Kevin Terrey-Ocock v Infosys Management Consulting Pty Ltd T/A Infosys Consulting

[2018] FWC 879

[2018] FWC 879

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Terrey-Ocock
v
Infosys Management Consulting Pty Ltd T/A Infosys Consulting
(U2017/10695)

DEPUTY PRESIDENT DEAN SYDNEY, 13 FEBRUARY 2018

Application for an unfair dismissal remedy – jurisdictional objections – high income threshold – whether a modern award covers the applicant.

[1] On 4 October 2017, Mr Kevin Terrey-Ocock made an application under s.394 of the Fair Work Act 2009 (the Act) claiming that he has been unfairly dismissed by Infosys Management Consulting Pty Ltd T/A Infosys Consulting (the Respondent).

[2] On 13 October 2017, the Respondent filed a jurisdictional objection to the application on the basis that Mr Terrey-Ocock’s employment was not covered by a modern award or an enterprise agreement and that his income exceeded the high income threshold.

[3] Mr Terrey-Ocock contended that although his income exceeded the high income threshold, he was covered by the Professional Employees Award 2010 (the Award).

[4] A hearing to determine the jurisdictional objection was held on 14 December 2017. Directions were issued for the filing of submissions and evidence and both parties filed extensive material in support of their contentions.

[5] At the hearing Mr Terrey-Ocock was represented by Mr I Latham of Counsel and the Respondent by Ms B Binns, solicitor. Both parties were granted permission to be represented pursuant to s.596 of the Act on the basis that the jurisdictional objection involved some complexity and it would provide efficiency in dealing with the matter.

Issue for determination

[6] The Respondent’s objection arises from s.382 of the Act which establishes 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.”

[7] It is common ground that Mr Terrey-Ocock has completed the minimum employment period, having been employed with the Respondent since 2013 until his dismissal on 15 September 2017.

[8] It is not in dispute that no enterprise agreement applied to Mr Terrey-Ocock and that his annual base salary at the time of his dismissal was $278,000 which exceeded the high income threshold of $142,000 prescribed by Reg 2.13 of the Fair Work Regulations 2009.

[9] Therefore, the issue for determination is whether Mr Terrey-Ocock was covered by a modern award for the purposes of s.382(b)(i) of the Act.

Award Coverage

[10] Section 48 of the Act sets out when a modern award applies and relevantly states:

“When a modern award covers an employer, employee, organisation or outworker entity

(1) A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity”.

[11] Each modern award contains a coverage clause, and the relevant provision of the Award in question states:

“4. Coverage

…

4.2 This award covers 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 B.”

[12] The ‘information technology industry’ is defined in clause 3.3 and means:

“(a) the design and manufacture of computers and computer peripherals;

(b) the design and manufacture of telecommunications equipment;

(c) the design and manufacture of computer software;

(d) computer system installation, repair and maintenance;

(e) computer consultancy services;

(f) computer programming;

(g) system analysis services;

(h) the design, development and maintenance of online internet architecture and the facilitation of online content management; or

(i) activities which are incidental, ancillary or complementary to the activities set out in this definition”.

[13] An outline of submissions dated 29 November 2017 filed on behalf of Mr Terrey-Ocock states that he was covered by the Award for the following reasons:

a) the Respondent was at all material times an employer in Australia principally engaged in the ‘information technology industry’ in accordance with clause 4.2 of the Award; and

b) Mr Terrey-Ocock was an employee covered by classifications in Schedule B- Classification Structure and Definitions (Schedule B), namely, B.1.9 Level 3 – Professional and B.1.11 Level 4 – Professional.

[14] It is not contested that the Respondent operates a business in Australia within the “information technology industry” for the purposes of clauses 3.3 and 4.2 of the Award. However, the parties disagree as to whether Mr Terrey-Ocock is an employee who is covered by the classifications in Schedule B.

[15] Before turning to consider the classifications set out in Schedule B, it is necessary to consider the definitions relevant to each classification.

