[2016] FWC 901

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gregory Simonsen
v
Pioneer Credit Limited
(U2015/10340)

COMMISSIONER CRIBB

MELBOURNE, 26 FEBRUARY 2016

Application for relief from unfair dismissal - jurisdiction - high income threshold - whether applicant covered by a modern award - application dismissed.

[1] Mr Gregory Simonsen (the Applicant) has made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The application is in relation to the termination of his employment by Pioneer Credit Limited (the Respondent, the company, Pioneer Credit).

[2] The company has objected to the application on the basis that the Fair Work Commission (the Commission) does not have jurisdiction to hear the application on the grounds that a modern award does not cover the Applicant and that the sum of the Applicant’s annual rate of earnings was greater than the high income threshold.

[3] The company’s objections were heard on 15 October 2015 and 27 October 2015. Witness evidence was given on behalf of the company by Ms J McGhie, Senior Manager Human Resources and Mr L Crockett, Chief Financial Officer. Mr Simonsen gave evidence on his own behalf. The company filed written closing submissions on 9 November 2015 and closing submissions in reply on 24 November 2015. Mr Simonsen filed his closing submissions on 18 November 2015.

[4] During the hearing, Mr Simonsen did not continue to pursue his contention that his salary was below the high income threshold. Mr Simonsen confirmed that he agreed with the company statement 1 that, around 13 July 2015, his salary increased from $160,000 per annum plus superannuation to $164,000 per annum plus superannuation.2

[5] It was common ground between the parties that Mr Simonsen was not covered by an enterprise agreement during his employment with Pioneer Credit.

[6] Accordingly, the issue in contention is whether or not Mr Simonsen’s position was covered by a modern Award. The relevant modern award, in this matter, is the Banking, Finance and Insurance Award 2010 (the Banking Award). The question to be answered is whether Mr Simonsen’s position was sufficiently senior to exclude him from coverage by the Award.

1. Background

[7] Mr Simonsen commenced employment with Pioneer Credit on 8 September 2014 in the position of Senior Manager Technology. At the time Mr Simonsen commenced with the company, he reported directly to the Managing Director. 3 In January 2015, Mr Simonsen ceased reporting to the Managing Director and reported instead to the Chief Operating Officer which continued until the time of his dismissal.4

[8] The parties held different views about the reason for the change in Mr Simonsen’s reporting relationship and the implications of it in relation to Mr Simonsen’s level in the company. It was Mr Simonsen’s contention that he had gone down a level whilst the company believed that there was no change in Mr Simonsen’s level within the organisation. The parties also had differing views in relation to the job description for Mr Simonsen’s position which was, developed on 1 October 2014. 5 Mr Simonsen agreed that the job description was true and correct in relation to when he started with Pioneer Credit. However, he believed that it did not reflect his role following the change in his reporting relationship in January 2015.6 For the company’s part, it was satisfied that the job description reflected Mr Simonsen’s role and duties throughout his time with Pioneer Credit.

2. The evidence

(a) Pioneer Credit

(i) Ms McGhie

[9] It was Ms McGhie’s oral evidence that, in the covering letter that was sent with Mr Simonsen’s contract, itprovided that Mr Simonsen could earn up to 20% of his base salary as a short-term incentive on the basis of achieving key delivery goals. Ms McGhie stated that the short term incentive was made available to the Managing Director (MD), the Chief Financial Officer (CFO), the Chief Operating Officer (COO), the operations and finance teams and Mr Simonsen. 7

[10] In relation to the organisation chart that Mr Simonsen had prepared 8, Ms McGhie said that the reporting lines were correct.9 It was confirmed by Ms McGhie that it was her understanding that the COO and the CFO reported to the MD who in turn reported to the Board.10 Ms McGhie explained that there was no official organisation chart as it is a new, young and growing business which is changing all of the time. It was stated that the CFO and the COO do report to the MD but that the three of them make the decisions together. It was indicated that, if one of the three people was not there, the others would make the decision. Therefore, it depended on what perspective one was looking at in terms of the structure of the organisation.11

[11] Further in regard to Mr Simonsen’s organisation chart, Ms McGhie stated that the level Mr Simonsen had labelled “Middle Management/Specialist” should be referred to as Senior Management and that “Top Management” should be relabelled as well. 12 Ms McGhie also stated that the position of Business Analyst should be moved to the next level down to sit with the Technology Coordinator and the Operations and Compliance teams.13 There was also said to be another level between “Senior Management” and “Junior Management” with the three Operations Managers who have Team Leaders and teams beneath them.14 Ms McGhie confirmed that Mr Simonsen’s former role was that of Senior Manager Technology with the Technology Coordinator reporting to him.15

[12] Ms McGhie confirmed that the company organisation chart 16 that she had forwarded to Mr Simonsen in February 2015, in response to his request, represented how the business was set up together with the lines of reporting as at February 2015.17 The document shows Mr Simonsen’s role reporting to the MD (and not the COO) with the Business Analyst reporting directly to the COO and not at the level below.18 Ms McGhie clarified the apparent contradiction by explaining that developing the company’s organisation chart was not part of her role but was part of the MD and Personal Assistant’s (PA) roles. The organisation chart she had provided to Mr Simonsen was drawn up for her own purposes and so was not an official company document.19

[13] In Ms McGhie’s witness statement, it was stated that:

Mr Simonsen was part of the senior management team which was comprised of the most senior managers who had responsibility for the various departments within Pioneer Credit. 20

From 18 February 2015, a new role of Technology Coordinator was created, which reported to Mr Simonsen. 21

(ii) Mr Crockett

[14] Mr Crockett gave oral evidence in addition to providing a witness statement. 22

[15] It was Mr Crockett’s evidence that he was one of the three Key Management Personnel (KMP) within the company with other KMP being the MD, COO and directors (whether executive or otherwise, including members of the Board). 23 Mr Crockett explained that there were delegated duties between each of the three KMP with respect to specific skill sets and the functions of the roles. It was indicated that decision-making operated on the basis that KMP would try and reach consensus. However, the MD had the casting vote in the event there was not a consensus.24 It was stated that there was not much of a difference as to whether a person reported to the COO, CFO or the MD.25

[16] In relation to a company organisation chart, Mr Crockett stated that Pioneer Credit has an official one which the organisation attempts to keep up-to-date. It was recounted that, as the company is not a hierarchical organisation which relies on an organisation chart, it was not strictly up-to-date at any time. 26

[17] The company was described as having a fairly flat structure with the KMP level described as senior management. It was recounted that the role of KMP was to plan, direct and control and, as such, KMP did not have all of the specialist knowledge required when making high-level decisions about the business. The senior managers were said to be those with specialist technical sets or skills or depth of experience. This was said to result in KMP being able to access reliable information and strategic input so that the best decisions possible could be made. These senior management roles were said to be the Senior Manager Operations, Senior Manager Human Resources, Senior Manager Technology Senior Manager Compliance and the Business Services Manager. It was stated that all of these managers have specialist knowledge. 27

[18] Mr Crockett indicated that Mr Simonsen was KMP’s most senior and “go to” person in relation to information technology. It was agreed that Mr Simonsen, in accordance with his job description, set for the business or the KMP, the overall direction for IT through strategic planning and evaluation. Mr Crockett explained that the KMP looked for as much colour as possible around why a particular recommendation from a technical perspective was being recommended. This was in order for KMP to make an informed decision. 28 Mr Crockett confirmed that a big part of Mr Simonsen’s role was to provide technical specialisation/technical knowledge to top management (KMP).29

