Dismissed employees fails to convince FWC of eligibility for unfair dismissal claim

Dismissed employees fails to convince FWC of eligibility for unfair dismissal claim

Dismissed employees fails to convince FWC of eligibility for unfair dismissal claim

A dismissed salaried employee has failed to convince the Fair Work Commission that he was covered by an Award and, therefore, should be able to contest his dismissal before the Commission.

The employee ‘LL’ commenced employment with Charles Hall Contracting Co. Pty Ltd (CHC) as a Safety Advisor in January 2021 and was later promoted to the position of Supervisor on a salary of $150,000, excluding superannuation. He held this position when he was terminated on 7 June 2022.

In evidence before Commissioner Paul Schneider, the Supervisor asserted that his employment was subject to either the Building and Construction On-Site Award 2020 (B&C Award) or the Miscellaneous Award 2020 (Misc Award).

CHC submitted that he received additional benefits supplementary to his salary package, which raised his earnings above the high-income threshold (at the time of his dismissal, $158,500).

In addition, their position was that the B&C Award does not contain any classification for employees such as LL who are engaged in a supervisory position.

CHC further submitted that the Misc Award would not apply to LL as supervisory positions in the civil construction sector have not traditionally been covered by an Award.

Although noting that at times the Supervisor undertook other duties such as cleaning crib facilities, breath testing of employees, and general labouring tasks, Commissioner Schneider noted,

“The Applicant took on additional duties and tasks that were outside his primary function as a supervisor … However, on assessment of the materials before me, it is clear these additional tasks were not the primary or central duties of his role and that completing these tasks, although clearly commendable, was not the principal purpose of his engagement with the Respondent”.

Commissioner Schneider noted,

“I am satisfied that the Applicant was engaged in the senior position of Supervisor in the civil construction industry and that this position has not traditionally been covered in classifications of the B&C Award … I am (also) satisfied that the Applicant is not covered by the Misc. Award as he is an employee excluded under section 143(7) of the Act”.

In assessing the value of a motor vehicle provided to the Supervisor, which allowed him to journey from his own residence to the work site, Commissioner Schneider assigned the value of the private motor usage at $10,679.68 as a benefit to the employee.

In conclusion, Commissioner Schneider determined that the employee’s salary ($150,000) combined with their private motor vehicle usage amounted to a total of $160,679.58, therefore exceeding the high-income threshold.

The application was dismissed.

LL v Charles Hull Contracting Pty Ltd (U2022/6674) 8 March 2023

For queries about salaried employees, award classifications, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 373.0823

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