Damien Rolachon v Tilley Soaps Australia T/A Tilley Soap Australia Pty Ltd

[2021] FWC 429

[2021] FWC 429

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Damien Rolachon
v
Tilley Soaps Australia T/A Tilley Soap Australia Pty Ltd
(U2020/14503)

COMMISSIONER LEE MELBOURNE, 2 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 5 November 2020, Mr Rolachon (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Tilley Soaps Australia T/A Tilley Soap Australia Pty Ltd (the Respondent). The Applicant seeks compensation. The Respondent has raised a jurisdictional objection to the application that the Applicant is not a person protected from unfair dismissal.

When can the Commission order a remedy for unfair dismissal?

[2] Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

Background

[4] I listed the matter for Conference/Mention on Friday 11 December 2020, where I discussed with the parties the prospects for conciliation to resolve the application prior to the matter proceeding to a formal determinative conference or hearing. The application did not resolve at the Conference/Mention. As such, I discussed with parties the procedural matters for the application.

[5] The Respondent raises a jurisdictional objection, asserting that the Applicant was not covered by a modern award or an enterprise agreement and that his annual rate of earnings exceeded the high income threshold. Therefore, the Applicant is not a person protected from unfair dismissal. 1 Directions were made to deal with the jurisdictional objection before dealing with the merits of the application.

[6] On 11 December 2020 I issued amended Directions and a Notice of Listing outlining the Jurisdictional Conference/Hearing details.

Permission to appear

[7] The Applicant sought to be represented before the Commission by a lawyer or paid agent.

[8] Relevantly, section 596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission. Permission was granted to the Applicant to be represented by a lawyer or paid agent as I was satisfied that there was some complexity in the matter and granting permission would enable the matter to be conducted more efficiently.

Submissions and evidence

[9] The Applicant filed submissions and evidence in the Commission on 29 December 2020. The Respondent filed submissions and evidence in the Commission on 12 January 2021.

[10] A hearing was held via Microsoft Teams on 22 January 2021. The Applicant did not file a witness statement. During the hearing the Applicant answered a number of questions that I put to him. No witness statements were provided from the Respondent. The relevant facts as to the duties of the Applicant when he was working for the Respondent are largely not in dispute. This is because the Applicant has provided a position description for his position which he wrote while he was employed by the Respondent. The Respondent did not dispute the accuracy of that document and indeed relied on it to make their submissions. 2

[11] As to other jurisdictional matters, it is not in contest, and I am satisfied that:

•  the Applicant has been dismissed within the meaning of the FW Act;

•  the application was made within the statutory time period;

•  the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period; and

•  the dismissal was not a case of genuine redundancy.

[12] The Small Business Fair Dismissal Code is not relevant in this matter.

[13] The only matter in dispute is whether the Applicant is a person protected from unfair dismissal and it is to that matter which I now turn.

Modern award coverage / Applicant’s annual rate of earnings

[14] The Applicant was engaged for a little over one year as “Head of Product Development”.

[15] The Applicant’s renumeration at the time of his dismissal was $180,000 per annum, plus 9.5% superannuation. Furthermore, his monthly mobile phone plan was paid for by the Respondent. At the time of the Applicant’s dismissal, the high income threshold was $153,600. The Applicant’s rate of earnings was significantly in excess of this amount.

[16] It was not submitted and there is no evidence that the Applicant was covered by an enterprise agreement.

[17] Section 382 of the FW Act 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:

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

[18] It is clear that the Applicant does not fall within s.382(b)(ii) or (iii). Therefore, it is apparent that unless it can be established that the Applicant was covered by a modern award, he is not a person protected from unfair dismissal.

[19] The Applicant contended in his written submissions that he was covered by the Manufacturing and Associated Industries and Occupations Award 2020 (the Manufacturing Award). However, at the commencement of the hearing, the Applicants representative changed that submission to indicate that:

“…my colleague was working on this matter previously, as you know, and doesn’t have as much experience as I do. So I am taking over this matter. And having looked through all the documentation and everything, I believe that Mr Rolachon is in fact covered by the Professional Employees Award. He does have a master’s degree in business, and he was working as a professional employee.” 3

Further elaborating on its position, the Applicant submitted as follows:

“…we believe the Professional Employees Award is more suitable. But we do believe that [the Manufacturing Award] would have covered him, if not for the Professional Employees Award being more suitable”.  4

[20] The Respondent disputes that either award covers the Applicant. In the circumstances, it is necessary to consider if the Applicant is covered by either award.