[19] It was recalled by Mr Crockett that about 18 months - 2 years ago, there was a Chief Information Officer (CIO) who was one of the KMP. It was stated that the CIO had previously held the combined position of CIO and CFO and had been a director of the company. Mr Crockett explained that, when the CIO left, Mr Simonsen was employed, primarily for his technical expertise. 30

[20] In relation to the organisation chart created by Mr Simonsen, Mr Crockett reiterated that the company operates with the MD, COO and CFO as KMP with all basically on the same level. It was agreed that the layer below that would be the “Top Management” layer (as in Mr Simonsen’s organisation chart). The way Mr Simonsen portrayed a tree of people underneath the COO from a functional perspective was said to be broadly correct. The exception was that the Senior Manager Compliance was also part of that grouping. 31 The group under the KMP was described as the senior executives which included Mr Simonsen’s formal role.32

[21] It was recalled by Mr Crockett that Mr Simonsen’s day-to-day reporting commenced with it being to the MD. Mr Crockett explained that, as the business continued to grow, Mr Simonsen’s day-to-day reporting moved to the COO. 33 Mr Crockett could not recall exactly when the change in reporting occurred but thought that early 2015 sounded about right.34 It was confirmed that, at the time of Mr Simonsen’s dismissal, Mr Simonsen’s direct report was the COO.35 Mr Crockett disagreed that the change in Mr Simonsen’s reporting line was as a result of a change in the functionality of his role.36 Mr Crockett gave evidence that, as far as he was aware, none of Mr Simonsen’s job responsibilities changed when his reporting line changed.37

[22] It was confirmed by Mr Crockett that Mr Simonsen’s delegated financial authority was $2000. This was said to mean that, Mr Simonsen could spend $2000 without having to check with anyone. To spend more than $2000 (i.e. around $10,000) required written approval from someone in the KMP. For a bill between $2000 and $10,000, it was required that a KMP have some form of oversight, whether verbal or, at $10,000, sign off by a KMP. 38 Mr Crockett did not think that a person has significant control or ability to influence the business with a delegated financial limit of $2000.39

[23] In his witness statement, based on his direct knowledge of Mr Simonsen’s role, Mr Crockett set out the duties and activities that Mr Simonsen undertook as part of his role. These included:

Delivering, under his own signoff, a monthly report to the Board of Directors regarding Information Technology and Telephony. 40

Conducted a review of Wincollect, the company’s most significant and critical customer relations management software, and provided a clear strategic conclusion and recommendation to KMP. 41

Prepared and delivered to Board level an approval paper in respect of the company’s Telephony project which was the biggest capital expenditure project ever undertaken by the company. 42

Contracted directly with the company’s most significant services vendors. 43

Met with the company’s external auditor and had responsibility for the general IT application control system in relation to the external audit. 44

Was responsible for delivery of material to be included in the Risk Register and in doing so, identified key risks and responsibilities for management of a number of key risk areas. 45

[24] Finally, it was recounted by Mr Crockett that Mr Simonsen had requested, and provided a business case in support of the request, for a Technology Coordinator, (reporting to Mr Simonsen). A Technology Coordinator was appointed in early 2015. 46

(b) Mr Simonsen

[25] It was Mr Simonsen’s oral and written evidence that his position at Pioneer Credit was classified as a Level 6 under the Banking Award. This was because he was no longer reporting to the Managing Director but to the next level down (COO). 47

[26] With respect to the two organisation charts, Mr Simonsen recounted that, when he started with the company, he had asked for an organisation chart and was given one. Later, when he was provided with another organisation chart, he was not told that it was official or unofficial. Mr Simonsen acknowledged that when he was provided with the second organisation chart (by Ms McGhie in February 2015), the covering email stated that it was a draft. 48

[27] Mr Simonsen agreed that, during his time at Pioneer Credit, the company was growing with resultant changes. It was explained that one of these changes was that the company moved offices which meant additional computers and phones. In relation to internal decision making, it was Mr Simonsen’s observation that the Managing Director appeared to make most or just about all of the decisions. He agreed that the Managing Director consulted regularly with the CFO and the COO. Mr Simonsen also agreed that the Managing Director sat on the Board together with 4 or 5 other directors. He stated that there was a level of financial authority which only the Board appeared to be able to authorise. 49

[28] It was also agreed by Mr Simonsen that, below the Board and then the KMP level, there were a number of senior managers (e.g. Operations, Compliance). Mr Simonsen agreed that that was the level that he was on. 50 In relation to his role, Mr Simonsen indicated that he dealt with a number of external companies, one of which (Datacom) provided a managed IT service for the company’s servers, storage and network components. Mr Simonsen explained that the other IT components (telephone systems, the computers on desks, audio/visual systems and some of the software involved with the CRM system and the databases) were all internally supported by himself and the Technology Coordinator.51

[29] In relation to Datacom, it was stated by Mr Simonsen that he was the main point of contact within the company for Datacom. Mr Simonsen agreed that, if there was a problem with the computers, it was his role to talk to Datacom and understand what actually had happened and work on a solution to the problem. 52 He disagreed that, if the company’s computers had gone down, it would be catastrophic. Rather, as the company could still operate, Mr Simonsen described it as hindering the company’s operations. He did not see the financial results when the company purchased a portfolio but had heard that the value was in the $millions.53 Mr Simonsen was unaware of the value of the company’s technology -related assets as it was the finance team’s responsibility.54

[30] With respect to the job advertisement for his position, Mr Simonsen explained that, when he commenced employment, he was not aware of the outsourcing arrangement with Datacom. It was stated that Datacom had a fair amount of control over the management of the actual computer systems. Mr Simonsen said that, what was left were the phones, computers and audiovisual systems in the offices, which he and the Technology Coordinator managed. It was agreed that, when he had commenced, there was no one above him in IT as his manager. Mr Simonsen recounted that there had been a CIO who had been one of the KMP. 55

[31] In relation to the job description, it was Mr Simonsen’s evidence that he undertook some of the duties set out under planning, risk management, leadership, integrated management system, operations and stakeholder relationships. Mr Simonsen stated that he had not performed all of the duties set out in the job description. It was recalled that, when his reporting line changed in January 2015, the types of reporting required of him by his manager had changed. It was stated that the Managing Director had wanted him to be involved on a daily basis and to provide updates on what was going on. The COO was happy to meet with him monthly to review the department’s major activities. The frequency of reporting changed and some of the content changed but what he was doing day-to-day did not change considerably. As his interfacing with the Managing Director became less and less, he received less higher-level questions. The COO would get his input and then go and speak to the Managing Director about it. 56 Mr Simonsen confirmed that his salary did not change when his reporting line changed.57

[32] Mr Simonsen stated that about 50% of his daily tasks were administrative - database, telephone and computer administration and support. These were said to not be typically associated with a person in a senior position. 58 It was argued that, when the Technology Coordinator was employed, his role was to take on some of these administrative tasks as the company was growing at a rate beyond what one person could administer (20 - 30 people per month). He recalled that it had been suggested to him that a Technology Coordinator be employed given the company’s forecasted growth. It was recounted that he and Ms McGhie agreed on what the role would look like (a job description) and Human Resources managed the recruiting process. Mr Simonsen said that he had received the advertisement, had been involved in the interviews and had recommended that a particular candidate be employed.59