[16] Mr Terrey-Ocock submits that he is a “professional information technology employee” within the meaning of clause 3.3 of the Award. The Award defines a “professional information technology employee” as:

“an adult person qualified to carry out professional information technology duties as defined. The term Professional information technology employee will embrace and include Graduate information technology employee and Experienced information technology employee as defined”.

[17] Clause 3.3 of the Award relevantly provides the following definitions of “Experienced information technology employee” and “Graduate information technology employee”:

“Experienced information technology employee means a professional information technology employee with the undermentioned qualifications in any particular employment the adequate discharge of any portion of the duties of which employment requires:

(a) that they have graduated with a university degree, with a science or information technology major (three, four or five year course) and had four years’ experience on professional information technology duties since graduating; or

(b) that they, not having so graduated, have sufficient qualifications and experience to be eligible for admission as a member of the Australian Computer Society plus a further four years’ experience on professional information technology duties.

…

Graduate information technology employee means a person who:

(a) holds a university degree with a science or information technology major (three, four or five year course) accredited by the Australian Computer Society at professional level; or

(b) has sufficient qualifications and experience to be eligible for admission as a member of the Australian Computer Society”.

[18] Mr Terrey-Ocock has submitted evidence that he was awarded Bachelor of Information Sciences in Information Systems, from the Massey University on 5 September 2003. It is not disputed and I accept that Mr Terry-Ocock holds such a qualification.

[19] Mr Terrey-Ocock states that he has “considerable information technology experience beyond that required by the Computer Society”. 1 The Respondent does not dispute that Mr Terrey-Ocock holds qualifications that would enable him to satisfy the membership requirements of the Australian Computer Society. Having regard to the uncontested evidence, I am satisfied that his experience is sufficient to allow him to be eligible for admission as a member of the Australian Computer Society.

[20] While Mr Terrey-Ocock submits that he is covered by the Award, it is also necessary to establish that he is “employed in a classification in the award”. 2

[21] During the hearing, Mr Latham relied upon the Level 4-Professional classification as the applicable classification covering Mr Terrey-Ocock. The Level 4 Professional classification applies where an employee performs professional work as set out in clause 3.3. The Respondent contends that the mere holding of relevant qualifications is not determinative as to whether the Award applies. 3

[22] The Level 4-Professional classification in Schedule B relevantly provides:

“For employment involving the performance of professional duties, the following classification definitions apply:

…

B.1.11 Level 4—Professional

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

(b) An employee at this level:

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

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

(iii) may take detailed technical responsibility for product development and provision of specialised professional engineering or professional scientific/information technology systems, facilities and functions;

(iv) coordinates work programs; and

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

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

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

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

[23] Determination of whether the Award covers Mr Terrey-Ocock’s employment for the purposes of s.382(b)(i) of the Act involves an assessment of “the nature of the work and the circumstances in which the employee is employed to do the work”  4. Accordingly, it is necessary to consider the ‘principal purpose’ of Mr Terrey-Ocock’s position as Senior Principal. In Carpenter v Corona Manufacturing Pty Ltd5, a full bench of the then Australian Industrial Relations Commission provided guidance on applying the principal purpose test: 

“In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties”.

[24] The Respondent submits that the Award does not cover Mr Terrey-Ocock’s employment with the Respondent because the position held by him prior to his dismissal was not a position which fell within any of the classifications listed in Schedule B to the Award. In particular, the Respondent submits that duties of the nature described in the Level 4-Professonal classification did not constitute the duties that constitute the principal purpose of Mr Terrey-Ocock’s position with the Respondent. 6

[25] There are a number of factors which may be taken into account in undertaking a principal purpose assessment, none of which are singularly determinative. In an analogous matter of Tucker v Digital Diagnostic Imaging 7, the Commission opined that factors relevant to determining whether the duties of the applicant in that case aligned to the description provided in the Award for the Level 4-Professional classification included:

“•  the contents of any job description, person specification or job advertisement

•  the level of remuneration assessed against award levels of remuneration and also considered in the context of remuneration levels within the employing organisation

•  the actual time occupied in different duties (a substantive role/function analysis)

•  the status and level of the position occupied within the organisational structure

•  possession or absence of particular qualifications and whether such qualifications are necessary to the exercise of the primary functions that are performed

•  the exercise of authority and direction over others including in particular, the extent of such authority

•  the level of importance and relevance of particular duties in the context of the employing organisation’s overall purpose

•  the level of decision-making capacity in the context of the employing organisation’s overall operation

•  the nature and extent of any role as representative of the employing organisation to third parties”. 8

[26] These factors will be considered in turn below.

