TERMINATION OF EMPLOYMENT – high income threshold – ss.382, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent objected to application on basis that applicant earned more than high income threshold (HIT) – Commission satisfied applicant not covered by modern award and no enterprise agreement applied to his employment – applicant began working for respondent in November 2013 under an employment agreement which provided for annual remuneration of $140,000 – employment agreement provided for deferral of salary in first year and ability for parties to agree on subsequent deferrals – applicant had a contractual right to call upon respondent to pay any deferred salary – no documentary evidence that company resolved to appoint applicant as managing director or enter into employment agreement – part of remuneration deferred in 2014 and 2015 financial years – in February 2016 applicant and respondent purported to amend employment agreement to amend annual remuneration from $140,000 to $120,000 and backdate amendment to November 2013 – no documentary evidence of amendment – neither employment agreement or amendment disclosed to shareholders – applicant removed as director in September 2016 and notified of termination of employment – neither party produced minutes of meetings of sole director to resolve to enter into employment agreement or amendment – absent production of minute book difficult to verify whether employment agreement and amendment were validly entered into – as applicant never actually paid either $140,000 or $120,000 possible that both figures were a legal fiction – for purposes of application applicant willing to agree that remuneration was the actual amount paid to him – Commission held applicant’s income below HIT – satisfied applicant protected from unfair dismissal – matter to be programmed for hearing in relation to second jurisdictional objection regarding Small Business Fair Dismissal Code. Harding v Digital Skies Group P/L t/a Android Enjoyed or CameraSky
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