[33] With respect to the integrated management system, it was agreed by Mr Simonsen that the technological part of it was fairly important. Mr Simonsen recalled that he had reviewed the solution from Datacom from a technology specialist point, for the COO. The COO had then advocated to the Managing Director that the system be an automated system rather than a manual one. 60

[34] In terms of the limit on his financial authority, Mr Simonsen said that he did not know that his limit was $2000. He explained that he did not have the complete financial authority to authorise a big project. Mr Simonsen indicated that, as he was never informed about his financial authority, he relied on the request being authorised by the appropriate person. When a KMP required a small item e.g. an iPhone, he relied on the authority of the person making the request. 61

[35] With regard to the Project on a Page for Project Aristotle, 62 Mr Simonsen explained that this mechanism (documentation) was put in place by the CFO as a way of ensuring financial control. It was said to be required, regardless of the size of the project. Mr Simonsen confirmed that the document showed an upfront cost of $20,000 and indicated that he was aware that the cost of Project Aristotle over 5 years was about $2.5 million.63 It was said that, at that time, the company was discussing who was going to be the project manager. Mr Simonsen stated that he would certainly have played a coordination role between either an internal project manager or an external project manager. It was agreed that there were meetings with a number of different telephone providers leading up to the Project on a Page. The decision to go with a particular provider was said to have been made by the COO, Managing Director, CFO, Senior Manager Operations and himself. The Technology Coordinator was also said to have had a small say.64

[36] Mr Simonsen explained that the Project on a Page was a suggestion about how the project was going to run. He agreed that those people were involved (the project team) - as per the Project on a Page document. It was stated that one of the project team was the Senior Manager Operations but that the rest of the team were either people who reported to the Senior Manager Operations or himself. Mr Simonsen also said that whether he was going to be the project manager was still up in the air. 65

[37] It was stated by Mr Simonsen that he was involved with some of the evaluation and he assisted in the decision-making in fairly large projects. This was said to be because there was no one else in the company who had that technical specialisation. Once the project was running, he would absolutely be working with the people in the project and the service provider to ensure the project was delivered in a smooth and reliable fashion. 66

[38] Mr Simonsen confirmed that, shortly after he commenced with the company, he had approached the Managing Director and requested that he be on a higher wage. It was explained that this was because he was not clear whether there was a CIO and if he was to replace that person and also to understand where he sat in the company from a salary point of view. The Managing Director was said to have then decided that the CIO was not there and it became non-existent after the person left. Mr Simonsen said that his role was then quite different and it was moved to reporting to the COO. 67 Further, it was recalled by Mr Simonsen that he believed that the CIO was still with the company when he commenced. He explained that he had been told that he was the person responsible for IT for the company but then, there was another person who was also ultimately responsible for IT. Therefore, Mr Simonsen said, it was a matter of trying to understand where he fitted.68

[39] Mr Simonsen confirmed that, during his employment with the company, the pieces of work he had performed were the telephony business case, the disaster recovery plan, the Datacom contract renegotiation and the Wincollect encryption design. 69 In relation to the Datacom contract renewal, Mr Simonsen explained that his involvement was to understand what kind of technology the company would need and what kind of technological change would be made in the term of the new agreement. Mr Simonsen indicated that, for a company that relied on information technology, those sorts of decisions were fairly important.70

[40] With respect to whether his involvement with the Datacom contract renegotiation was that of a middle manager or a senior manager, it was Mr Simonsen’s view that it was about the input i.e. what is the input that the person is providing in the contact renegotiation. He stated that it was specialist input because there was no one else in the organisation to provide that specialist input. Mr Simonsen agreed that the COO and the Senior Manager Operations were wholly reliant on him in relation to the technology. 71 It was explained that he was asked to be involved in some basic financial estimates but that, when it started to get highly complex with big numbers, then the finance team would do the analysis for him. His role in the contract renegotiation also included understanding from others what their plans were in terms of new products and services etc. It was said to have been his job then to work out what kind of technology might be needed for those products and services.72

[41] Mr Simonsen recalled that there were 3 or 4 people involved in the contract renegotiations - the Managing Director, COO, CFO, himself and a legal person. 73 It was stated that the Managing Director had the final decision and would review and then sign off the contract with input from himself in relation to the technology. The COO (the person he reported to) would review the contract and have input into whether or not they were satisfied as a business.74

[42] With respect to the telephone business case, Mr Simonsen explained that his role was to provide specialist technical input. It was recalled that he and Mr Singh had had some dialogue in relation to the meaning of some of the terms of the contracts provided by the various bidders for the job. 75

3. Submissions

(a) Pioneer Credit

[43] Pioneer Credit submitted that:

The legislation (section 143(7)(a)) specifically excludes from coverage of modern awards, classes of employees who, because of the nature of seniority of their role, have traditionally not been covered by awards. 76

Mr Simonsen was not covered by the Banking, Finance and Insurance Award 2010 77 (Banking Award).78

The minimum annual salary for a Level 6 employee under the BankingAward is $51,418. It was uncontested that Mr Simonsen’s base salary was $164,000. 79

The classification descriptor for a Level 6 position states that it is a middle managerial role in relation to the administration and conduct of part of the business. 80

[44] The Commission was referred to the decision of Commissioner Gregory in Currie v SMA Super Pty Ltd 81 (Currie) which addressed the Level 6 classification in the Banking Award. It was stated that the Commission found that it did not have jurisdiction to hear the application. The Commissioner’s findings, in relation to whether or not the Applicant was a Level 6 employee, were summarised by the Company as follows:

An employee at Level 6 is most unlikely to report directly to the CEO or Managing Director.

An employee at Level 6 is almost certainly not a member of the organisation’s Executive Management Board or Investment Committee or similar.

An employee at Level 6 will not have responsibility for important compliance issues.

A Level 6 employee will not be responsible for strategic and policy responsibilities at a corporate level.

In Currie, the Applicant was required to compile monthly reports in relation to his department.

In Currie, the Applicant’s base salary was $131,680 with total remuneration of $143,532. 82

[45] Reference was also made to the decision of Commissioner Lee in Faulder v Lanteri Partners Financial Management Pty Ltd t/as Lanteri Partners Group 83 (Lanteri). It was stated that the test adopted in both cases was the “principal purpose test” i.e. what was the most important intention of the employer in requiring the functions of the position to be carried out by the employee.84

[46] The company submitted that the following factors were found in Lanteri to be relevant:

The Applicant reported directly to the Managing Director

The Applicant met with clients at any time or place

The Applicant was operating at a highly professional level at a very high level in the organisation. 85

[47] It was contended by the company that it appeared to be undisputed that the principal purpose test set out in Currie is the test to be applied in this matter. With respect to the principal purpose test, it was stated that it is the intention of the employer in respect of the employees’ role that is relevant. A key consideration was said to be (as found in Lanteri) the employee’s job description. 86

[48] In relation to the evidence, the company argued that it was uncontested that:

Mr Simonsen’s job title was Senior Manager Technology.

Mr Simonsen’s base salary was $164,000 per annum plus superannuation (over 3 times the level provided for by the Banking Award).

Mr Simonsen’s contract was entitled Executive Employment Agreement and contained a 3 month notice period with a 12 month restraint.

