sams DP Unfair dismissal - jurisdiction of the Commission - s83(1)(b) of the Act - whether applicant's remuneration exceeded the statutory threshold - meaning of remuneration - duties of hotel manager - private use of company vehicle - relevant principles CATCHWORDS : Held, motor vehicle was primarily for private use - applicant's annual remuneration exceeded the statutory threshold - Commission lacks jurisdiction - application dismissed LEGISLATION CITED : Industrial Relations Act 1996 Industrial Relations (General) Amendment (Unfair Dismissal) Regulation 1997 Shead v Summit Western Pty Ltd (81 IR 347) Kagan and Primus Telecommunications (Aust) Pty Ltd (No 2) (unreported, Full Bench: Wright P, Harrison DP and Redman C, IRC2279 of 2000, 15 September 2000) Simmonds v Pongrass Furniture Pty Limited (74 IR 443) McBlane v National Transport Insurance Limited (77 IR 185) Schmidt and Paino Holdings Pty Limited (unreported, Sams DP, IRC4678 of 1998, 5 February 1999) CASES CITED : Talbot and Rostcom Pty Ltd (unreported, Sams DP, IRC1617 of 1999, 2 September 1999) Jones v Dunkel (60 CLR 336) Rofin Australia Pty Ltd v Newton (78 IR 78) Ole Hostrup and Monroe Springs (Australia) Pty Limited (unreported, Murphy C, IRC6615 of 1997, 13 November 1998) Condon v G James Extrusion Company (74 IR 283) Wojtas and Berk Printing (Sales) Pty Ltd (unreported, Redman C, IRC2588 of 1997, 20 August 1997) HEARING DATES: 05/17/2001 DATE OF JUDGMENT: 07/06/2001

APPLICANT Mr Hughes of Counsel SOLICITOR Andrews Watts Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr Prince of Counsel SOLICITOR Hunt and Hunt Lawyers

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : SAMS, DP 6 July 2001

Matter No. IRC00/5363 LEON DAVID OLBOURNE AND ETTAMOGAH DARLING HARBOUR PTY LTD. Application by Leon David Olbourne re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION

1 This decision concerns a challenge to the jurisdiction of the Commission to further proceed with an application, pursuant to s84 of the Industrial Relations Act, 1996 ("the Act") filed by Leon David Olbourne ("the applicant"). On 13 October 2000, the applicant was dismissed by Ettamogah Darling Harbour Pty Ltd ("the respondent") from a position in management - so described because his actual position description is in dispute.

2 For present purposes it is unnecessary to canvass the reasons for dismissal, or to make findings as to the unfairness alleged by the applicant in respect to his dismissal.

3 Consistent with the Commission's statutory obligation to attempt to settle the matter, conciliation proceedings were conducted on 13 December 2000. Notwithstanding attempts at settlement, the respondent maintained that the applicant's annual remuneration was above the statutory threshold pursuant to s83(1) of the Act and the Regulations. It was submitted that this issue should be determined on a preliminary basis. Accordingly, pursuant to s87 of the Act, I set the jurisdictional contest for hearing and issued directions for the filing and service of evidentiary material. Dates were set for the substantive hearing should the jurisdictional hurdle be overcome.

4 The date for hearing, 16 March 2001, did not proceed on account of both parties' failure to comply with directions. The matter was re-listed with amended directions. At the hearing, Mr Hughes of Counsel appeared for the applicant and Mr Prince of Counsel appeared for the respondent.

CASE FOR THE RESPONDENT

5 The respondent contends that the applicant's annual remuneration was $81,633.77, based on the following components and estimates of private usage: $ Salary 60,000.00 Superannuation 4,800.00 Mobile Telephone (40% private usage) 796.08 Motor Vehicle Lease (75% private usage) 4,672.62 Motor Vehicle insurance and registration 610.52 (75% private usage) Motor Vehicle maintenance and fuel (75% private usage) 2,319.45 Motor Vehicle parking (75% private usage) 788.18 Fringe Benefits Tax 2,065.45 Comprehensive Car Insurance 1223.00 Overpayment of annual leave 4,038.47 Unpaid moneys borrowed from safe 320.00 $81,633.77

6 Affidavit and oral evidence was provided by the Managing Director, Ettamogah Pub Darling Harbour Pty Ltd, Mr Leigh O'Brien. Mr O'Brien deposed that he had estimated the private usage of the applicant's mobile phone to be "conservatively" 40% and the personal use of the company provided motor vehicle to be "conservatively" 75% - including the applicant's travel to and from work, on weekends and during periods of leave. Attached to Mr O'Brien's affidavit were phone accounts and various documents in respect to the costs associated with the motor vehicle.

