What rights do I have if I’m a high income employee who has been unfairly dismissed?

Who is a high income employee?

Under the Fair Work Act 2009 (Cth), a high income employee is classified as someone whose pro-rata employment salary is equal to or above the high income threshold. This will include wages and non-monetary benefits, such as a company car or phone, but will not include superannuation or bonuses. For the 2016-2017 financial year, the high income threshold is set at $138,900, however this figure is indexed annually from 1 July.

What is an unfair dismissal?

An unfair dismissal occurs where a person is harshly, unjustly or unreasonably dismissed and was not made genuinely redundant.

Under Part 3 – 2 of the Fair Work Act 2009 (Cth), if a person has been employed for at least 6 months (or in the case of a small business employer, 12 months) and is covered by a modern award, they will be afforded protection from unfair dismissal by their employer and eligible for up to 6 months’ wages in compensation. However, unfortunately this Part specifically precludes high income earners from protection.

Other options for high income employees

General Protections Application

Unlike unfair dismissal provisions, an application for a general protections claim under Part 3 – 1 of the Fair Work Act 2009 does not preclude high income earners, nor is there a cap on the amount of compensation payable. For these reasons, a general protections claim is potentially a preferable path for a high income earner.

However, instead of being dismissed harshly, unjustly or unreasonably, a general protections application requires an employee to establish that adverse action was taken against them due to their workplace rights, temporary absence for illness or injury, or discrimination against them.

For high income employees who feel as though they have been unfairly dismissed, a general protections application may be made claiming that their dismissal constituted adverse action for one or more of the above reasons. For example, to prevent them from their workplace right to make a complaint about their employment.

Equal Opportunity Act 2010 (Cth)

Further, high income employees who feel as though they have been unfairly dismissed are not precluded from bringing a claim in the Victorian Equal Opportunity and Human Rights Commission. The Victorian Equal Opportunity Act 2010 (Vic) provides that an employer is prohibited from discriminating against an employee by dismissing them or otherwise terminating their employment. Additionally, Part 7 prohibits an employer from victimising an employee by subjecting them to any detriment (i.e. dismissal) because, for example, they alleged the employer of discrimination.

Every matter is different, and there may be several alternative options available. If are a high income earner and you feel as though you have been unfairly dismissed, please do not hesitate to contact one of our employment lawyers.