Mr Simonsen’s role formed part of the Senior Management team of the company. 87

[49] The company submitted that these factors established a strong prima facie presumption of the necessary seniority. Further, it was argued that it cannot be reasonably contested that Mr Simonsen’s job description did apply to his employment and that it provided strong evidence of the intention of the Respondent. 88 The company stated that Mr Simonsen’s job description provided for 6 key result areas - planning, risk management, leadership, integrated management system, operations/customer satisfaction and stakeholder relationships.89 The major activities under each of the key results areas were said to include:

Set overall direction for IT through strategic planning and evaluation.

Maintain security of all data and provide for the complete backup of all computer systems in the case of system failure or disaster.

Work with IMS System Representatives to ensure the ISO IT Security Management Standard is implemented. 90

[50] Further, the company highlighted the required work experience and skills of the role. These included a minimum of 10 years’ experience as a senior executive; effective leadership maturity; experience in managing complex technical projects and the ability to negotiate outcomes in an environment of complex stakeholder relationships including vendors. 91 On these grounds, the company argued that Mr Simonsen’s employment was not and could not be covered by the Banking Award.92

[51] In addition, the company contended that Ms McGhie and Mr Crockett gave reliable, credible and consistent evidence which was either not challenged by Mr Simonsen or Mr Simonsen’s evidence supported it. The evidence was said to strongly support the company’s contentions in relation to Mr Simonsen’s seniority and position and that he could not and was not covered by the Banking Award. 93

[52] With respect to Mr Simonsen’s application and witness evidence, the company submitted that there appeared to be an inherent inconsistency between the position of Mr Simonsen in his application (the focus being on the seniority of his position) and Mr Simonsen’s evidence in which he was said to have retrospectively, diminished the seniority of his role. 94 In relation to Mr Simonsen’s witness evidence, the company highlighted the evidence on the basis that it was either Mr Simonsen’s evidence or that Mr Simonsen gave evidence supporting an inference. The highlighted evidence included:

That Mr Simonsen was at the same level of management as the Senior Manager Operations (with 100 - 200 direct reports) and the Senior Manager Compliance.

As part of his role, Mr Simonsen dealt with external companies on behalf of the company. These included Datacom which provided external IT services to the company and for whom, Mr Simonsen was the main point of contact. Mr Simonsen and the technology coordinator collectively manage the entire IT requirements of the company.

There was no one above Mr Simonsen who was his manager in IT.

Mr Simonsen was involved in IMS systems and risk management and identifying technology risks for the company.

There was no significant change in Mr Simonsen’s role when his reporting line changed.

Mr Simonsen played a key role in all aspects of the hiring of a Technology Coordinator.

Mr Simonsen played a key role as part of a group (including the COO) in the IMS project.

Mr Simonsen was heavily involved in the telephony project (estimated $2.5 million worth of investment). Mr Simonsen worked with the CFO, the Managing Director and the COO on the Datacom renegotiation. 95

(b) Mr Simonsen

[53] It was submitted by Mr Simonsen that his position was that of a middle manager and that it met the criteria to be classified as Level 6 of the Banking Award. Mr Simonsen disputed the assertion that he was excluded from the Banking Award due to the seniority of this of his position. This was on the basis that his position reported to the company’s most senior management (the COO) (i.e. had a layer of management above him) and had no managers reporting to him. 96 Mr Simonsen also argued that the Level 6 classification includes IT specialist as an indicative job. It was stated that the company’s Senior Manager Human Resources was on the same managerial layer as his position and that it is also an indicative job of the Level 6 classification under the Banking Award.97

[54] Mr Simonsen contended that, while the list is just indicative, the important aspect of it was that it stated that a person classified within Level 6 excepted responsibility on matters relating to the administration and conduct of part of the business. It was stated that 50% of his daily tasks included database, telephone and computer administration and support. Although these duties were acknowledged as critical to the company, they were said to not be typically associated with a person occupying a senior position. Further, although he was primarily employed for his specialist or technical skills, Mr Simonsen said that he performed a significant about of administration on a daily basis. 98

[55] Further, Mr Simonsen contended that his role was not empowered with the ability to directly hire or terminate a person’s employment which was said to be often associated with a senior position. 99 In addition, it was stated that the company previously had a CIO which was the top technology management position. It was stated that his role was not to replace this role but that a new role was created which was below the top management layer with a lesser set of responsibilities.100

[56] With respect to the review of the CRM, Mr Simonsen stated that the examples provided by the company (business cases or reviews) are usually undertaken by a business analyst who is tasked with analysing the needs for particular part of the business. It was Mr Simonsen’s view that he would not associate this task with a person occupying a senior position. 101

[57] Mr Simonsen stated that the principal purpose of the role that he held was to ensure that the company had a stable and available computer system, inclusive of any enhancements required to sustain both the stability and availability of the computer systems. The Primary Objective of the position, as set out in the job description, was referred to in this regard. Mr Simonsen also highlighted the job advertisement which was stated to refer to the position as being a technically hands-on managerial post. It was argued that the combination of these 2 documents indicate that the role was required to be technically hands-on in order to conduct the primary objective of the role. Significant hands-on duties were said to not normally be associated with a person occupying a position of seniority. 102

[58] Finally, Mr Simonsen also submitted that the comparison to the Currie and Lanteri cases were not appropriate as there were material differences between those cases and this matter in relation to financial control and organisational reporting. 103

4. Considerations and Conclusions

[59] Pioneer Credit has raised a jurisdictional objection to Mr Simonsen’s application. The relevant provision of the Act, in relation to the company’s objection, is section 382(b).

[60] Section 382 of the Act reads 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.

Note: High income threshold indexed to $136,700 from 1 July 2015”

[61] It was common ground that there was no enterprise agreement which applied to Mr Simonsen during his employment with the company (section 382(b)(ii)). It was also common ground that the sum of Mr Simonsen’s annual rate of earnings exceeded the high income threshold (section 382(b)(iii)). The matter in dispute between the parties, to be determined by the Commission, is whether a modern award covers Mr Simonsen (section 382(b)(i)).

(a) Excluded from coverage by any award

[62] The grounds of the company’s objection were that Mr Simonsen is excluded from any potential award coverage and, if not, Mr Simonsen’s employment was not covered by a relevant award. 104 The first limb of the company’s argument was set out in the Respondent’s Outline of Opening Submissions.105 In these submissions, the company referred to section 143(7) of the Act which provides that a modern award must not cover classes of employees who, because of the seniority of their role, have traditionally not been covered by awards.106 This line of argument was recast to some extent in the Respondent’s Outline of Closing Submissions.107 These further submissions stated that the key issues to be determined were whether Mr Simonsen’s position was sufficiently senior to exclude him from any potential award coverage. If not, did Mr Simonsen’s employment fall within Level 6 of the Banking Award?108

[63] The witness evidence and the written submissions, except as set out above, dealt primarily with the second limb of the company’s argument. This line of argument concerned whether Mr Simonsen’s position fell within Level 6 of the Banking Award i.e. whether Mr Simonsen’s position was a senior management position (not covered by the award) or a middle management position (award covered). The evidence shows that the parties did not agree with respect to the level of responsibility of Mr Simonsen’s position, exactly where it sat within the organisation or the particular duties of the position.

[64] As the company did not develop further its contention that Mr Simonsen was excluded from any award coverage, on the basis of section 143(7) of the Act, it is not proposed to deal with this issue except to note the following. Mr Simonsen’s position was a newly created one at the time he was employed into that position. 109 The company did not provide any material in support of the argument that the position had not been traditionally covered by an award.