7 In a further affidavit, Mr O'Brien said that when the vehicle was returned to the company, without a logbook, it had approx 60,000 on the odometer. Mr O'Brien believed that the applicant used the vehicle to drive his wife to and from work. Mr O'Brien gave evidence that he did not actually see the applicant use the vehicle for private purposes, but was aware (because the applicant told him) that he used the vehicle to look for a new flat and visit the bank to arrange finance. He disputed the applicant's claim that other staff members used the car, as the applicant was the nominated driver for insurance purposes.

8 In oral evidence, Mr O'Brien deposed that the applicant would visit the company offices at Crows Nest about once a week; although he had tried to discourage him from doing so. Mr O'Brien gave evidence that after January 2000, the applicant was no longer operations manager overseeing three pubs (Albury, Campbelltown and Darling Harbour) and that his role changed to manager of Darling Harbour only. He described it as a demotion. However the applicant retained the company provided vehicle, despite no other manager being provided with a vehicle. Mr O'Brien was questioned as to why these details were not included in his affidavit evidence.

9 Mr O'Brien said the applicant was first provided with the car in November 1998, but it did not result in a reduction of his salary. After January 2000, there was only one occasion when all the managers drove to Albury for a managers' meeting. As to the applicant's claim of a log book which was handed in to the company, Mr O'Brien could not explain why it could not be located. He accepted the applicant may have provided it.

10 As to the Fringe Benefits Tax, Mr O'Brien conceded that there may have been a mistake in the calculations. However, he had relied on information provided by the accountants. Mr O'Brien gave evidence of the hotel's trading during the Olympics and the long hours worked by the applicant at the time. He agreed that from 31 January 2000, the applicant was working very long hours, sometimes 6 or 7 days a week. He said however, this was his choice. If the hotel had run out of stock, Mr O'Brien was not aware of it. He said it shouldn't have happened anyway.

11 As to the phone usage, Mr O'Brien disputed the applicant's claim of a small number of private phone calls. He agreed however, as the hotel manager, the applicant was on call 24 hours a day, but only in respect to "major difficulties". He could see no reason why the applicant would need to speak to suppliers, organise the entertainment or security needs, or be in routine contact with other staff outside his working hours. Nevertheless, he accepted that the applicant might have done so. Mr O'Brien said the applicant would use the mobile phone even though the direct phone was available at the hotel. The applicant had originally supplied his own phone, but when he wanted to renew it, the company purchased the new phone and paid the bills. Mr O'Brien acknowledged that the applicant's salary had not been reduced to take this into account. Mr O'Brien conceded that 40% private usage was only a guess - but a conservative one.

12 In re-examination, Mr O'Brien said he was aware the applicant visited Campbelltown. However, there was no requirement for him to do so, as it had it's own manager, and the applicant was required to stay at Darling Harbour.

13 Counsel for the respondent submitted that the principal factual dispute in this case is the percentage of business use of the motor vehicle provided to the applicant. He said that if the percentage of business use was 40 percent or more, then the applicant's claim would come within jurisdiction. In the absence of concrete evidence, the Commission should take into account the applicant's duties and the very limited requirements for him to use the vehicle in the course of his employment.

14 Mr Prince put that the applicant's evidence was vague and imprecise; whereas the respondent conservatively estimated the private vehicle usage at 75 percent. The total value of the vehicle to the applicant was $9613.77 plus full fringe benefits tax of $2,065.45. He submitted that travel to and from work could not be considered business usage and the use of the car during work time was negligible. As to the visits to Campbelltown, Mr Prince submitted that the applicant was not required to visit Campbelltown, as he was based full time at Darling Harbour from January 2000. This was the evidence of Mr O'Brien and Mr Arnot. In any event, the applicant did not regularly visit Campbelltown as his duties at Darling Harbour required him to be there full time. There was no evidence that the vehicle was regularly used for business purposes.

