Lisa Cazzolli v ServicePoint Pty Ltd
[2012] FWA 2906
•4 APRIL 2012
[2012] FWA 2906 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lisa Cazzolli
v
ServicePoint Pty Ltd
(U2011/2575)
COMMISSIONER DEEGAN | CANBERRA, 4 APRIL 2012 |
Termination of employment - application for unfair dismissal remedy - jurisdictional objection - whether applicant covered by an award.
Introduction
[1] This matter arises from an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) made by Ms Lisa Cazzolli (the applicant) in respect of the termination of her employment by Service Point Pty Ltd (the employer) on 5 December 2011.
[2] On 21 December 2011 the employer filed a response to the application objecting to the Tribunal’s jurisdiction to determine the application and seeking dismissal of the application on the basis that the applicant was not a ‘person protected from unfair dismissal’ for the purposes of s.382 of the Act because she was a high income earner who was not covered by an award or an agreement. The employer objected to conciliation prior to the determination of the jurisdictional issue.
[3] Material initially filed on behalf of the applicant claimed that the applicant was not excluded from the unfair dismissal jurisdiction as her employment was covered by the Telecommunications Award 2010 1. The material filed on behalf of the employer claimed that the employer was not subject to the Telecommunications Award. Subsequently additional material was filed for the applicant putting two alternative positions, that she had been covered by the Clerks Private Sector Award 20102 or covered by the Miscellaneous Award 20103.
[4] The parties agreed that unless the applicant was covered by an award she could not make an application as her remuneration exceeded the high income threshold and no enterprise agreement applied to her employment. The applicant had completed the minimum employment period.
Relevant Statutory Provisions
[5] The relevant provisions of the Act are set out 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 $118,100 from 1 July 2011
47 When a modern award applies to an employer, employee, organisation or outworker entity
When a modern award applies to an employee, employer, organisation or outworker entity
(1) A modern award applies to an employee, employer, organisation or outworker entity if:
(a) the modern award covers the employee, employer, organisation or outworker entity; and
(b) the modern award is in operation; and
(c) no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity.
Note 1: Section 57 provides that a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.
Note 2: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).
Modern awards do not apply to high income employees
(2) However, a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee.
Modern awards apply to employees in relation to particular employment
(3) A reference in this Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment.
48 When a modern award covers an employer, employee, organisation or outworker entity
When a modern award covers an employee, employer, 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.
Note: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).
Background
[6] Evidence in this matter was given by the applicant, by Ms Julie Howard (former Corporate Services Manager for the employer) on the applicant’s behalf, and by Mr Trevor Plant, CEO of the employer during the applicant’s employment, for the employer.
[7] The applicant was employed by the employer from 16 March 2009, in the position of Support Services Manager 4. In January 2010 her title was changed5, at her request, to Services Delivery Manager. In an email dated 12 January 2010, the applicant stated:
I have discussed with Trevor my concerns about my current title of support services manager and the confusion it creates. It was recently asked by a customer if I was a help desk supervisor. Trevor and I agreed that changing my title to service delivery manager will ensure that customers and vendors are aware of what my role is 6.
[8] Initially the applicant reported directly to the CEO, Mr Plant but, following a reorganisation in October 2010, she reported to a newly created position, the National Operations Manager, who reported to the CEO. Despite the reorganisation it was the applicant’s evidence that none of her duties were removed, though some may have been reduced, and her salary and reemployment contract were untouched.
[9] The evidence was that the applicant had responsibility for the operations of both the secured and unsecured service desks, and for managing business improvement processes and procedures pertaining to those desks. She also had responsibility for the supervision of a number of employees, including a number of technical support staff, the training officer and service desk supervisor, and employees working on the service desks. It was her evidence that she was responsible for managing and mentoring the staff and giving them direction. Evidence called by the applicant showed that at the time of the dismissal there were, on paper, ten positions which reported to her although a number were actually vacant.
[10] According to the applicant from the commencement of her employment until the reorganisation in October 2010 she considered herself part of the senior management team. When asked about her administrative tasks it was the applicant’s evidence that she had day to day email contact with customers.
[11] The applicant also had a role in hiring staff for both the technical and operations areas, but did not decide the salary levels at which staff were paid. She did however make recommendations as to salary. The applicant also provided information for the budget-setting process but was not involved in meetings of senior management relating to service delivery strategies. Following the reorganisation, the applicant only provided input to senior management meetings through the Operations Manager.
[12] At the time of her dismissal the applicant’s salary was $124.036.81 per annum.