(b) Banking Award coverage

[65] All of the parties proceeded on the basis that the issue to be determined by the Commission was whether Mr Simonsen’s position was either too senior to be covered by the Banking Award (the company) or it was appropriately classified under Level 6 of the Banking Award (Mr Simonsen). It was Mr Crockett’s evidence that Pioneer Credit is a specialist Australian financial services provider 110 and as such, is an employer in the banking, finance and insurance industry as defined by clause 4 of the Banking Award.

[66] Clause 4.1 of the Banking Award provides:

“This industry award covers employers throughout Australia who are engaged in the banking, finance and insurance industry in respect of work by their employees in a classification in this award and those employees to the exclusion of any other modern award.”

[67] Clause 4.2 of the Banking Award sets out a more expansive description of the industry. This description includes “finance”. The company is therefore covered by the Banking Award in respect of work carried out by their employees in the classifications contained in Schedule B of the Banking Award. The highest classification level in Schedule B is Level 6.

[68] The question then is whether or not Mr Simonsen’s role and responsibilities were more senior than those contemplated by Level 6 of the Banking Award or whether Mr Simonsen’s position meets the position descriptors of Level 6.

(i) Level 6 classification descriptors

[69] It is useful, at this point, to set out the Banking Award classification descriptors for Level 6, as relevant. They are as follows:

“A Level 6 position typically performs a middle managerial role primarily to control the conduct of a part of the employer’s business and in which decisions are regularly made and responsibility accepted on matters relating to the administration and conduct of the part of the business. Those responsible for managing more than 10 people must be classified at this level…

Indicative job list—branch manager, human resources or fraudulent relations manager, financial planners, information technology specialists, relationship manager, senior analyst, subject matter manager, divisional manager.”

(ii) Principal Purpose test

[70] It was common ground between the parties that the principal purpose test should be applied to determine this matter. The Commission was referred to the decisions in Lanteri and Currie and also to Commissioner Cloghan’s decision in Hehir v Schweitzer Engineering Laboratories Pty Ltd 111 (Hehir). Hehir set out what the application of the principle purpose test required, in the following terms:

“To determine whether an employee is employed in a classification in the Modern Award, it is necessary to apply the “principal purpose” test. The “principal purpose” test can be addressed by determining what was the most important intention of the employer in requiring the functions of the position to be carried out by the employee. In answering such a question, it is appropriate to examine the job description, the nature of the work performed and any relevant circumstances surrounding the performance of the duties by the employee. By their nature, job descriptions cannot detail all the functions of a position. Further, time spent on tasks, functions and responsibilities evolve as people, business, systems and technologies come together. While such factors may change the duties and responsibilities, the principal purpose of the position generally retains steadiness.” 112

[71] Commissioner Gregory further described the principle purpose test in Currie, on the basis of the authorities, as:

“It is clear from these authorities that the principal purpose test should be applied to determine this matter. It is also clear from those authorities that this requires an examination of the nature of the work and the circumstances in which the Applicant was employed. A comparison is then required to be made with the classification description at Level 6 in the Award and the indicative job list associated with that classification level.” 113

[72] I will apply the principle purpose test in light of the authorities set out above.

[73] It was common ground that Mr Simonsen’s job title was that of Senior Manager Technology and that the position did not have any direct reports until the appointment of a Technology Coordinator in February 2015. It was also not disputed that Mr Simonsen commenced employment reporting directly to the Managing Director. However, in January 2015, Mr Simonsen’s reporting line changed from the Managing Director to the COO. It is a matter of fact that Mr Simonsen was offered an “Executive Employment Agreement” 114 which stipulated a 3 month notice period and a 12 month restraint on competing and soliciting clients or employees of the company.115 Mr Simonsen’s salary, at the time of his dismissal, was also agreed - $164,000 per annum plus superannuation.

(iii) Senior management or middle management?

[74] During the course of the proceedings, a number of issues were raised which were in dispute between the parties. On the way to addressing the principle purpose test, each of these will be dealt with. The first issue was whether Mr Simonsen’s position was a senior management position or a middle management position.

[75] The company argued that Mr Simonsen’s position was a senior management position and that it was one of a number of senior managers who provided specialist advice and support to KMP. Other specialist managers included the Senior Manager Operations, Manager Business Services, Senior Manager Human Resources and the Senior Manager compliance. Mr Simonsen contended that, although he performed significant IT specialist duties, he was not senior management because he did not have any managers reporting to him and because there was a layer of management above him. Further, Mr Simonsen stated that 50% of his role was daily IT administration and support which would not typically be associated with a Senior IT Manager’s role.

[76] In addition, the company contended that the KMP (the Managing Director, COO and CFO) operated as one team and therefore collectively represented the top level of management. As Mr Simonsen reported to the COO, it was argued that he had not been “demoted” when he ceased reporting directly to the Managing Director. This was because the COO, CFO and the Managing Director made decisions either collectively or singly, on behalf of the others, if they were not available.

[77] On the other hand, Mr Simonsen submitted that, when his reporting line had changed, he had in fact been demoted. Mr Simonsen agreed that, on a day-to-day basis, his duties had not altered with the change in reporting relationship. However, Mr Simonsen stated that he no longer had direct contact with the Managing Director. Rather than putting proposals/providing advice etc directly to the Managing Director, Mr Simonsen said that he would tell the COO (his manager) what he had previously put directly to the Managing Director. It was stated that the COO was then the one who took his input/advice etc to the Managing Director, rather than himself.

[78] Further, both the company and Mr Simonsen provided organisation charts to the Commission. 116 The company was at pains to stress that its organisation chart was simply a draft. This was due to the organisation not needing to have or maintain an organisation chart. By the end of the witness evidence, it was apparent that the parties were not diametrically apart in relation to the structure of the organisation. The draft organisation chart provided by the company, together with Mr Simonsen’s organisation chart both show the Managing Director at the top of the organisation with the CFO and COO reporting to that position. The company’s organisation chart also showed Mr Simonsen reporting to the Managing Director, even though the chart was dated February 2015.

[79] Mr Crockett gave detailed evidence about KMP and how “Top Management” operated and stated that the Managing Director, the CFO and the COO worked together as one team with decision-making shared amongst them. From Mr Crockett’s perspective, this resulted in there being a single top level of management, rather than two levels (the Managing Director with the CFO and COO reporting to him), as alleged by Mr Simonsen. However, both Mr Crockett and Ms McGhie conceded that the final decision making within the KMP lay with the Managing Director. Both parties agreed that there was a layer of management below the “Top” or most senior level, however configured. This level was described as Senior Management by the company and as Middle Management/Specialists by Mr Simonsen. Both parties agreed as to which positions sat within this level. These included the Senior Manager Operations, Senior Manager Compliance, Business Services Manager and Mr Simonsen’s position. Below this level were those positions who reported to Senior Management/Middle Management/Specialists. This included the Technology Co-ordinator who reported to Mr Simonsen.

[80] Having carefully considered all of the material before me, I find that the change in Mr Simonsen’s reporting relationship resulted in his position moving down a level of management. It was agreed that the change resulted in Mr Simonsen no longer reporting to the Managing Director but instead to the COO. The KMP may well have generally operated collegiately as Mr Crockett described it. However, it was indicated by both Mr Crockett and Ms McGhie that, when the KMP could not reach agreement, it was the Managing Director who made the decision. Therefore in an organisational sense, for classification purposes, it cannot be said that the COO, CFO and the Managing Director were all equal with the same level of authority and accountability. Rather, it appears from the evidence that, the Managing Director had the ultimate authority and decision making capability in relation to the KMP.