15 As to fringe benefits tax, Mr Prince submitted that the best evidence of this amount was the business records of the company. This figure should be accepted. Mr Prince referred the Commission to Kagan and Primus Telecommunications (Aust) Pty Ltd (No 2) (unreported, Full Bench: Wright P, Harrison DP and Redman C, IRC2279 of 2000, 15 September 2000) as authority for the proposition that that part of the use of the motor vehicle for private purposes is to be taken into account in determining an employee's annual remuneration. Other payments, such as overpayment of annual leave, fall within the Commission's approach of giving the term "remuneration" a wide meaning. In any event, the annual leave claim cannot be sustained as an entitlement as there was an agreement with the applicant for him to take time in lieu.

CASE FOR THE APPLICANT

16 The applicant provided two affidavits and gave oral evidence. While not expressing a view as to his actual annual remuneration, he plainly took issue with a number of the components of the respondent's assessment and the assumptions upon which they were based. In particular, the applicant maintained that, despite being based full time as the manager of the Darling Harbour Pub, from January 2000, he was still operations manager responsible for Campbelltown, Albury and Darling Harbour (T. p45). In this capacity he claimed to have visited Campbelltown "at least every fortnight" during this period (T. p39). He claimed that the managers worked under his direction on a daily basis (T. p56). The applicant also spent some time at the company's head office at Crows Nest (although the office closed in February 2000). He said he maintained a role of talking to suppliers, buying for the group (the Ettamogah Group) and creating promotions for the group. He also gave evidence that he paid bills for the company and ran errands such as picking up stock. This occurred at least two to three times a week. As the nominated driver of the vehicle he was required to do so. He claimed that ice would run out every weekend and he was required to collect supplies.

17 He was asked why he was driving through Rockdale and Brighton le Sands on a working day - 6 October 2000. He said it was the normal route he would travel to Campbelltown. He said he wouldn't always claim the M5 toll because it wasn't worth it (T. p68). In explaining why there were few phone calls made from Campbelltown, the applicant said he would use the landline at Campbelltown as the mobile couldn't get reception in the hotel - the hotel being located in the shopping centre basement. He also gave evidence that he, and another employee, James Arnot used the vehicle to go on a snow trip to Cooma and that Mr O'Brien had authorised him to do so.

18 The applicant estimates his private phone use at 17.69%. Attached to his affidavit were phone account printouts in which he highlighted personal calls through identifying numbers, particularly those to his parents, wife and home phone. In cross examination, he identified a number of other phone numbers (not highlighted), which were additional private calls, eg to his real estate agent and to where his wife worked casually. The applicant gave evidence he was encouraged to use the phone because it was on a $150 a month flat plan.

19 The applicant explained an "IOU" for $320, found in the safe after he was dismissed, was for ice collected during the Olympics. This was a common practice, particularly if the hotel was busy.

20 Mr James Arnot is a chef by profession and was employed by the respondent as Administrative Chef. In this role he was responsible for overseeing the menus and food production for the Ettamogah Group. While based at Darling Harbour, his duties involved visits to Campbelltown and Albury. From February 2000 until he resigned in February 2001, he travelled to Campbelltown about once a week. The frequency of the trips decreased towards the end of this time.

21 He recollected that, from time to time, the applicant would use the company vehicle to pay the company's bills or run errands such as urgently picking up stock. He also recalled one occasion, when another staff member used the applicant's car during the Olympics to get ice for the Darling Harbour Hotel.

22 In oral evidence, Mr Arnot said that from January 2000 to October 2000, the applicant was manager of the Darling Harbour hotel. He believed the applicant was permanently based at Darling Harbour during this time. He said Campbelltown and Albury had their own managers, who he would deal with in respect to catering issues.

23 During the Olympics, Mr Arnot said things were very hectic, but on most occasions suppliers would provide deliveries. Occasionally, stock would run out, but this was not a regular occurrence.