Was the Applicant covered by the Manufacturing and Associated Industries and Occupations Award 2020?

[21] The Applicant’s submissions and evidence filed pursuant to the directions did not shed a great deal of light on the basis for the claim that the Applicant was covered by the Manufacturing Award.

[22] The material submitted included copies of a number of pay slips that the Applicant received during his employment. The payslips include a note at the top which reads:

“Award: Salary (Manufacturing & Assoc Ind & Occupations Award 2010)” 5

It is presumed, though it was not clear from the submissions of the Applicant, that this is evidence that the Applicant is covered by the Manufacturing Award.

[23] The Respondent submitted that:

“The applicant cites his pay slips stated the Manufacturing and Associated Industries and Occupations Award 2020 (the Award); this is a standard reference that is on all company pay slips and is a clerical error in the set up phase of our Payroll System (Wage Easy). The majority of our employees (specifically factory employees) do come under this award, however.” 6

[24] The Applicant also provided a copy of an Award update document that was circulated by the Respondent’s staff via email. The Respondent submits that:

“The email dated 26th May 2020 (cited by the applicant) was sent by HR to pay roll and all Managers (as can be seen on the email). It is a common training practice by HR to include all Managers in Fair Work updates and changes.” 7

[25] The evidence of the note on the payslips and the circulation of the Award update document provide a basis for the Applicant to have formed a view that he was covered by the Manufacturing Award. However, they do not provide a basis to find that the Applicant was in fact covered by the Manufacturing Award.

[26] What is determinative is whether the Applicant occupied a position and performed duties which fell within the coverage of the Manufacturing Award. The Applicant provided a position description which he says applies to his position. 8 The Applicant’s evidence is that he wrote this position description himself, as the Respondent did not supply him with one. The Respondent did not dispute that the position description accurately describes the Applicant’s role and in fact relied on it in support of its submissions.9

[27] The Respondent also submitted that:

“The applicant has no relative qualification to the [Manufacturing] Award’s classification levels C1 – C14.

Modern awards are industry or occupation-based and apply to employers and employees who perform work covered by the award. Therefore, whilst the Award does cover the industry of Tilley Soap (manufacturing) it does not cover the applicant’s position scope as Head of Product Development. The PD sent by the applicant clearly shows this.” 10

The applicant’s contract of employment is a common law agreement and does not mention an Award.”

Law to be applied and the relevant award coverage provisions

[28] Section 48 of the FW Act provides:

“A modern award coversan employee … if the award is expressed to cover the employee”

[29] The Manufacturing Award in question has a coverage clause at clause 4. Clause 4 provides as follows:

“4.1 This award covers employers throughout Australia of employees in the Manufacturing and Associated Industries and Occupations who are covered by the classifications in this award and those employees.”

[30] Clause 4.8 provides a definition of Manufacturing and Associated Industries and Occupations and relevantly includes the following:

“(a) the following industries and parts of industries:

(i) the manufacture, making, assembly, processing, treatment, fabrication and preparation of:

•  the products, structures, articles, parts or components set out in clause 4.9; or

•  the materials or substances set out in clause 4.9; or

•  any products, structures, articles, parts or components made from, or containing, the materials or substances set out in clause 4.9.

(ii) the coating, painting, colouring, varnishing, japanning, lacquering, enamelling, porcelain enamelling, oxidising, glazing, galvanising, electroplating, gilding, bronzing, engraving, cleaning, polishing, tanning, dyeing, treatment and finishing of any of the items referred to in clause 4.8(a)(i).”

