More than words: An Award coverage employee can still claim even though he was over the unfair dismissal cap

Substance over form. That was the sting in the tail in a recent jurisdictional hearing before the Fair Work Commission.

It sounds obvious, and straight forward. But in Kaufman v Jones Lang Lasalle [2017] FWS 2623, the employer learned this lesson the hard way. This case is a warning to all employers about ensuring that an employee’s role matches their title, in both substance and form.

In Kaufman’s case, the Fair Work Commission allowed an employee who was paid above the unfair dismissal income threshold to pursue an unfair dismissal claim because he was found to be covered by an Award.

Mr Kaufman’s role was as a Marketing Sales Director.

Mr Kaufman alleged that he was allowed to make an unfair dismissal claim because his duties and responsibilities matched those under the classifications of the Real-Estate Industry Award 2010.

The Commission found that:

1. There was nothing in his regular duties that can be described as a managerial function and he had no direct reports;
2. The title of director was effectively a symbolic position accorded by Kaufman’s employer;
3. His position did not in any way significantly impact the duties that he performed; and
4. The very fact that his title had changed and that he became a part of a “diverse team of leaders” did not mean that he was not covered by the Award.

In short, the Fair Work Commission concluded that Mr Kaufman was an experienced property sales representative who was principally responsible for attracting and executing high value real-estate transactions and not a manager.

This decision is a significant reminder to employers to get the details of employment right. Merely appointing an employee to a management position, whose remuneration may exceed the Unfair Dismissal cap, may not be enough to protect you from an unfair dismissal claim.

If you would like advice about Award compliance and your senior staff, email or call Adam Foster at Lewis Holdway Lawyers on (03) 9629 9629.