Contents of Job Description

[27] Mr Terrey-Ocock submitted a job description issued on 8 April 2009 for his previous role of Program Director. 9 However, from 2013, Mr Terrey-Ocock “undertook duties of a Senior Principal” and completed employee evaluation forms which included “core elements of the Senior Principal job description”.10

[28] In Mr Terrey-Ocock’s LinkedIn profile, under the heading Experience, he lists his role of Senior Principle of Infosys from January 2013 to present in the following terms:

“Kevin is positioned as a senior leader within Infosys Consulting, the provider of Management Consulting services for Infosys and is a member of the Australian Leadership team. As such he has been responsible for Sales and Pipeline Development activities and staff development. Kevin’s strategic focus has been on Business and Technology Transformations.”

[29] In cross examination Mr Terrey-Ocock agreed that his position at the time of his dismissal was Senior Principal. He accepted that he described his position in his Linkedin profile as is set out in the earlier paragraph. He further accepted that his role was not limited to project management, but that he had responsibility for staff development, client and stakeholder management, and pipeline development and revenue. Mr Terrey-Ocock also agreed, in part, that he was responsible for business development and revenue management, and that his personal revenue target was $1.25 million per annum. 11

[30] Mr Terrey-Ocock accepted in cross examination that his role of Senior Principal included additional duties of project and program management. He also gave evidence that he was involved in coaching other employees, and that he managed individuals who were sometimes off-shore and located in different divisions of Infosys. In this regard, he gave evidence that he managed upwards of 100-200 personnel in some projects.

[31] His evidence was also that he was responsible for determining contract costings and was involved in the commercial negotiations for new contracts.

Remuneration

[32] As set out above, Mr Terrey-Ocock’s annual rate of earnings significantly exceeds the high income threshold. Clause 15 of the Award sets out the minimum annual wage payable to full-time employees in accordance with the classifications defined in Schedule B. Relevantly, the minimum wage payable to a Level 4-Professional is $70,245. This is significantly lower than Mr Terrey-Ocock’s annual income.

Time spent performing different duties

[33] There was some disagreement as to the type of work undertaken by Mr Terrey-Ocock. Mr Joost Hoeve, Managing Partner, stated that he agreed with Mr Terrey-Ocock’s statement about the work he undertakes in a narrow sense, however, he asserted that Mr Terrey-Ocock had not accurately described the nature of his role in relation to his function as a senior manager with significant budgetary responsibility. 12

[34] The evidence given by Mr Terrey-Ocock in cross examination, summarised earlier, suggests that he performed a broad range of high level duties.

Status/level of position

[35] Mr Terrey-Ocock occupied a senior position within the organisation. This is evidenced through the “Career Paths, Role Descriptions, Competency Framework” document which outlines the career trajectory for employees. The document shows that a Senior Principal is the third most senior role in the organisation after Partner and Associate Partner respectively. 13

[36] Mr Hoeve gave evidence that a typical project which Mr Terrey-Ocock would manage could earn between $250,000 to $10 million and above worth of fees and may have up to 100 people working on it based onshore and offshore, across multiple entities and units. Mr Hoeve also stated that Mr Terrey-Ocock’s role “sat above unit managers, overseeing a larger project for clients based in Australia”. 14 This is consistent with Mr Terrey-Ocock’s ‘Linkedin profile’ which states that he “has managed budgets of over $100 million, with 200 staff across multiple locations”.15

Qualifications

[37] Mr Terrey-Ocock possessed tertiary qualifications and was eligible to become a member of the Australian Computer Society, consistent with the Award definition of a “professional information technology employee”.