[31] Clause 4.9 sets out, for the purposes of clause 4.8(a)(i), what is included:

“4.9 For the purposes of clause 4.8(a)(i), the products, structures, articles, parts, components, materials and substances include:

…

non-food grocery products including candles, soap, soap powders and extracts, soda, blue (washing), boot blacking, boot polish, boot paste, boot stains, blacklead, charcoal, coal dust, cloudy ammonia, dubbin, ebonite shine, furniture polish, glycerine, greasers, harness dressing, harness compounds, ink, knife polish, kindlers, linoleum and oilcloth polish, metal polish, moulders, blacking, oils, phenyle, plumbargo preparations, stove polish, and vaseline.”

[32] It is common ground that the employer is covered by the Manufacturing Award to the extent that it is engaged in the manufacture of soap and candles.

[33] However, as is clear from the analysis above, for the Applicant to be covered by the Manufacturing Award, that the Applicant must also be covered by the classifications in the Award (clause 4.1).

Principle purpose test

[34] To determine whether an employee is employed under a classification within a modern award the Commission must assess the nature of the work and ascertain the principal purpose for which the employee was employed. 11

[35] The Commission must make more than a ‘mere quantitative assessment’ of the time the person spends performing certain types of duties. 12

[36] This test is applied to the work performed at the time of the dismissal, not at some earlier time as an employee may prefer performing certain duties, which are not necessarily the ones directed to be performed by the employer. 13

Consideration of whether the Applicant is covered by the Manufacturing Award

[37] The nature of the work and the principle purpose for which the Applicant was engaged is reflected in the position description that the Applicant drafted.

[38] The position description sets out that the Applicant reported directly to the Managing Director. The position description states that the purpose of the position is “to build the strategy and roadmap of new products and to authorize new projects based on commercial performance,” and that it is a “leadership role within the Senior Management Team… contributing to the overall strategy and success of the business.”

[39] It is apparent from the position description that the Applicant was a very senior manager within the organisation, reporting directly to the Managing Director as part of the Senior Executive, with the responsibility for managing new product development.

[40] Consistent with the purpose of the role, the responsibilities include:

•  Strategic direction, enhancement, and financial performance of new products

•  Ensuring regulatory and financial obligations for new products are met

•  Overseeing creation and management of pricing models

•  Leadership and direction of a team of Project Manager Professionals

•  Assisting with coordination of a communications strategy for new products

[41] The Applicant also gave evidence that part of his job was “assisting in designing some of the boxes and marketing and things for the products.” 14

[42] It can be seen from the above that the Applicant’s position description clearly depicts a Senior Manager which encompassed a leadership role, strategic planning, financial management and product management. This was the principal purpose of the Applicants role. His role in assisting in box design and development was not the principal purpose of his role.

[43] In contrast, the Classification Structure and Definitions contained in Schedule A of the Manufacturing Award, includes the classification levels from C1 to C2 of the Manufacturing Award and the following classification titles:

•  Professional Engineer Professional Scientist

•  Principal Technical Officer

•  Leading Technical Officer

•  Principal Supervisor/ Trainer/Co-ordinator

[44] From levels C3 to C14, the classification titles are all associated with either engineering (e.g. Engineering Associate), Laboratory operations (e.g. Laboratory Technical Officer) or manufacturing (e.g. Manufacturing Tradesperson).

[45] It is apparent that the purpose of the role and responsibilities of the Applicant does not have any relevance to these classification titles in any respect. The role of the Applicant does not encompass any aspect of an engineering, laboratory, technical or manufacturing type activity.

[46] Consistent with the classification structure in Schedule A.3 of the Manufacturing Award, the classification definitions under A.4 of the Manufacturing Award sets out classification levels C14 to C8. The definitions that apply relate to an employee who is engaged in, even at the C8 level, primarily in engineering/manufacturing work.

[47] From C9 to C3, the definitions include tradespersons including (Electrical/Electronic) technicians involved in drawing, planning and technical tasks, through to C3 which describes employees engaged in:

“•  performing draughting, planning or technical duties which require the exercise of judgment and skill in excess of that required by an engineering associate at the C4 level; or

•  possesses the skills of an Engineering Associate/Laboratory Technical Officer—Level I in a technical field and exercises additional skills in a different technical field; or

•  is a laboratory employee who, with limited supervision, applies the full range of laboratory skills to individual projects and is involved in the supervision and training of other laboratory workers; or

•  is a laboratory employee who applies specialised technical skills, in addition to the full range of laboratory skills, to specific projects with minimum supervision.”

