An employee is earning well in excess of $100,000 per year. If their employment is terminated, surely they can’t bring a statutory unfair dismissal claim?

As the Fair Work Commission decision in Kaufman examined below demonstrates, this is not always case.

The Facts

The worker filed an application with the Fair Work Commission alleging that the termination of his employment was unfair. The employer raised two jurisdictional objections, one of which was that the worker was not a person protected from unfair dismissal under the Fair Work Act.

The issue became whether the worker was engaged under the Real Estate Industry Award 2010 (Award), which it was asserted, would allow the worker to bring such a claim despite the level of his earnings. The worker’s rate of annual earnings at the time of his dismissal was well above the “high income threshold” (currently $138,900 per annum). This would mean ordinarily that the worker would have no entitlement to bring the application, unless his employment fell under the Award.

The worker claimed that the classifications of “property sales representative” and “property sales supervisor” under the Award were relevant to his employment. There was no dispute that the worker was engaged in the real estate industry.

In response, the employer argued that the role in which the worker was engaged at the time of his dismissal, referred to as Regional Director, was a senior management position that went “well beyond the classifications in the Award”.

The Findings

Unfortunately for the employer, the Commission did not accept that the worker’s role was one of senior management.

Evidence was given that the worker’s day-to-day duties included meeting revenue targets, which required the worker to sell property.

Deputy President Gostencnik noted in relation to evidence given by one witness with respect to the worker’s duties:

“(the) evidence on this point sounds much like the (worker) was required to use his personal initiative and source prospective sellers and buyers of real property or businesses, a task indicative of a Property Sales Representative under the Award.”

The Deputy President went on to find:

In my view, the evidence discloses that the (worker) was a high performing employee principally responsible for attracting and executing high-value real estate transactions. He had no managerial responsibilities and no direct reports.”

The application was relocated to the Commission’s Unfair Dismissal Case Management Team to be dealt with. The other jurisdictional issue raised by the employer (that the dismissal arose as a result of a genuine redundancy), would be considered in conjunction with the merits of the case.

Conclusion

While this decision turned on its own facts, its serves to demonstrate that just because a worker is a high-income employee does not necessarily prevent them from bringing an unfair dismissal claim. In this case, the key to the worker’s success was the fact that they could demonstrate that their duties brought them within a relevant Award classification. Had the worker’s duties been primarily managerial, and took him outside of the relevant Award classification, matters would have been different.

Employers should be mindful of whether an employee who is to be dismissed falls under a modern award, regardless of their level of income.

Further, merely giving an employee a managerial job title will not be sufficient to remove them from an award if the reality is different.

This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice.

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