Authority and direction over others

[38] Mr Terrey-Ocock exercised significant authority and direction over other employees within the Respondent’s organisation. The “job designation and role description” for the position of Senior Principal relevantly states:

“You are recognised as a leader in your relevant industry or horizontal practice with an established reputation as an expert. You actively assume responsibilities for recruiting, coaching and competency development and may have a leadership role in a horizontal practice”. 16

Importance/relevance of role

[39] As discussed above, Mr Terrey-Ocock held a senior role in the Respondent’s organisation. The level of importance and relevance of Mr Terrey-Ocock’s duties in the context of the organisation’s overall purpose corresponded with his level of seniority.

Decision making capacity

[40] Mr Terrey-Ocock was responsible for making decisions which affected the overall organisation in terms of managing projects. Mr Hoeve’s statement noted that in relation to the “AIMIA Project”, Mr Terrey-Ocock was responsible for running of the project, with oversight provided by an Engagement Partner. 17 Further, Mr Terrey-Ocock’s ‘profile’ states that in relation to the “AIMIA Project”, he had a lead role in building the business case and transitioning services to the Respondent company.

Role as representative of Respondent

[41] The Respondent’s “job designation and role description” for the role of Senior Principal indicates that Mr Terrey-Ocock exercised a key role as a representative of the employer and was responsible for: “new business development, revenue management, client delivery excellence, managing and guiding teams and act as a trusted client advisor”. 18 Furthermore, Mr Terrey-Ocock’s own evidence suggest that he had well-developed relationships with numerous high-level external stakeholders.19

Findings and Conclusion

[42] Having considered the various factors that are mentioned above, I find that the principle purpose of Mr Terrey-Ocock’s position of Senior Principal was a senior leadership role, and was not to perform the duties of the nature described in level 4 (or any other classification) of the Award.

[43] The evidence demonstrates that the role of Senior Principal within the Respondent’s business involved senior management responsibility for large and complex information technology projects, combined with responsibility for business development and significant revenue generation. Whilst not conclusive by itself, Mr Terrey-Ocock’s earnings significantly exceeded the minimum wage payable to a Level 4 Professional employee under the Award. He exercised significant authority and direction over other employees within the Respondent’s organisation, and his description of his role in his LinkedIn profile supports a finding that the principle purpose of his position was that of a senior leader within the Respondents organisation, and not the performance of the duties described in level 4 of the Award.

[44] Accordingly, I find that he is not “employed in the classification in the award”.

[45] For the reasons set out above, I find that Mr Terrey-Ocock is not covered by the Award for the purpose of s.382(b)(i) of the Act and accordingly is not a person protected from unfair dismissal. As a result, I dismiss this application.

[46] An order to this effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

I Latham of counsel for Kevin Terrey-Ocock.

B Binns for Infosys Management Consulting Pty Ltd T/A Infosys Consulting.

Hearing details:

2017.

Sydney:

December 14.

<PR600284>

 1   Exhibit A1 at para 30.

 2   Brand v APIR Systems Ltd[2003] AIRC 1161 at [11]; Halasagi v George Weston Foods Limited[2010] FWA 6503 at [24].

 3   Form F3-Employer Response to Unfair Dismissal Application, dated 13 October 2017; Halasagi v George Weston Foods Limited[2010] FWA 6503.

 4   [2003] AIRC 1161 at [10], PR938031.

 5 (2002) 122 IR 387 at [9].

 6   Respondent’s submissions, dated 15 November 2017 at para 3.

 7   [2011] FWA 1767.

 8 Ibid at [22].

 9   Exhibit A2, Annexure 5.

 10   Exhibit R3 at paras 14-17 and Exhibit F pp.6-8.

 11   Transcript PN64-PN91.

 12   Exhibit R1 at para 15.

 13   Exhibit R1, Annexure A.

 14   Exhibit R1 at paras 17-18.

 15   Exhibit A2, Annexure 1.

 16   Exhibit R3, Exhibit D.

 17   Exhibit R2 at para 3.

 18   Exhibit R3, Exhibit D.

 19   Exhibit A2, Annexure 1.

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