[48] Level C2, which covers Leading Technical Officer and Principal Engineering Supervisor/Trainer/Coordinator, describes an employee performing or coordinating work in more than one engineering, scientific or technical field and training and directing the work of engineering/production employees.

[49] A principle technical officer (C2(b)) is again involved in technical work requiring “mature technical knowledge.” The role also includes reference to project coordination and coordination of general and specialist employees. However, in performing these functions, the employee is to “apply knowledge” and/or guidance relevant in any or all of the fields of designing, planning and technical work required. There are then further references to work in a particular technical field.

[50] It can be seen from the foregoing that the principal purpose of the Applicant’s role, as described by him in his position description, bears no relationship to the type of work covered by Schedule A of the Manufacturing Award.

[51] It follows that the Applicant is not covered by the Manufacturing Award. He was in fact a Senior Manager. Even if the Applicant had a role in designing some boxes for the Respondent, this was far from the principal purpose of his role. For the foregoing reasons, I find that, at the time of dismissal, the Applicant was not covered by the Manufacturing Award.

Was the Applicant covered by the Professional Employees Award 2020?

[52] The Applicant submitted during the hearing that he is covered by the Manufacturing Award and the Professionals Award, but that the Professionals Award is the more appropriate. 15

[53] The Applicant made submissions that he is covered by the Professionals Award, as “he does have a master’s degree in business, and he was working as a professional employee.” 16

Further, that the Applicant is:

“…covered under the level 3 professional of the Professional Employees Award, where the duties are requiring the application of mature and professional knowledge. The work that he was performing did involve, I guess, future planning, financial performance and things, and directing those under him, the team that was under him, the project managers. He was also overseeing the management of pricing models, providing leadership and direction to those that reported to him. These are things that have been listed under the level 3 professionals, including essentially that the employee deals with problems for which it is necessary to modify established guides and devise new approaches, to assist in providing and advising of new approaches to do things. He also assisted with the design and development of some of the - some of the products - the designs for the boxes that the products were coming in. He was also assigning work to a team that directly reported to him, an essentially, we do believe that that does cover the position that he was performing.

…

He was under the belief throughout his employment that he was covered by the Manufacturing and Associated Industries Award, because it was on his payslip, and he was given the updates about it and things. We believe that that would cover him, however, we do believe that the Professional Employees Award is a more suitable award, and therefore he isn’t covered by the Manufacturing and Associated Industries Award, because he is more appropriately covered by the Professional Employees Award.” 17

[54] The coverage as described under clause 4 of the Professionals Award states as follows:

“4.1 This industry and occupational award covers employers throughout Australia as follows:

(a) Employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule A—Classification Structure and Definitions of the award and those employees.

(b) Employers throughout Australia principally engaged in the information technology industry, the quality auditing industry or the telecommunications services industry and their employees who are covered by the classifications in Schedule A—Classification Structure and Definitions.

(c) Employers throughout Australia principally engaged as medical research institutes with respect to their employees performing professional medical research duties who are covered by the classifications in Schedule B—Medical Research Employees and those employees.”

[55] When asked how the Applicant falls within the scope of clause 4.1, the representative for the Applicant submitted as follows:

“Under 4.1(a), that the employer has professional - the employee is performing professional engineering and professional scientific duties. The scientific duties themselves are not, I’m believing, applied. But the engineering aspect is the one that we believe does apply to Mr Rolachon.

…

Performing professional engineering. Because under the classification, that allows for a professional employee that provides new professional approaches and techniques, requires the application of mature professional knowledge, and recommendations being reviewed that are technically accurate and feasible.” 18

[56] In order to be covered by the Professional’s Award, the Applicant must fall within at least one of the categories outlined under clause 4.1 of the Professional’s Award. However, the Applicant was not engaged by an employer in any of the fields outlined under clause 4.1. It is apparent that the Respondent does not fall within clause 4.1(b) or (c) as they are not in the information technology, quality auditing, telecommunications or medical research industry. It is possible that the Respondent could be covered by the Professionals Award with respect to any engineering and scientific employees that work for them. However, the Applicant clearly does not perform any professional engineering or professional scientific duties.