24 The applicant's counsel took issue with the credit of the witnesses. He said that the applicant was frank and answered questions without hesitation. In contrast, Mr O'Brien tried to avoid answering questions, was evasive and inconsistent (see particularly T. p8 and 9). The first time Mr O'Brien mentioned the applicant's demotion to full time at Darling Harbour was in the witness box. It was "beyond belief" for a demoted employee to retain a motor vehicle for a job he allegedly was no longer doing. There was no reduction in salary and no salary sacrifice arrangements.

25 Mr Hughes submitted that Mr O'Brien was lying when he said he hadn't deposed to an affidavit before. Crucial omissions from his affidavits were such as to doubt his overall evidence. Thus, the applicant's evidence was to be preferred and the Commission would be able to draw inferences favourable to the applicant.

26 Mr Hughes submitted that there was no evidence to corroborate Mr O'Brien's version of the facts. No employees were called to say the applicant was not the operations manager, no employees called to say he didn't run errands or make visits to Campbelltown. There are no employment records, no log books, no source evidence. All this evidence should be in the respondent's hands, but was not produced (Jones v Dunkel (101 CLR 298)).

27 Mr Hughes submitted that there is a difference between the provision of a car as a salary package and one which is provided as a piece of equipment to enable an employee to perform his job (See Rofin Australia Pty Ltd v Newton, (78 IR 78)). It was clear that the vehicle fell into this latter category, as he needed to be on call and run errands for the company and visit other locations. Based on this, he said the vehicle should not enter the equation at all. However, in the alternative, he proposed that the percentage of private usage of the vehicle for 37 weeks was 15.99 percent, or if travel to and from work was included it is 37.6 percent.

28 As to the vehicle cost components, Mr Hughes pointed to the respondent's evidence that its calculations were a guess. As Mr O'Brien was based in Melbourne he would not have personal knowledge of the applicant's use of the car during work time. He put that the lease figure was inflated due to the period before July 2000 that was GST free and that parking and FBT should not be included. Even if FBT was a consideration, the respondent's figure should not be accepted as there was no basis for its calculation.

29 Mr Hughes questioned the rationale of using figures based on 9 months and simply converting them to 12 months. On the mobile phone usage, Mr Hughes accepted that the applicant's estimate of 17 percent was underestimated. He adjusted it to 25 percent.

30 Mr Hughes rejected the inclusion, in annual remuneration, of an amount of $320 being an I.O.U. left by the applicant in the safe. At its highest, he said, it was a debt owed to the respondent. Similarly annual leave, said to be an overpayment, was an entitlement due to the applicant. There was no evidence of an agreement whereby time taken off was in lieu of overtime. The applicant was given time off as a gratuity.

CONSIDERATION

31 The statutory limitation which bars a non award employee from access to the unfair dismissal jurisdiction based on the employee's annual remuneration is to be found at s83(1) of the Act: 83(1) This Part applies to the dismissal of:

(a) any public sector employee, or (b) any other employee, except an employee for whom conditions of employment are not set by an industrial instrument and whose annual remuneration is greater than $62,200 (or such greater amount as is prescribed by the regulations).

32 Pursuant to the Industrial Relations (General) Amendment (Unfair Dismissal) Regulation 1997, the annual remuneration threshold from 1 July 2000 is $71,200. The applicant was dismissed on 13 October 2000. Thus, if his remuneration in the previous twelve months preceding his dismissal was $71,200 or greater, his application for relief from alleged unfair dismissal must de juris be dismissed for want of jurisdiction.

33 The definition of remuneration, in the context of the unfair dismissal provisions of the 1996 Act, was discussed in Shead v Summit Western Pty Ltd (81 IR 347). There the Full Bench observed that the Act does not prescribe a definition of remuneration. However, the Commission rejected a narrow interpretation of the term and held that "in Pt 6 of Ch 2, the word is used in its ordinary broad sense as comprehending an employee's total package as a reward for the work performed". (81 IR 347 at 362).