(iv)Role and functions of the position

[81] The second issue concerns the duties that Mr Simonsen had performed and the purpose of the role.

[82] The job description for the position of Senior Manager Technology stated that the Primary Role Objective was:

“Responsible for all aspects of the company’s information technology and systems by managing controls and risks in the planning, implementation and evaluation of the company’s IT systems and ensuring the effective, efficient and secure operation of all automated data processing system in order to improve cost effectiveness, service quality and business development.” 117

[83] The job description was developed around October 2014 and states that the position reported to the Managing Director. There was no agreement between the parties that the job description was accurate and up-to-date. Mr Simonsen’s view was that some of the job description was accurate whilst other parts of it were not.

[84] The job advertisement for the position stated that the position was responsible for all aspects of the company’s IT (with specific focus on infrastructure). The position would also oversee the planning and implementation of ICT initiatives including voice and data communications, administration systems, financial technology, user support and IT security. 118 The advertisement also required a minimum of 5 years’ experience whilst the job description specified 10 years’ experience at a senior executive level.

[85] Mr Crockett gave extensive evidence about Mr Simonsen’s role and duties. It is noted in this regard that Mr Simonsen’s direct manager, the COO, was not called to give evidence on behalf of the company. Mr Crockett’s evidence included that:

Mr Simonsen conducted a review of the customer relationship management (CRM) software critical to the day-to-day operations of the business (Wincollect) and provided recommendations to the KMP in relation to exploring other products in the market rather than a redevelopment of Wincollect. 119

In relation to the telephony project, Mr Simonsen was responsible for the preparation and delivery to the Board of the Board approval paper. This had required conducting an appraisal process of the four potential vendors and included providing the business case for the preferred vendor. Mr Simonsen had forwarded to the KMP the agreements which had been examined and reviewed by general counsel, the CFO and Mr Simonsen. 120

Mr Simonsen had provided material for inclusion in the Risk Register for annual review and approval by the Board at least annually. Mr Simonsen was responsible for the risks he had identified as applicable to IT and telephony. 121

Mr Simonsen provided a monthly summary IT report to the Board in relation to IT service incidents and an IT project status summary. 122

Mr Simonsen had responsibility for dealing directly with Datacom to ensure that Datacom delivered its critical IT business services to the business in accordance with its contractual arrangements. 123

Mr Simonsen met with the PWC audit team independently in relation to the testing and assessment of key IT and telephony controls. 124

Mr Simonsen would make strategic suggestions/have input into high-level decisions not directly related to IT e.g. Corporate performance management tool. 125

Mr Simonsen collaborated with the COO and the Managing Director on various projects e.g. the setting up of level 6 technology-wise. Mr Simonsen made recommendations relating to video conferencing, the audio visual setup, microphones etc which were accepted. 126

[86] On the other hand, Mr Simonsen explained that an external company (Datacom) managed all of the company’s IT services except for the telephone systems, computers, audio visual system and some of the software involved with the CRM system and the database. It was Mr Simonsen’s view that Datacom had a fair amount of control over the management of the actual IT system. Mr Simonsen agreed that he was the main point of contact in the company for Datacom. He explained that, if there was our problem, his role was to talk to Datacom and understand what had happened and to work on a solution to the problem.

[87] With respect to the Datacom contract renewal, Mr Simonsen explained that his involvement was to understand what kind of technology the company would need in terms of new products and services and then to work out what kind of technology might be needed for those products and services. He acknowledged that these sorts of decisions were fairly important. He stated that he had provided specialist input into the renegotiations as there was no one else in the organisation who could do that. He agreed that the COO and the Senior Manager Operations were wholly reliant on him in relation to the technology. It was recalled that those involved in the contract renegotiations were the Managing Director, COO, CFO, himself and legal counsel.

[88] With respect to the integrated management system, Mr Simonsen acknowledged that this it was a fairly important part of the company’s IT system. He recalled that he had reviewed the solution provided by Datacom for the COO and had advocated that the system be an automated rather than a manual system. The COO had then taken this recommendation to the Managing Director.

[89] In regards to the Project on a Page for Project Aristotle, Mr Simonsen said that it had not been decided as to who was going to be the project manager. It was stated that the decision to go with a particular provider had been made by the COO, Managing Director, CFO, Senior Manager Operations and himself. However, Mr Simonsen pointed out that the members of the project team, apart from himself and the Senior Manager Operations, were people who either reported to himself or to the Senior Manager Operations. It was indicated by Mr Simonsen that project related papers such as the telephony project required significant IT specialist input which was not available anywhere else within the organisation. The telephony project was said to have included project resources provided by Telstra which were aimed at managing and delivering the project. This was said to be because the company did not have appropriate or available project management personnel in-house. 127

[90] It was also Mr Simonsen’s evidence that he was involved with some of the evaluation of, and assisted in the decision-making, in fairly large projects. It was his view that this was because there was no one else in the company who had that technical specialisation. One of these projects was the Risk Register which Mr Simonsen said was the result of assigning the risk to himself as there was no other appropriate person within the company who had the specialist skill to understand the identified technology risks. 128 It was Mr Simonsen’s view that his involvement in the audit by PWC was for the same reasons as the Risk Register - IT specialist input was required to identify technology related issues for audit and the skill was not available elsewhere in the organisation.129

[91] With respect to the telephony business case, it was explained by Mr Simonsen that his role was to provide significant specialist technical input which was not available anywhere else within the organisation. 130 He did acknowledge that he and Mr Singh had had some dialogue in relation to the meaning of some of the terms of the contracts provided by the various bidders for the job.

[92] In terms of collaboration with KMP, it was acknowledged by Mr Simonsen that, from time to time, he worked with the KMP to obtain direction and decisions on financial responsibilities which were not within his authority. 131

[93] It was Mr Simonsen’s evidence that the monthly paper was developed by Datacom and was sent to him, as instructed by the KMP for further distribution. 132

[94] With respect to his strategic and leadership input, Mr Simonsen explained that the example provided by Mr Crockett was simply a review of the approach (information and technology - wise) that Mr Gibbs wish to take on the project he was managing. It was stated that Mr Gibbs sought his specialist import and that he (Mr Simonsen) had technically assisted Mr Gibbs, hands-on, with the technology Mr Gibbs required for his project. 133

Administrative duties

[95] A further issue was the degree of daily administration involved in the position. It was contended by Mr Simonsen that 50% of his daily tasks were administrative. These were said to not be typically associated with a person in a senior position. Mr Simonsen also gave evidence that, on the appointment of a Technology Coordinator, that person took over a lot of his administrative tasks. For the company’s part, it contended that Mr Simonsen’s contention in this regard was not consistent with the evidence nor particularised by Mr Simonsen.

[96] It is noted that the memorandum that was issued by Mr Simonsen in announcing the appointment of the Technology Coordinator, 134 stated that the Technology Coordinator was responsible for coordinating activities between IT and telephony service providers and the company. This was said to include ensuring that the company receives appropriate support within contract it or expected timeframes. In addition, the Technology Coordinator would be the on-site IT support resource for the business and would be the first point of contact for requests that were outside of Datacom’s support capabilities.