[57] On this point, the Applicant’s representative agreed with me that:

“THE COMMISSIONER: Right. Now, you would agree with me, though - and if not, why not - that all of that has to be read in conjunction with 4.1(a), which says, “Employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties.” So what is set out in schedule A has to be read in that context, you would agree?

MS BOTH: Yes.

THE COMMISSIONER: It is about professional engineering and scientific duties. The applicant is not a professional engineer. He is not involved with engineering. He is involved in product development. Isn’t he? I’m just - - -

MS BOTH: Yes.” 19

[58] Therefore, it is apparent that the Applicant falls outside the scope of the coverage of the Professionals Award

[59] The Applicant’s submissions ignored the operation of clause 4 and focused on the wording of Schedule A.1.9 in the Professionals Award. 20 This submission tries to read A.1.9 devoid of its context. It is clear that A.1.9 (when one considers the wording of clause 4.1(a) which is directed to professional engineers and scientists, as well as the other descriptions in Schedule A of the Professionals Award which are directed at professional engineers and scientists) is describing the type of work at Level 3 from such employees, not professional employees at large.

[60] It is abundantly clear that the Applicant is not a professional engineer. It is also apparent from the position description that the Applicant’s role does not include engineering functions. Even if the Applicant had a role in “assisting in the design of some of the boxes”, 21 this falls far short of an engineering role contemplated under the Professionals Award.

[61] For these reasons, it is apparent that the Applicant was not covered by the Professionals Award. Nor am I satisfied that the Applicant, a Senior Manager, was covered by any other modern award.

[62] The Applicant is not covered by either the Manufacturing Award or the Professionals Award. The contention of the Applicant’s representative that he was covered by either award was misconceived. The Respondent’s submission that the claim the Applicant was covered by a modern award was “clutching at straws” 22 was, in my opinion a rather accurate one.

Conclusion

[63] I find that, at the time of dismissal, the Applicant was not covered by any modern award.

[64] The Applicant was not covered by an enterprise agreement at the time of dismissal, and his annual rate of earnings was above the high income threshold. Therefore, none of the circumstances set out in s. 382(b) of the FW Act applied to the Applicant.

[65] Therefore, at the time of dismissal, the Applicant was not a person protected from unfair dismissal.

[66] The application for an unfair dismissal remedy made by the Applicant is dismissed, and an order to that effect will be issued concurrently with this decision.

COMMISSIONER

Appearances:

A Both of Unfair Dismissals Australia for the Applicant.

J Fraser and P Arundel, Respondent.

Hearing details:

2021.
Melbourne (audio link via Microsoft Teams):
January 22

Printed by authority of the Commonwealth Government Printer

<PR726498>

 1   Fair Work Act 2009 (Cth) s.382.

 2   Respondent’s Outline of argument: objections at section 7(c).

 3   PN29.

 4   PN53.

 5   Court Book at page 60 – 62.

 6   Respondent’s Outline of argument: objections at section 7(c).

 7   Ibid.

 8   Court Book at page 63.

 9   Respondent’s Outline of argument: objections at section 7(c).

 10   Ibid.

 11   Carpenter v Corona Manufacturing Pty Ltd PR925731 (AIRCFB, Williams SDP, Lacy SDP, Tolley C, 17 December 2002) at para. 9, [(2002) 122 IR 387]; cited in McMenemy v Thomas Duryea Consulting Pty Ltd T/A Thomas Duryea Consulting [2012] FWAFB 7184 (Richards SDP, Harrison DP, Cambridge C, 28 August 2012) at para. 11, [(2012) 223 IR 125].

 12   Ibid.

 13   McMenemy v Thomas Duryea Consulting Pty Ltd T/A Thomas Duryea Consulting [2012] FWAFB 7184 (Richards SDP, Harrison DP, Cambridge C, 28 August 2012) at para. 37, [(2012) 223 IR 125].

 14   PN125.

 15   PN52 – PN53.

 16   PN29.

 17   PN66 – PN67.

 18   PN109, PN111.

 19   PN116 – PN119.

 20   PN112.

 21   PN125.

 22   PN56.