The recent Fair Work Commission (FWC) case of Evans v Total Essential Services Group Pty Ltd [2023] FWC 1822 serves as an important reminder to employers regarding the correct classification of their employees’ roles.

Mark Evans was an employee of Total Essential Services Group Pty Ltd (TESG) from 4 October 2022 to 24 April 2023 when he was terminated on the basis that he did not successfully complete his probationary period.

Mr Evans made an application to the FWC alleging unfair dismissal from his employment with TESG.

TESG filed a response to Mr Evans’ unfair dismissal application and submitted that Mr Evans earned more than the high income threshold and therefore could not bring his unfair dismissal application. TESG also submitted that Mr Evans was not covered by a relevant Award.

When is a person protected from unfair dismissal?

Under the Fair Work Act 2009 (Cth) (the Act) a person is protected from unfair dismissal if, at the 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 if applicable, other amounts worked in relation to the person in accordance with the Fair Work Regulations, is less than the high income threshold.[1]

“At the time” in the context of protection from unfair dismissal has been interpreted to be from the time of dismissal.[2] The relevant high income threshold in accordance with the Act was $162,000.

The parties did not dispute:

1. that Mr Evans had completed the relevant minimum employment period of 6 months in accordance with the Act; or
2. Mr Evans had been dismissed by TESG.

The issue of whether Mr Evans was protected from unfair dismissal  turned on whether at least one of the following applied:

1. A Modern Award covered Mr Evans’ employment; and
2. Mr Evans annual rate of earnings was less than the high income threshold.

Decision and reasons

The FWC determined Mr Evans’ annual rate of earnings for the purpose of the Act was a $152,000 base salary, plus $15,794.34 being the the private use component of his vehicle allowance, making a total of $167,794.34. This was over the high income threshold.

Whether a Modern Award covered Mr Evans’ employment depended on whether Mr Evans’ position fell within the Professional Employees Award 2020. If his position was a “wholly or princaplly managerial position” Mr Evans position would not be covered by the Award.

TESG argued that Mr Evans was not covered by the Award and relied upon the title of Mr Evans’ position as provided in the final employment contract as “Manager Fire Engineering – NSW”. Mr Evans’ position in an earlier version of the contract was “Senior Fire Engineer”.

Mr Evans relied on his job description which outlined the functions he was to perform in the role of “Manager Fire Engineering – NSW”. Mr Evans gave evidence that his job description had no supervision duties and that no employee of TESG reported to him.

Ultimately the FWC’s view was that the evidence of what work Mr Evans actually undertook was more persuasive than the title on his employment contract.

The FWC held that Mr Evans did not occupy a “wholly or principally managerial position” and his role fell within the “Level 4 – Professional” classification under the Award.

Accordingly Mr Evans was covered by an Award and entitled to make a claim for unfair dismissal.

What Employers can learn from the decision

The decision is an important reminder that employees who are above the high income threshold are still protected from unfair dismissal if their role is covered by an Award.

The decision also serves as a reminder to employers that the FWC will look at substance over form when determining whether an employee is covered by an Award. Just because an employee is given a job title that is seemingly outside the scope of an Award does not mean the employee won’t be covered by the Award if the actual nature of the role is one that is covered by the Award.

Employers should exercise caution and seek legal advice before terminating employees.

Hillhouse Legal Partners has extensive experience in employment matters. Please feel free to contact us on (07) 3220 1144 for all employment and workplace relations advice.

The information in this article is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.

[1] s382 Fair Work Act 2009 (Cth)

[2] Zappia v Universal Music Australia Pty Ltd (2012) 225 IR 122, 125 [9].