Paid over $200,000, but still allowed to claim unfair dismissal

What happened

Lance Boston worked as a supervisor for Selcouth Pty Ltd, a company providing industrial cleaning and maintenance to the mining and industrial sectors, from 22 March 2022 until he was dismissed on 28 November 2025. For most of that time he worked on client sites, including in the Pilbara, where he flew in and out, and at an Alcoa site in Kwinana.

His contract set an ordinary rate of $46 an hour for a 38-hour week, plus a remote uplift allowance of $21 an hour for hours worked on site and a mobilisation payment of four hours' pay at his ordinary rate ($184) for each swing when he flew in and out. On site, the employer's evidence was that he worked shifts of at least 12 hours, and usually 13. Hours beyond eight a day were paid at overtime rates of 150% and then 200%.

Mr Boston lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth).

The employer's objection

Before any question of fairness could be heard, Selcouth objected that Mr Boston was not entitled to claim at all. Under s 382, an employee who has served the minimum employment period is protected from unfair dismissal only if a modern award covers them, an enterprise agreement applies to them, or their annual rate of earnings is below the high income threshold. That threshold was $183,100 when he was dismissed.

No enterprise agreement applied. Mr Boston at first argued he was covered by the Mining Industry Award 2020, saying he was really a leading hand who did the same hands-on work as his crew. He later dropped that argument. The Deputy President agreed he was not covered: earlier decisions have held that the Mining Award does not extend to supervisors, and the Deputy President accepted the chief executive's evidence that the lower-level work Mr Boston sometimes did was incidental to his supervisory role.

That left the money. The employer put his annual earnings at $243,938, a figure that included $121,940 in penalty rates and overtime before a deduction for leave. Its chief executive also said that from December 2024 to December 2025 Mr Boston earned $212,690, with $78,885 of it overtime. Either figure is well over the threshold, if overtime counts.

The legal test: what counts as earnings

Section 332 of the Act defines earnings. They include wages and the agreed value of non-monetary benefits, but they do not include payments the amount of which cannot be determined in advance. A note to the section gives examples: commissions, incentive payments, bonuses and overtime, unless the overtime is guaranteed.

The Full Bench in Foster v CBI Constructors Pty Ltd [2014] FWCFB 1976 explained that the real question is not whether the employer was legally bound to offer the overtime, but whether the payments could be worked out ahead of time. In that case, a worker under a standing direction to attend a half-hour pre-start meeting every day had overtime that could be predicted, so it counted. In Cross v Bechtel Construction (Australia) Pty Ltd [2015] FWC 3639, a worker required to work a regular 58-hour week was in the same position.

The assessment is of the annual rate of earnings at the time of dismissal. It is not simply a total of what the employee was paid in the 12 months before.

What the Commission decided

Both sides accepted, and the Deputy President found, that the remote uplift and mobilisation allowances were known amounts that could be determined in advance. They counted.

The overtime was different. Mr Boston accepted that once on site he consistently worked 12-hour shifts. But how many days he spent on site each week was not predictable. His contract said project hours could change at any time, the evidence did not show that he worked a set weekly or monthly roster, and his payroll records showed overtime swinging widely: in two consecutive weekly entries in November 2025 his remote overtime came to $536, then $2,881.

The Deputy President accepted that overtime was a real feature of his site work, even though the contract did not oblige the employer to offer it. But the amount worked each week was not 'consistent, predictable or able to be ascertained in advance', so the overtime payments were not earnings. Taking the overtime out of either of the employer's figures left Mr Boston below the threshold. For example, $212,690 less $78,885 overtime is $133,805.

The objection was dismissed, and the matter was to be programmed for the next stage: deciding whether the dismissal was actually unfair.

What this means for you

If you are a FIFO or site-based worker on a high gross income, do not assume you are shut out of an unfair dismissal claim. What matters is your rate of earnings when you were dismissed, and overtime that rises and falls with the roster may not count at all. Allowances paid at a fixed rate usually will.

The result depends on the facts. Overtime that is built into a fixed, regular roster, as in Foster and Cross, can be counted. Your contract, your roster and your payslips are the evidence, so keep them.

If you are an employer, it is worth checking these numbers carefully before raising a high income objection. The high income threshold is indexed each 1 July and has been $190,100 for dismissals from 1 July 2026. An unfair dismissal application must be lodged within 21 days of the dismissal taking effect.