34 In Kagan and Primus Telecommunications (Aust) Pty Ltd (No 2), a recent Full Bench of the Commission reaffirmed the conclusion in Shead, but added that the term 'remuneration' should not be construed so widely as to give it an operation beyond its wide meaning. The Commission developed this proposition with examples: The extracts from the judgments in Shead v Summit Western Pty Ltd t/a Blacktown Mitsubishi and Higgins v Prospect County Council demonstrate that, although the word "remuneration" is to be construed relevantly as having a wide meaning and operation, it should not be construed so widely that (it) is given an operation beyond its wide meaning. For example, if money be received over and above what is reasonably considered consideration for the employee providing his services to the employer, then such moneys would not be considered to be remuneration, or part of the remuneration paid or payable to the employee. Although the ordinary meaning of the word "remuneration" is not confined to cash benefits, nevertheless it must involve the notion or concept of payment for services rendered or work done. Further, although in some circumstances, as considered by Kearney J , remuneration may include gratuitous payments which may not be strictly contractual entitlements, nevertheless they must be payments which are referable to or arise from the performance of work, the provision of services or the carrying out of the duties of employment. To take a simple example, if money is paid by way of a mileage or per kilometre allowance to an employee for the use of a motor vehicle in the course of employment, such payment would not be considered to be remuneration; nor would payment referable to, for example, a meal allowance provided in conjunction with the need to take a meal during the working of overtime (at para 11).

35 In thinking about the circumstances here disclosed, and on a proper application of the principles discussed in Shead and Kagan, one interpretation of the term "remuneration" might be any payment made, or benefit provided by an employer to, or on behalf of an employee, for work performed by the employee, except where such payment or benefit is wholly or partly for work related purposes. Adopting this approach, there can be no doubt that annual remuneration in s83(1) of the Act comprehends the provision of, and costs associated with, a motor vehicle used by the employee for private purposes.

36 Like many of the cases which have considered the jurisdictional barrier in s83(1)(b), the issue of what proportion of private versus business vehicle usage was the major contest in the proceedings (see Simmonds v Pongrass Furniture Pty Limited (74 IR 443), McBlane v National Transport Insurance Limited (77 IR 185), Schmidt and Paino Holdings Pty Limited (unreported Sams DP, IRC4678 of 1998, 5 February 1999), and Talbot and Rostcom Pty Ltd (unreported, Sams DP, IRC1617 of 1999, 2 September 1999)). As I am content to decide this matter on this contest alone, it is unnecessary for me to make findings on the other disputed components of the salary package such as the private use of the mobile phone, which, despite some reservations, I will include on Mr Hughes' estimate of 25% private usage. I would also make no provision for the overpayment of annual leave or money borrowed from the safe, and accordingly make no findings as to whether these components form part of the employee's annual remuneration.

Was the vehicle provided primarily for private purposes?

37 Undoubtedly, the turning point in the applicant's circumstances was in January 2000, when he became manager of the Darling Harbour Hotel. Prior to this time, he was in possession of a company maintained vehicle, made available by the employer when he was overseeing two other hotels at Albury and Campbelltown. It is patently obvious that there would be significantly more work related travel in circumstances where he was managing three hotels - Albury, Campbelltown and Darling Harbour - rather than managing one.

38 The applicant was appointed full time to Darling Harbour prior to the Olympics. The other hotels employed their own managers. Whatever the circumstances, or reasons for Mr Olbourne's permanent base at Darling Harbour, it would seem improbable that his company provided vehicle would be taken from him. It seems to me that it properly reflected his new role without him losing any of his existing benefits. The Commission does not believe that the applicant's position at Darling Harbour required the ready availability of a vehicle. The fact that he was provided with one does no more than reflect a beneficial component of his remuneration arrangements, previously agreed to and not withdrawn from him when his role changed. In any event, I find instructive, the uncontested evidence that the applicant's predecessor at Darling Harbour and all other managers were not provided with company vehicles.

39 What strikes me as particularly strange is that the petrol card usage before, and after, his residential move from Oyster Bay to Darlinghurst frequently shows petrol fill-ups at Sans Souci and Blakehurst. I ask rhetorically, if the applicant lived at Darlinghurst, and worked at Darling Harbour, why is he travelling to Sans Souci and Blakehurst to fill up with petrol? The applicant claims the route he took to Campbelltown was via Sans Souci and Blakehurst; presumably filling up along the way. The evidence is not clear but there must be some explanation, other than he was on work related travel. In view of my later findings as to travel to Campbelltown, the applicant's explanation is implausible.

