The salary cap that prohibits a plaintiff from making a claim under the Fair Work Act for unfair dismissal increases each year. If you find yourself being dismissed and you believe that you may earn above or around the threshold, then the first thing to do is verify the current salary cap.

Salary Cap for Unfair Dismissal

The salary cap for the 2019/2020 financial year is $148,700.

This figure is an increase from the previous financial year’s cap of $145,400 (i.e. for dismissals which took place before 30 June 2019). If you earn more than $148,700 base salary per annum and are not covered by an award you may not have access to unfair dismissal.

It is important to note that the base salary figure excludes 9.5% superannuation, commissions, overtime (unless guaranteed) or reimbursements for expenses while travelling for work; however, it does include the value of other benefits, both monetary and non-monetary.

Monetary and non-monetary benefits include:

• The use of a company vehicle, the value of which is calculated depending on the maintenance of the vehicle;
• The private use of electronics owned by the organisation;
• Fringe tax benefit if within the control of the employee;
• Guaranteed or pre-determined overtime or bonuses;
• Life insurance policies; and
• Tax-deductible work

What options are available to me?

If you have considered the above and determined that you do indeed sit above the threshold, do not worry. You may have other options.

For employees who have been dismissed, there are other protections where a salary cap does not apply and an application for unfair dismissal on one of these grounds does not consider whether it was fair for the employer to dismiss you, but rather if the dismissal was unlawful.

General protections

General protections safeguard employees from having adverse action taken against them, including dismissal.

The difference between unfair dismissal and general protections is that you need to demonstrate why the adverse action was taken. An employee cannot have adverse action taken against them for simply exercising a workplace right (such as making a formal complaint in line with the organisation’s grievance procedures), for any reason that would be deemed discriminatory (including age, race, gender or disability) or for engaging in industrial action.

It should be noted that general protections claim involving dismissal need to be made within 21 days.

Conditions of your contract

It is important to consider whether you have been dismissed with the appropriate notice period in accordance with your contract. Executives and high-income earners are commonly required to have a notice period that well exceeds four weeks and can often be several months. A breach of contract may exist if it is found that there was a failure to provide the appropriate amount of notice.

Discrimination 

Fortunately, your salary is irrelevant when making a claim of dismissal due to a discriminatory reason.

Unlike general protections and unfair dismissal which have a time limit of 21-days to apply, a complaint of discrimination can be made up to six months to one year depending on whether your complaint is lodged with the relevant state Human Rights Commission or the federal Commission.

While the rules surrounding salary caps for unfair dismissal claims seem finite, it is worth conducting some research into your personal matter before writing your case off. If your salary exceeds the threshold, there may still be cause to lodge an application.

For further information on the new salary cap for unfair dismissal claims, get in touch with one of our lawyers at Cairns Employment Lawyers.