[97] On the basis of the evidence before me, I am satisfied that there was a significant administrative component to Mr Simonsen’s role prior to the appointment of a Technology Coordinator. This component remained within the IT function for which Mr Simonsen was responsible.

Financial authority

[98] Another issue concerned the financial authority which was delegated to Mr Simonsen. There was a difference of opinion between the parties as to whether or not Mr Simonsen was aware that his delegated financial authority was $2000. Mr Simonsen relied on the company’s argument that that was his delegated financial authority to argue that this was proof that his position was not appropriately senior when one of the criteria in Currie is taken into account.

[99] The company’s characterisation of the nature of the financial issues that were raised in Currie is accepted. Therefore, there is no need to further consider this aspect of the matter except to note that the parties have conflicting views in relation to this matter.

Job description

[100] In terms of the actual Job Description document, it was the company’s contention that the major activities set out under each of the Key Results Areas, were indicative of the seniority of Mr Simonsen’s position. The company highlighted the major activities including:

Set overall direction for IT through strategic planning and evaluation.

Provide the company with outcome focused risk advice and insights that influence decisions, optimise risk/reward balance and assist the company in achieving its objectives within risk appropriate and legal parameters.

Maintain security of all data proprietary to the company and provide for the complete backup of all computer systems in the case of system failure or disaster.

Work with the IMS system representatives to ensure that the requirements of the ISO IT Security Management Standard are implemented.

Streamline business processes, increase employee productivity and improve the quality of customer service by maintaining the IT infrastructure.

Build strong and effective relationships with internal business partners and external business and external suppliers.

[101] Apart from asserting that these major activities were indicative of such a senior position as to be non award covered, the company does appear to have provided specific examples of the major activities in each of the Key Results Areas which had been undertaken by Mr Simonsen. For example there does not appear to be evidence in relation to the key major activity of setting the overall direction for IT through strategic planning and evaluation.

[102] On the other hand, Mr Simonsen said that he undertook some of the duties but not all of them. With the change in his reporting line, it was Mr Simonsen’s evidence that his day-to-day work did not change. However, what did change was a reduction in the number of higher-level questions that he was being asked.

[103] On the basis of the material before me, there appears to be a disconnect between the requirements of the position as set out in the job description and the role and functions that Mr Simonsen performed. This is in addition to differing views as to the value of Mr Simonsen’s duties and functions. I agree with the company’s contention that, during his oral evidence, Mr Simonsen sought to downplay the seniority of his position. Equally, it may be said that Mr Crockett, during his evidence, sought to enhance the level at which Mr Simonsen operated within the company. These will all be dealt with later in the decision.

Criteria in Currie and Lanteri

[104] Finally, the decisions in Currie and Lanteri set out various criteria for determining whether the position was a senior management role or a middle management role. When the relevant criteria are applied in this particular matter, the result is as follows:

Mr Simonsen did not report directly to the CEO or Managing Director (as in Currie and Lanteri)

Mr Simonsen was not a member of the company’s Executive Management Board or similar as was found in Currie.

Mr Simonsen was required to compile monthly reports in relation to his department (this was found, in Currie, to be reflective of a senior manager’s position). It should be noted that the monthly reports that were provided by Mr Simonsen concerned the number of IT incidents raised by employees; the number resolved within the Service Level Agreement and the number of major incidents. In addition, the project status and estimated project end date for the IT and telephony projects were set out in a summary. 135 It was Mr Simonsen’s undisputed evidence that the report was developed by Datacom and sent to him, as instructed by the KPM, for distribution.

Mr Simonsen’s total remuneration package was $164,000 plus superannuation compared with Mr Currie’s total remuneration package of $143,532 in 2013.

The Award classification structure does not indicate an intent regarding responsibility for strategic and policy responsibilities at a corporate level. Mr Simonsen’s job description required setting the overall direction for IT through strategic planning and evaluation. However, there is not a great deal of evidence that Mr Simonsen performed this activity.

In Lanteri, the applicant was operating at a highly professional level at a very high level organisation. In this matter, it is clear that Mr Simonsen was the most senior IT specialist in the company. Up until February 2015, Mr Simonsen was the only IT specialist within the company. At that point a Technology Coordinator was recruited reporting to him.

[105] Taking all of the above considerations into account, I now turn to consider the principle purpose test. It is common ground that the primary purpose of Mr Simonsen’s position was as set out in the Primary Objective of the job description. This is as follows:

“Responsible for all aspects of the company’s information technology and systems by managing controls and risks in the planning, implementation and evaluation of the company’s IT systems and ensuring the effective, efficient and secure operation of all automated data processing systems in order to improve cost effectiveness, service quality and business development.” 136

[106] However the parties disagreed as to the degree to which the position was a hands-on or strategic planning position. From the company’s perspective, the position was a senior position, part of the senior management team, which provided technical IT expertise and advice to the KMP. On the other hand, Mr Simonsen emphasised the degree of hands-on administrative work required.

[107] It was common ground, and clear from the evidence, that Mr Simonsen performed the role of an in-house IT specialist. The question is whether the provision of that specialist knowledge/expertise and advice was within the context of a senior management position. From the evidence, it appears that the position encompass both higher-level duties together with lower level ones. An example of the higher-level duties was Mr Simonsen’s role as part of the group who renegotiated the contract with Datacom. The group included the Managing Director, COO and the CFO. At the other end of the spectrum are the IT administrative duties and the redistribution of a service provider’s monthly report to the Board (monthly report).

[108] It has already been found that Mr Simonsen’s position, organisationally, was two levels below that of the Managing Director. Mr Simonsen’s manager (the COO) was between Mr Simonsen and the Managing Director. Mr Simonsen had one direct report and was the most senior IT employee in the business. Mr Simonsen’s salary was considerably above that of the Level 6 classification in the Banking Award.

[109] On fine balance, on the basis of the application of the principle purpose test, I have been persuaded that Mr Simonsen’s position was a senior management position which operated at a higher level than a middle management position covered by Level 6 of the Banking Award. The principal purpose of a position is that determined principally by the employer. In this case, the principal purpose of Mr Simonsen’s position was responsibility for managing controls and risks in the planning, implementation and evaluation of the company’s IT systems and ensuring its effective, efficient and secure operation. In reality, the work that was performed by Mr Simonsen was in accordance with the primary role objective but it also included a substantial amount of work that was more hands-on and less strategic in its focus. In his evidence, Mr Simonsen gave a number of examples of his work at the higher (senior managerial) level. These included that, in relation to Project Aristotle, the decision to go with a particular provider had been made by the COO, Managing Director, CFO, Senior Manager Operations and himself.

[110] It was also Mr Simonsen’s evidence that he had also been involved in some of the evaluation, and had assisted in the decision-making, in relation to fairly large projects. The two examples Mr Simonsen gave related to the Risk Register project and the PWC audit. Mr Simonsen explained that the reason for his involvement was that there was no other appropriate person within the company who had the specialist skill to understand the technological issues. That is a statement of fact but it does not take away from another fact - that Mr Simonsen did contribute to the decision making at that senior level.

[111] It is also clear from the evidence that there was a significant component of hands-on, non-strategic duties. These included the database, telephone and computer administration and support together with being the internal contact point within the business in relation to issues with the IT system. These responsibilities were, however, delegated to the Technology Coordinator position from February 2015. The evidence shows that Mr Simonsen was also involved in providing advice on the set up of the new offices on a particular floor. This included advice in relation to the audiovisual and other requirements. It is acknowledged that this advice was provided directly to the Managing Director and the COO. However, it is my view that this particular project was more of a middle management project rather than a senior management project.