[13] After the reorganisation in October 2010 the applicant was requested to describe her position. In an email dated 9 June 2011she described her role as follows:
- Responsible for the continued development and management of the Company’s service delivery capability;
- Manage and maintain relationships with all stakeholders, including customers, staff, suppliers, and partners;
- Responsible for contract management and SLA KPIs;
- Work closely with the PMO and Sales to ensure relevant information is received and captured in the CMDB;
- Ensure that ITIL Service Management Principles are followed to improve performance and capability, ensuring continuous improvement;
- Attend regular customer meetings to ensure quality service as well as provide another touch point with customers and identify and report any potential opportunities to sales;
- Manage and mentor the SDAs and Team Leader;
- Provide monthly stats to management as well as providing customised reports to customers;
- Supervision of daily operations within the SD environment;
- Escalation point for service related request/concerns;
- Review and discuss report capabilities and documentation with sales to ensure service desk can achieve deliverables;
- Liaise with finance team to ensure billing processes are implemented and followed. 7
[14] The delegation register for the employer was produced. The employer put, and the applicant did not dispute, that the delegations held by the applicant at the time of the dismissal were the same that were extant in 2010 for the Service Delivery Manager. While the employer claimed that the Register showed that the Service Delivery Manager had responsibility and delegation for a wide range of activities, the applicant stated that this was so “on paper” only.
[15] Despite the applicant’s claim that the delegations were only “on paper” the CEO, Mr Plant, stated that the Register of Delegations was already in place at the time he joined the company. He stated that over time the Register was refined and adjusted and it was reissued a couple of times to take account of business change and business issues. He denied the applicant’s claim that the Register was at some time rescinded but noted that some delegations , such as hiring, were taken from staff and moved to the Board when the business was under stress.
[16] The applicant’s case was, effectively, that while she was initially employed in the company in a senior management position, following the 2010 reorganisation a “second layer” was interposed between senior management and her position, and at the time of her termination she was not in a managerial position.
[17] The evidence of the CEO, Mr Plant, was that the purpose of the 2010 restructure was to change the report lines so as focus the ‘doing’ part of the business on completing activities. It was submitted that the change was not a demotion, but a realignment of reporting lines to be better able to understand operational imperatives. The primary focus of this change was on project delivery. The applicant effectively retained all previous responsibilities.
[18] It was Mr Plant’s evidence that, as Support Services Manager and then Services Delivery Manager the applicant was responsible for the efficient and effective running of the company’s service desk teams and their supporting technicians. She was required to represent the company to clients and her role also included:
- Prioritising workloads and client requirements and the allocation of resources to them;
- Administering financial and governance responsibilities in accordance with the Register of Delegations;
- Recruiting new staff in line with the approved budget;
- Training existing staff and inducting new staff;
- Providing support to staff, through meetings, mentoring and daily management;
- Monitoring staff performance and administering staff matters;
- Resolving staff and client issues;
- Scheduling work and rosters and approving leave applications;
- Preparing and presenting reports as required, and
- Working in partnership with other senior members of the ServicePoint team as part of successfully running the business. 8
Consideration
[19] The question for determination in this matter is whether a modern award covered the applicant at the time of her dismissal. If it does then, although the applicant’s annual rate of earnings exceeded the high income threshold, she is a person protected from unfair dismissal for the purposes of s.382 of the Act.
[20] Three awards were put forward as being capable of covering the applicant’s employment. These were, in order of preference as put by the applicant :
- The Telecommunications Services Award 2010 [MA000041] (the Telecommunications Award); or
- The Clerks -Private Sector Award 2010 [MA000002] (the Clerks Award); or
- The Miscellaneous Award 2010 [MA000104] (the Miscellaneous Award).
The Telecommunications Award
[21] The applicant’s original, and preferred, position was that she was covered by the Telecommunications Award. In particular, it was put that she fell within the classification found at B.2.6 of Schedule B - Principal Customer Contact Leader.
[22] The employer submitted that the applicant was not covered by the Telecommunications Award as the employer was exempted from coverage by that award.
[23] The coverage of the Telecommunications Award is found at clause 4 of the award. Clause 4.1 provides:
This industry award covers employers throughout Australia who are engaged in the telecommunications services industry in respect of work by their employees in a classification in this award and their employees engaged in the classifications listed in clause 14-Classifications and minimum wage rates, of this award, to the exclusion of any other modern award 9.
