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FWC clarifies manager’s right to unfair dismissal

Bill Fitzgerald

AREEA principal employee relations consultant Bill FitzGerald reviews a recent decision from the Fair Work Commission clarifying that professional employees primarily engaged in managerial tasks are not covered by modern awards and lack jurisdictional capacity to make a claim for unfair dismissal.

IN this case the employee of engineering consulting firm Fyfe Earth Partners was engaged as a manager but also as part of that role performed engineering duties.
The worker claimed that he was covered by the Professional Employees award and therefore had the jurisdictional competence to make a claim of unfair dismissal to the Fair Work Commission.

In determining this crucial issue, the Commission first decided that the employee was indeed within the coverage of the award, but it was required to consider whether he was employed in a particular classification included within the award.

The Commission examined the employee’s role in the context of what the principle purpose of his employment was and whether the description of duties or tasks aligned to the award classification descriptors.

In particular, the Commission reviewed the time spent on various duties, the nature of the work and the circumstances under which the employee was to do the work.

In this case, it was found the employee was engaged as a manager on an annual salary of more than $210,000 per annum and that he held the relevant qualifications to be a graduate member of Engineers Australia.

It was further necessary for the Commission to determine whether these qualifications were required for the adequate discharge of some part of his duties.

In finding that the employee did at times perform engineering duties, the Commission determined that he was employed primarily as a manager.

Further, the Commission determined that there was a distinction between carrying out duties of a professional engineer, and a professional engineer using their knowledge, skills and experience in carrying out the roles and duties of a manager.

“[The employee] was not substantively an engineer undertaking a management role, he was fundamentally a senior manager who also did some engineering work, given his particular qualifications, as a minor part of his work,” Commissioner Hampton said.

“Although not decisive in themselves, the fact that discussions and directions between the worker and his manager, and the issues raised during the performance appraisal exercises, did not touch upon any technical or operational engineering matters, is consistent with the above findings.

“Accordingly, even if undertaking professional engineering duties as defined, he was not performing a role falling within…the Professional Employees Award.”

The Commission found the worker was fundamentally a senior manager who did some engineering work in line with his particular qualifications, and was therefore not covered by the award, subsequently excluding him from making a claim for unfair dismissal under the Fair Work Act 2009.

Read the full decision here.

Implications for Employers

Since the Fair Work Act 2009 came into effect, there have been a number of cases effectively covering employees initially thought to be excluded from jurisdiction to make a claim for unfair dismissal.

There is a general misconception that employees whose salary is in excess of the $133,000 threshold cannot make a claim, but precedents have demonstrated that if employees are covered by a modern award or enterprise agreement, these employees can make a claim.

It is crucial that advice is sought in the drafting of contracts of employments and position descriptions to ensure such employees are not inadvertently covered by awards or agreements, potentially risking claims for unfair dismissal.

Contact your local AREEA office to speak to one of our workplace relations consultants for guidance, advice and information about this important issue.

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