“Manager” is more than just a title

Key Takeaways

• Employers should consider the eligibility of unfair dismissal application when terminating high-income employees.
• Employers should also consider the role classification and managerial title in comparison to their duties, intended roles and responsibilities and supervisory authority.
• Award coverage should also be considered and employers be mindful that even though an employee might earn above the high-income threshold, there are other legal avenues available to employees to address an unfair dismissal application.

Facts

• Mr Mark Evans was a high-income employee, covered by an award, working for Total Essential Services Group Pty Ltd (TESG) as a Manager of Fire Engineering of New South Wales.
• Although it was agreed that Mr Evans had completed the minimum probation employment period of six months, his employment was terminated by reason of that he did not complete this period successfully.
• It was also agreed that Mr Evans’ employment with TESG was not covered by an enterprise agreement.
• Mr Evans filed an unfair dismissal application for remedy to the Fair Work Commission (FWC) under section 394 of the Fair Work Act 2009 (Cth) (FW Act).

Breach

• TESG filed a jurisdictional objection application on the basis that Mr Evans is not eligible to file an unfair dismissal application due to his income being above the high-income threshold. TESG also argued that Mr Evans’ position exempted him from being covered by an award.
• However, Mr Evans provided evidence that his position was technical rather than managerial. His managerial position was merely a title as he did not have any direct reports.

Decision

• Section 382 of the FW Act provides that:

A person is protected from unfair dismissal at a time if, at that time:

  (a)  the person is an employee who has completed a period of employment with his or her    employer of at least the minimum employment period; and

 (b)  one or more of the following apply:

        (i)  a modern award covers the person;

       (ii)  an enterprise agreement applies to the person in relation to the employment;

      (iii)  the sum of the person’s annual rate of earnings, and such other amounts (if any)       worked out in relation to the person in accordance with the regulations, is less than              the high-income threshold.

• In accordance with the above, FWC found that Mr Evans was protected from unfair dismissal and his employment was covered by the modern award, even though his earning is not less than the high-income threshold.
• FWC also found it difficult to classify Mr Evans’ position managerial as a whole and TESG was unable to establish that any direct reports to Mr Evans.
• TESG’s jurisdictional objections were dismissed and Mr Evans’ unfair dismissal application will be progressed to as per its usual process.

Mark Evans v Total Essential Services Group Pty Ltd. [2023] FWC 1822 (26 July 2023)