The applicant's calculations

40 In MFI 1, Mr Hughes proposed two alternatives, each one, not surprisingly falling below the threshold:

Table one Salary $60,000.00 Superannuation $4,800.00 Mobile Phone $497.55 Private Car Usage (15.99%) $1,572.84 Total $66,870.39

Table Two Salary $60,000.00 Superannuation $4,800.00 Mobile Phone $497.55 Private Car Usage (37.76%) $3,962.00 Total $69,259.55

41 The difference between the two calculations is referable to whether travel from home to the workplace and back, should be regarded as private (37.76%) or business (15.99%) use. The total schedule of vehicle costs estimated by the applicant is $10,492.60 - not including parking and Fringe Benefits Tax. I do not intend to exclude parking from the calculation. The annual parking cost is $1,050.90. A percentage of private usage will be included in my later calculations.

42 I shall firstly deal with whether travel from home, to the workplace, and back, should be regarded as business or private usage.

43 Mr Hughes provided calculations in Table 1, above, which included the travel to and from the workplace as work related. This assumption is incorrect. As I understand it, home to workplace travel is not available as a tax deduction as being work related. It seems to me that such travel, as generally understood, is not and cannot be held to be work related. True it is that if the employer required a vehicle to be available for business purposes during work hours, the employee would be required to bring it from home. However, the answer to this situation is that such a vehicle could be garaged at the employer's premises and not made available to an employee for travel to and from work. In any event, I regard this issue as having been appropriately decided by decisions of other members of the Commission, to which I now refer.

44 In Ole Hostrup and Monroe Springs (Australia) Pty Limited (unreported, IRC6615 of 1997, 13 November 1998), Murphy C, relying on Condon v G James Extrusion Company (74 IR 283), said at p10: The vehicle provided certainly can be said to have facilitated Mr Hostrup's protracted attendance at work, but I have decided that that notion is insufficient to extinguish the personal benefit derived by him (see Condon) in not having to drive his own car or catch public transport to and from work, or to catch public transport like most employees. Many of these are shift workers working unsociable hours or who are required to work overtime on a much lower level of remuneration, without the convenience of a company car. Mr Hostrup's dedication, whilst something worthy of examination in the consideration of the merits of his claim, is insufficient for me to disregard the private advantage to him of travelling to and from work by use of the vehicle made clear in some of the authorities quoted to me.

45 Similarly in Wojtas and Berk Printing (Sales) Pty Ltd (unreported, IRC2588 of 1997, 20 August 1997), Redman C said at p4: I find the use of a company vehicle for the direct journey from home to work may not be claimed to be business usage. This is the ruling of the Australian Taxation Office, and I adopt that ruling. I also note that Watson DP of the Australian Industrial Relations Commission in A Condon and G James Extrusion Company , unreported decision on 4 April, 1997, print N9963 of page 7 of that decision, supports the approach of treating as private usage the value of a motor vehicle for travel from home to work.

The Employer's Calculations

46 The employer's estimate of vehicle costs is as follows:

Lease (75% usage) $4,672.62 Insurance and Registration (75% usage) $610.52 Maintenance and Fuel (75% usage) $2,319.45 Parking (75% usage) $788.18 Fringe Benefits Tax $2,065.45 Comprehensive Insurance $1,223.00 Total $11,679.22

47 In view of the uncertainty as to the correct calculation of fringe benefits tax, I have taken the liberty, in the applicant's favour, of taking it out of the calculation. The resultant figure is $9,613.77 based on 75 percent private usage.

48 I turn now to the major contest between the parties - the percentage of private versus business vehicle use. The respondent argued 75 percent private usage; the applicant, either 15.99 percent or 37.76 percent. 49 In MFI 1, Mr Hughes estimated the amount of private versus business use of the vehicle over a thirty seven (37) week period from January 2000 to October 2000. I reproduce his calculations: BUSINESS PRIVATE Darlinghurst to work and return 1776 (8kms per day) Work to Campbelltown 2775 (1.5 trips per fortnight 100kms) Errands from work 740 (2.5 per week 8kms) Work to Castle Hill 540 (9 trips 60kms) Albury trip 800 Ski trip 800 Negligible private use 370 (say average of 10kms per week) Totals 6631 1170

50 The Commission has earlier dealt with the travel to and from work and hence the figure of 1776 should be transferred to the private use column. There appears to be no dispute with the trip to Cooma for personal purposes and the trip to Gundagai/Albury for business purposes. Little evidence was adduced in respect to the trips to Castle Hill. I shall therefore retain that component. I shall also retain, despite some reservations, Mr Hughes' estimate of 10km per week of negligible private use.

