Senior Sounding Position Title No Protection From Unfair Dismissal

A recent jurisdictional related decision of the Fair Work Commission serves as a reminder to employers that a senior sounding position title does not necessarily exclude an employee from being covered by a modern award or from making an unfair dismissal claim.

The employee had been employed by a real estate business as a property manager. The position title the business gave the role was Director of Asset Management.

In seeking to have the matter dismissed for jurisdictional reasons, the employer asserted two jurisdictional objections. The first was that the employee was not covered by a modern award during her employment. The second is that the employee's annual rate of earnings exceeded the high income threshold when the car allowance that was paid to her is taken into account.

Upon a review of the evidence put before it, the Commission found that the 'principal purpose' of the employee's employment was to work as a property manager. Such a position type, and after reviewing the related duties, left the Commission with the view that her employment was clearly covered by the terms of the Real Estate Industry Award 2010. Therefore her employment was subject to and covered by the terms of that Award at the time of her dismissal.

As a result, whether or not the employee's remuneration would have otherwise been calculated to be above the 'high income threshold' (currently $142,000.00 p.a.) was not relevant. The jurisdictional objections were dismissed and the employee was entitled to make an unfair dismissal claim.

Thought points:

• A senior sounding position title will not, in and of itself, preclude the application of a modern award.

• Employers need to consider the 'principal purpose' of a position when determining if an employee is, or remains, covered by a modern award.

• If in doubt, seek advice before committing your business to a position that may not be defendable if tested at a later time.

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