Baher Zaghlool v Geohart Consultants Pty Ltd

[2015] FWC 1640

[2015] FWC 1640

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Baher Zaghlool
v
Geohart Consultants Pty Ltd
(U2014/13797)

VICE PRESIDENT WATSON MELBOURNE, 12 MARCH 2015

Application for relief from unfair dismissal - Threshold jurisdictional issue to be determined - Whether applicant is a person protected from unfair dismissal - High income threshold - Coverage of Professional Employees Award 2010 - Fair Work Act 2009, ss. 394, 382.

[1] This decision is an amended version of a decision given in transcript on 27 February 2015 in relation to an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) by Baher Zaghlool in relation to the termination of his employment with Geohart Consultants Pty Ltd.

[2] The matter arises under s.382 of the Act as to whether the applicant in this matter, Dr Zaghlool, is a person protected from unfair dismissal for the purposes of that section. The relevant issue involves paragraph (b) of s.382 and whether one or more of the provisions in that paragraph apply to Mr Zaghlool. Paragraph (b) is as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

…

(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 such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: High income threshold indexed to $133,000 from 1 July 2014”

[3] One of those issues in sub-clause (iii) involves a consideration of the annual rate of earnings and whether it is less than the high income threshold. It is clear that that particular option does not apply to Dr Zaghlool and, if that was the only consideration involved in this matter, this application would end there. However, Dr Zaghlool contends that he was covered by a modern award, the Professional Employees Award 2010 (the Award), and that is an alternative basis by which he can establish that he was protected from unfair dismissal for the purposes of s.382.

[4] The evidence and submissions in this matter related to that question, the nature of the duties and the role of Dr Zaghlool, and essentially whether he is covered by the Award.  The Award has a coverage clause which says that the Award covers employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule B to the Award.  Schedule B to the Award contains detailed descriptions and definitions of the various classifications covered by the Award.  It commences with the entry level, and has a graduate level, professional engineer, professional scientist and information technology employee, and proceeds to the highest level which is a Level 4 Professional.

[5] In my view, it is important, given the nature of Dr Zaghlool’s employment as manager geotechnical, mining and civil/principal engineer, to determine whether that highest level applies to his employment or whether it is intended to apply to a lower level of engineer.  That is relevant because, clearly, the role involves managerial responsibilities and could well fall within a classification much higher than the Award classification.

[6] The focus of my consideration is the definition of Level 4 Professional. It states

“(a) An employee at this level performs professional work involving considerable independence in approach, demanding a considerable degree of originality, ingenuity and judgement, and knowledge of more than one field of, or expertise (for example, acts as their organisation's technical reference authority) in a particular field of professional engineering, professional scientific/information technology field or professional information technology field.

(b) An employee at this level:

(i) initiates or participates in short or long range planning and makes independent decisions on professional engineering or professional scientific/information technology policies and procedures within an overall program;

(ii) gives technical advice to management and operating departments;

(iii) may take detailed technical responsibility for product development;

(iv) coordinates work programs; and

(v) directs or advises on the use of equipment and materials.

(c) An employee at this level makes responsible decisions not usually subject to technical review, decides courses of action necessary to expedite the successful accomplishment of assigned projects, and may make recommendations involving large sums or long range objectives.

(d) Duties are assigned only in terms of broad objectives, and are reviewed for policy, soundness of approach, accomplishment and general effectiveness.

(e) The employee supervises a group or groups including professionals and other staff, or exercises authority and technical control over a group of professional staff. In both instances, the employee is engaged in complex professional engineering or professional scientific/information technology applications.”

[7] It is clear from that definition that that level does not cease to apply simply because there is supervision or management of other employees or that management functions such as business development, project management and client relationships are also involved.

[8] It is necessary to consider that definition against the job description attached to the contract of employment under which Dr Zaghlool worked and I have had regard to that job description as well as the evidence that he gave about the nature of his work.  It is clear to me, on the basis of that evidence, that there is a significant technical engineering component to Dr Zaghlool’s employment and, while supervising a small team he was required in that role to have a very hands-on approach to the delivery of professional engineering services to clients of Geohart Consultants.

[9] In my view, the nature of his role falls within the description of a Level 4 Professional in the Professional Employees Award. Therefore, his employment was covered by the Award and he is therefore a person protected from unfair dismissal under s.382 of the Act.

[10] It follows that the jurisdictional objection relating to s.382 must be dismissed and the application is able to proceed.

[11] The other jurisdictional matters relating to the timing of the lodgement of the application have not been pursued.  The merits of the application have not been addressed at all in relation to the matter before me today.  The merits include whether, if the employer is a small business employer, the termination was consistent with the Small Business Fair Dismissal Code.  They are matters that have not been addressed and would need to be considered further.

VICE PRESIDENT WATSON

Appearances:

Dr Baher Zaghlool on his own behalf.

Mr Wouter Hartman for Geohart Consultants Pty Ltd.

Hearing details:

2015.

Melbourne.

27 February.

Final written submissions:

Dr Baher Zaghlool on 23 February 2015.

Geohart Consultants Pty Ltd on 20 January 2015

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