51 This leaves two components which require findings to be made by the Commission. The first concerns the extent to which the applicant was required to run errands, during work time, using the vehicle. There was little corroborative evidence of the frequency of such errands, or the collection of supplies for the hotel. The Commission has some difficulty in accepting that a busy, well managed hotel in Darling Harbour with 50-60 staff would require the manager (except in an emergency), personally collecting supplies or running errands. I accept that sensitive matters such as the hotel's licence, or interviews with solicitors are appropriately within the purview of the manager's responsibilities. However, I find it difficult to believe that simple errands or collecting supplies should, or would be within the duties and responsibilities of the manager of such an establishment.

Nevertheless, accepting Mr Olbourne's evidence that he ran errands 2 or 3 times a week, the evidence is that such errands were within the city precincts, such as city solicitors or Carlton United Brewery at Broadway; little more that 2 or 3 kilometres from Darling Harbour.

Despite my reservations, I propose to give the applicant the benefit of the doubt and include 2.5 errands per week in the calculation, but discount the distance to 5kms. The amended calculation (2.5 × 37weeks × 5km) is 462.5.

52 The second, and most controversial of the components was the applicant's claim that he made 50 trips to Campbelltown in the 37 week period. Mr Hughes reduced the number in MFI 1 to 1.5 trips per fortnight 100kms - approx 28 trips.

53 For the following reasons, I am not convinced that the applicant made anything like 28 trips to Campbelltown, let alone 50 in the 37 week period. 1. The fact that Mr Hughes almost halved the applicant's own estimation of 50 trips gives me no certainty that either figure is close to accurate.

2. While I accept that the respondent called no evidence to rebut the possibility of frequent visits to Campbelltown, it would, on the other hand, have not been too difficult a task, by subpoena or otherwise, to obtain evidence from persons at the Campbelltown hotel to corroborate the applicant's frequency of visits.

3. The person probably best placed to be aware of the applicant's duties and movements, was the administrative chef, Mr Arnot, who worked with him. His evidence was instructive. He confirmed that the three hotels had separate managers whom he would deal with on catering issues. He understood the applicant was the full time Manager at Darling Harbour.

4. There is a paucity of evidence from the applicant as to what the purpose of the visits were, or what he actually did when he was there. Mr Arnot gave evidence that his own duties across the Group required him to frequently visit the Campbelltown pub. It is curious that Mr Arnot's evidence makes no mention of the applicant's alleged frequency of visits to Campbelltown during 2000. 5. It appears rather odd, if the applicant was operations manager for Albury and Campbelltown, that there are alleged to be 50 trips to Campbelltown, but evidence of only one car trip to Albury. I accept the applicant deposed that he flew to Albury, but no evidence was produced corroborating such travel. 6. The managers' reimbursement form for 31 July 2000 discloses a claim for the toll on the M5 freeway. This no doubt reflects his trip to Campbelltown on 29 July. However, there was not one other claim for the toll for the many other trips said to have been made. While I accept such material was in the respondent's possession, it is curious that it was not subpoenaed, if it could prove (at least inferentially) that the applicant visited Campbelltown on many occasions. The applicant's answer to this evidence was that he wouldn't get receipts and wouldn't make a claim "as it wasn't worth it" (T. p68). I do not find this answer to be credible. 7. The telephone accounts are most informative. They reveal an incredible overuse of the mobile phone. But more significantly, the number of calls and their point of origin provide a telling story of where the applicant was during the day - and it wasn't very often at Campbelltown. For example, in January 2000, nine calls originated from Campbelltown; six on 14 January and three on 21 January. This was during the period before the applicant became full time at Darling Harbour. However, from the last date, 21 January until October 2000, in the hundreds of phone calls made by the applicant, there is only one day, 29 July, when three calls are registered from Campbelltown. This was the day, which is undisputed, that he did go to Campbelltown.

