Pendlebury
workplace law

Pendlebury Workplace Law is a specialist workplace relations and employment law legal practice based in Sydney.

Managerial Duties were not an “add-on” and the Award does not Apply – FWA Full Bench say in Unfair Dismissal Claim Appeal

Manager Dismissed Not Award Covered

Manager fails in arguing his managerial duties were simply an ‘add-on’ to his technical responsibilities, before FWA.

A consultant, who became a manager, for a consulting firm, Thomas Duryea Consulting Pty Ltd, has failed to successfully appeal against a FWA decision of Senior Deputy President Drake, that his managerial duties excluded him from the unfair dismissal jurisdiction.

The full bench, made up of Senior Deputy President Richards, Deputy President Harrison and Commissioner Cambridge, rejected the former manager’s argument that Senior Deputy President Drake was wrong in ruling that his managerial duties were not just an ‘add-on’ to technical responsibilities which thereby kept him under the coverage of the Professional Employees Award 2010

The full bench found that Senior Deputy President Drake had correctly taken into account:

–         the evidence of the Company’s Chief Executive;

–         the former employee’s position description which outlined a range of managerial duties;

–         the key performance indicators (KPIs) based on management of employees and finances and

–         a remuneration framework “…of some $200,000 (exclusive of 9% superannuation) plus access to a $100,200 bonus upon achievement of a suite of management-related KPI’s”.

The full bench said that Senior Deputy President Drake had correctly applied Australian Industrial Relations Commission decisions relating to assessing the “principal purpose” of a person’s employment.  The bench said that Carpenter v Corona Manufacturing Pty Ltd [2002] PR925731 established that an employee’s estimation of the quantification of their workload was not sufficient to determine a relevant award classification, “One reason for this (and there will be more) is that an employee might perform duties (where they are not closely supervised) which the employee prefers, or believes to be required, but which are not the duties the employee is necessarily directed (or employed) to perform…This is why the Full Bench articulated the task of ascertaining the principal purpose of the employment as requiring ‘an examination of the nature of the work […] the employee is employed to do'”.

Mr Nicholas Menemy v Thomas Duryea Consulting Pty Ltd [2012] FWAFB 7184 (28 August 2012)

Brooke Pendlebury
Monday, September 3, 2012
Dismissal, News