Unfair dismissal: who is protected?

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An employee whose income exceeds the high income threshold (currently $142,000) is not protected under the Fair Work Act from unfair dismissal unless his or her employment is covered by an enterprise agreement or modern award; s.382

This issue of coverage can be very complex and difficult to assess. Here is an example of the principles at play from a recent decision of the Fair Work Commission on just this point.

“Determination of whether the Award covers Mr Terrey-Ocock’s employment for the purposes of s.382(b)(i) of the Act involves an assessment of “the nature of the work and the circumstances in which the employee is employed to do the work”  4. Accordingly, it is necessary to consider the ‘principal purpose’ of Mr Terrey-Ocock’s position as Senior Principal. In Carpenter v Corona Manufacturing Pty Ltd5, a full bench of the then Australian Industrial Relations Commission provided guidance on applying the principal purpose test:

“In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties”.

The Respondent submits that the Award does not cover Mr Terrey-Ocock’s employment with the Respondent because the position held by him prior to his dismissal was not a position which fell within any of the classifications listed in Schedule B to the Award. In particular, the Respondent submits that duties of the nature described in the Level 4-Professonal classification did not constitute the duties that constitute the principal purpose of Mr Terrey-Ocock’s position with the Respondent. 6

There are a number of factors which may be taken into account in undertaking a principal purpose assessment, none of which are singularly determinative. In an analogous matter of Tucker v Digital Diagnostic Imaging 7, the Commission opined that factors relevant to determining whether the duties of the applicant in that case aligned to the description provided in the Award for the Level 4-Professional classification included:

“•  the contents of any job description, person specification or job advertisement

  • the level of remuneration assessed against award levels of remuneration and also considered in the context of remuneration levels within the employing organisation
  • the actual time occupied in different duties (a substantive role/function analysis)
  • the status and level of the position occupied within the organisational structure
  • possession or absence of particular qualifications and whether such qualifications are necessary to the exercise of the primary functions that are performed
  • the exercise of authority and direction over others including in particular, the extent of such authority
  • the level of importance and relevance of particular duties in the context of the employing organisation’s overall purpose
  • the level of decision-making capacity in the context of the employing organisation’s overall operation
  • the nature and extent of any role as representative of the employing organisation to third parties”. 8

These factors will be considered in turn below.

Having considered the various factors that are mentioned above, I find that the principle purpose of Mr Terrey-Ocock’s position of Senior Principal was a senior leadership role, and was not to perform the duties of the nature described in level 4 (or any other classification) of the Award.

The evidence demonstrates that the role of Senior Principal within the Respondent’s business involved senior management responsibility for large and complex information technology projects, combined with responsibility for business development and significant revenue generation. Whilst not conclusive by itself, Mr Terrey-Ocock’s earnings significantly exceeded the minimum wage payable to a Level 4 Professional employee under the Award. He exercised significant authority and direction over other employees within the Respondent’s organisation, and his description of his role in his LinkedIn profile supports a finding that the principle purpose of his position was that of a senior leader within the Respondents organisation, and not the performance of the duties described in level 4 of the Award.

Accordingly, I find that he is not “employed in the classification in the award”.

Terrey-Ocock v Infosys Management Consulting Pty Ltd T/A Infosys Consulting (20189) FWC 879 delivered 13 February 2018 per Dean DP