Bearing in mind the high frequency of the applicant's mobile usage, how is it that, if there were 50 trips to Campbelltown there is only one day where he made calls from Campbelltown? The applicant's explanation is that the mobile phone wouldn't work in Campbelltown. This is nonsense. Calls from his mobile phone, registered in January and on 29 July, originated from Campbelltown. 8. The applicant's movements on 6 October - a work day - as recorded by the trail of mobile calls is very strange. The accounts disclose him at Mortdale at 11.30am, Kings Cross at 1.14pm, Botany at 2.18pm, Rockdale at 2.40pm - 3.07pm, Botany at 4.45pm and Kings Cross at 5.11pm. He claimed in oral evidence that this was his normal route to Campbelltown, but he may have been called back to Darling Harbour en-route to Campbelltown. This claim is extraordinary and utterly unbelievable. I have no idea what the applicant was doing on this day - but it most certainly wasn't going to Campbelltown.

In view of these observations, I find the applicant's evidence of frequent visits to Campbelltown to be utterly unconvincing. In my opinion, he made only one trip to Campbelltown after 21 January 2000. But even if I be wrong about one trip, I will include 5 trips to Campbelltown of 100km return during the thirty-seven week period. The calculations will be adjusted accordingly.

54 As a result of my findings, I would amend MFI 1 in the following way:

BUSINESS PRIVATE Darlinghurst to work and return 1776 (8kms per day) Work to Campbelltown 500 (5 trips 100kms) Errands from work 462 (2.5 per week 37 5kms) Work to Castle Hill 540 (9 trips 60kms) Albury trip 800 Ski trip 800 Negligible private use 370 (say average of 10kms per week) Totals 2302 2946

So amended, the calculation of the percentage of private usage of the vehicle is 56.13%.

55 Accordingly, the Commission proposes to adopt the following schedule of vehicle costs based on 56% private usage:

Total Usage 56% private usage Lease Costs $5889.60 $3298.18 Insurance and Registration $814.00 $455.84 Parking $1050.90 $588.50 Fuel and Maintenance $2086.00 $1168.16 Tyres, etc $480.00 $268.80 Comprehensive Insurance $1223.00 $684.88 $11543.50 $6464.36

56 The Commission points out that the above total vehicle costs, save for the inclusion of parking, are based on the figures provided by Mr Hughes in MFI 1.

57 By adding the vehicle costs to the agreed components and Mr Hughes' estimate of phone usage, the result is:

Salary (Agreed) $60,000.00 Superannuation (Agreed) $4,800.00 Mobile phone (25%) $497.55 (Mr Hughes' estimate) Vehicle usage (based on 56% private usage) $6464.36 Total: $71,761.91

58 The Commission must emphasise that this calculation does not include my reservations as to: a) 25% private phone use; b) the number of errands run by the applicant; and c) the low figure of negligible private car usage in the vehicle calculation of 10km a week. There has been no inclusion or consideration of Fringe Benefits Tax on the vehicle. Thus, my calculations have erred on the conservative side, providing to the applicant a generous margin for error in his favour. I readily acknowledge that it is difficult to estimate the business use of the vehicle for the period October 1999 to January 2000. However, it seems to me that such uncertainty would be balanced by the conservatism of the figures I have just expressed. Still, the result is the same. The annual remuneration threshold pursuant to s83(1)(b) of the Act and the Regulations has been well, and truly, exceeded. It follows that the application must be dismissed.

FINDINGS 1. The applicant's annual remuneration in the twelve months prior to dismissal on 13 October 2000, was at least $71,761.91. 2. Pursuant to s83(1)(b) of the Act and the Industrial Relations (General) Amendment (Unfair Dismissal) Regulation 1997, the Commission has no jurisdiction to entertain the applicant's claim for relief from alleged unfair dismissal. 3. Application 5363 of 2000 is dismissed for want of jurisdiction. 4. The dates reserved for substantive hearing, 7 and 8 August 2001, are vacated.

5. The proceedings are concluded.

Peter Sams Deputy President

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.