[112] On this basis, I find that Mr Simonsen is not covered by the Banking Award. Therefore, Mr Simonsen is not covered by a modern award and is not a protected person for the purposes of section 394 of the Act. It follows, that the Commission does not have jurisdiction to deal with Mr Simonsen’s unfair dismissal application.

[113] Accordingly, Mr Simonsen’s application is dismissed. An order 137 to this effect will be issued separately.

Appearances:

G Simonsen appeared on his own behalf

J Singh of Sphere Legalfor the Respondent

Hearing details:

2015.

Melbourne and Perth (video hearing):

October 15, 27.

Final written submissions:

Respondent, 9 November 2015

Applicant, 18 November 2015

Respondent, 24 November 2015

1 Exhibit R2 at paragraphs 13 - 14 and Attachment JM 03

2 Transcript PN 38 - 54

3 Ibid PN 154 and 164 and Exhibit R2 at Attachment JM 02

4 Ibid PN 162 and 172

5 Exhibit R2 at paragraphs 24 - 25 and Attachment JM 08

6 Transcript PN 186

7 Ibid PN 233 - 243

8 Attachment to Exhibit A2

9 Transcript PN 325 and 327

10 Ibid PN 330

11 Ibid PN 332 - 334

12 Ibid PN 324, 329, 336 and 339

13 Ibid PN 336 - 338

14 Ibid PN 340 - 341

15 Ibid PN 345 - 346

16 Exhibit R3

17 Transcript PN 363 - 365

18 Ibid PN 355

19 Ibid PN 389 - 393

20 Exhibit R2 at paragraph 21

21 Ibid at paragraph 22

22 Exhibit R4

23 Ibid at paragraph 3 and Transcript PN 426 - 429

24 Ibid PN 430 - 433 and 509

25 Ibid PN 434

26 Ibid PN 435 - 436

27 Ibid PN 437 - 443, 513 and 521 and Exhibit R4 at paragraph 3

28 Ibid PN 515 - 519 and 522

29 Ibid PN 524

30 Ibid PN 445 - 450

31 Ibid PN 457, 460 and 463

32 Ibid PN 464 - 465

33 Ibid PN 467 - 469

34 Ibid PN 486

35 Ibid PN 488

36 Ibid PN 491

37 Ibid PN 503 - 504

38 Ibid PN 496 - 497 and 505 - 507

39 Ibid PN 496 - 499

40 Exhibit R4 at paragraph 14a

41 Ibid at paragraph 14b

42 Ibid at paragraph 14c

43 Ibid at paragraph 14e

44 Ibid at paragraph 14g

45 Ibid at paragraph 14f

46 Ibid at paragraphs 49 - 55

47 Exhibit A3 at paragraph 4 and Transcript PN 88 - 90

48 Ibid PN 93 - 98

49 Ibid PN 120 - 128

50 Ibid PN 129 - 130

51 Ibid PN 136 - 141

52 Ibid PN 146 - 148

53 Ibid PN 149 - 155

54 Ibid PN 156 - 157

55 Ibid PN 170 - 173

56 Ibid PN 176 - 180 and 232

57 Ibid PN 181

58 Ibid PN 182 and Exhibit A3 at pages 4 - 5

59 Ibid PN 185 - 189

60 Ibid PN 190 - 195

61 Ibid PN 197 - 202

62 Exhibit R4 at Attachment LC 04

63 Transcript PN 204 - 217

64 Ibid PN 218 - 222

65 Ibid PN 226 - 227

66 Ibid PN 228

67 Ibid PN 229 - 231

68 Ibid PN 233 - 234

69 Ibid PN 239 - 243 and Exhibit R4 at Attachment LC 15

70 Ibid PN 246 - 247

71 Ibid PN 248 - 249

72 Ibid PN 252 - 254

73 Ibid PN 254 and 258 - 259

74 Ibid PN 258

75 Ibid PN 261 - 266

76 Exhibit R1 at paragraphs 5 - 6 and 9

77 MA000019

78 Exhibit R1 at paragraph 2

79 Ibid at paragraph 8

80 Ibid at paragraph 9

81 [2013] FWC 3225

82 Exhibit R1 at paragraphs 10 - 12 and Respondent’s Outline of Closing Submissions, dated 9 November 2015, at paragraphs 13 - 14

83 [2012] FWA 4801

84 Exhibit R1 at paragraph 14

85 Ibid at paragraph 15

86 Respondent’s Outline of Closing Submissions, dated 9 November 2015, at paragraphs 8 - 12

87 Ibid at paragraph 15

88 Ibid at paragraphs 16 - 17

89 Ibid at paragraph 18

90 Ibid at paragraph 19

91 Ibid at paragraph 20

92 Ibid at paragraph 21

93 Ibid at paragraphs 21 - 30

94 Ibid at paragraph 31 - 32

95 Ibid at paragraph 33

96 Exhibit A3 at pages 4 and 6

97 Ibid at page 6 and Applicant’s Outline of Closing Submissions, dated 18 November 2015, at page 4

98 Ibid at page 4 and Applicant’s Outline of Closing Submissions, dated 18 November 2015, at pages 4 - 5

99 Ibid at page 6

100 Ibid at page 6 and Applicant’s Outline of Closing Submissions, dated 18 November 2015, at pages 6 - 7

101 Exhibit A2 at page 2

102 Ibid at page 4

103 Ibid at pages 1 - 2 and Applicant’s Outline of Closing Submissions, dated 18 November 2015, at pages 2 - 4

104 Respondent’s Outline of Closing Submissions, dated 9 November 2015, at paragraph 2

105 Exhibit R1 at paragraph 5

106 Ibid

107 Respondent’s Outline of Closing Submissions, dated 9 November 2015, at paragraph 3

108 Ibid

109 Exhibit R2 paragraph 6

110 Exhibit R4 at paragraph 10

111 [2011] FWA 3763

112 Ibid at [34]

113 [2013] FWC 3225 at [31]

114 Exhibit R2 at Attachment JM 02

115 Ibid at clause 29

116 Exhibit R3 and Attachment to Exhibit A3

117 Exhibit R2 at Attachment JM 08

118 Ibid at Attachment JM 01

119 Exhibit R4 at paragraphs 14 and 17 - 20 and Attachment LC 02

120 Ibid at paragraphs 14 and 21 - 24 and Attachment LC 10

121 Ibid at paragraphs 14 and 37 - 38 and Attachment LC 11

122 Ibid at paragraphs 14 - 16 and Attachment LC 01

123 Ibid at paragraphs 14 and 32 - 36

124 Ibid at paragraphs 14 and 38 - 42 and Attachment LC 12

125 Ibid at paragraphs 43 - 44 and Attachment LC 13

126 Ibid at paragraphs 45 - 48

127 Exhibit A2 at paragraph 2

128 Ibid at page 2

129 Ibid at page 3

130 Ibid at page 2

131 Ibid at page 3

132 Ibid

133 Ibid

134 Exhibit R4 at Attachment LC 14

135 Ibid at Attachment LC 01

136 Exhibit R2 at Attachment JM 08

137 PR577366

Printed by authority of the Commonwealth Government Printer

Gregory Simonsen v Pioneer Credit Limited

[2016] FWC 901

26 FEBRUARY 2016

DECISION