[24] While it would appear that the employer is an employer in the telecommunications services industry, clause 4 also contains a number of exemptions to coverage including at clause 4.5(g):
a business whose principal function is the installation, service and/or maintenance of telecommunications equipment and lines, unless the business also operates that equipment and lines
[25] At paragraph 14 of the initial submissions filed by the employer it was stated that:
The Respondent’s business falls within this exclusion as:
a. ServicePoint’s principal function is the installation, service and maintenance of telecommunications equipment by installers, lines tradespeople, electricians, programmers and technicians. This telecommunications equipment includes videoconferencing and audiovisual equipment, video phones, cameras, cables, connectors, plasma screens, interactive screens, programmed room controls, and installation/integration with PABX, server and telecommunication lines to enable their operation across multiple sites and technologies. Together, these provide “a visual communication and collaboration solution” (per the Applicant’s contract);
b. The business sells this equipment to its customers as part of the installation process; hence it is owned and then operated by the customer, albeit potentially serviced and maintained by the business should the customer purchase a warranty option. Indeed, over 70% of ServicePoint’s revenue derive from equipment sales and this percentage is increasing annually; and,
c. The business does not own or operate telecommunication lines. These are owned and operated by the customer (such as Defence with military satellites) or a telecommunications carrier (such as Telstra and Optus). 10
[26] Nothing in the evidence of the applicant refuted the employer’s assertion that the exclusion covered the business.
[27] The evidence establishes that the Employer is not covered by the Telecommunications Award. It follows that the applicant’s employment could not be covered by that award.
The Clerks - Private Sector Award 2010
[28] It was argued for the applicant that if FWA were persuaded that the “administration of a line was critical to establishing the coverage of an employer by the Telecommunications Award” then the Clerks Award applied to the applicant’s circumstances.
[29] It was put that the applicant was within the classification Level 5 (B6 of Schedule B), given that she performed the functions attributed to a Call centre principal customer contact leader at paragraph (v) of B.6.2.
[30] The relevant paragraph reads:
- apply a significant range of fundamental principles and complex techniques across a wide and unpredictable variety of contexts in either varied or highly specialised functions;
- co-ordinate the work of a number of teams within a call centre environment; and
- have a number of specialists/supervisors reporting to them.
(v) Call centre principal customer contact leader is employed to:
An employee who holds a Diploma—Front Line Management or equivalent is to be classified at this level when employed to perform the functions defined.
[31] The employer does not dispute that it is an employer covered by the Clerks Award. It was submitted that the suggested classification was not appropriate as the applicant did not operate within a call centre environment and, in any event, the applicant was a manager and not “engaged wholly or principally in clerical work, including administrative duties of a clerical nature...” as required by clause 4.1, which is the coverage clause of that award.
[32] The applicant’s representative agreed that the question was whether the principal purpose of the applicant’s role was to perform managerial functions. It was contended that the evidence before the tribunal clearly established that the applicant was not performing managerial functions but service delivery functions that were akin to that of a call centre principal consultant. It was put that the duties that she performed were more of a client relationship customer service nature than they were of a managerial nature.
[33] The employer reiterated its position that the applicant held a senior management position in the company with delegated responsibilities in a wide range of areas beyond those contemplated by the classifications in the Clerks Award. It was put that the evidence of Mr Plant (the former CEO) and the applicant herself showed that her role and her salary were both well in excess of those provided under the Clerks Award. It was conceded that a number of her duties may well have fallen into the classifications in the award as was “to be expected of any generic tasking and role” given “the broad generality” of the tasks outlined in the classifications. Essentially the employer argued that the evidence showed that the applicant’s role and salary were both consistent with their principal purpose being senior management.
[34] I have taken account of all the evidence before me concerning the applicant’s role and duties. In particular, I have noted that the applicant;
- Considered herself a senior manager at the time of her employment;
- Had significant supervisory responsibilities;
- Had financial delegations at a level comparable with other senior managers;
- Had a role in the selection and hiring of staff; and
- Had reporting responsibilities consistent with a management role.
[35] The applicant was required to describe the functions of her role following the October 2010 reorganisation. The result is set out at [13] above and describes a position which, in my view, far exceeds that of a Level 5 Call centre principal customer contact specialist, a mid level position under the Clerks Award. In this respect I should also note that there was no evidence before me that the applicant’s role was confined to a call centre environment and this was denied by the employer.
[36] I do not accept the evidence of the applicant or Ms Howard concerning a change to the status of the applicant as a result of the 2010 reorganisation. I accept that an additional line of reporting was introduced between the applicant and the CEO of the company. I also accept that the applicant may not have retained her role as a member of the senior leadership group of the employer. However, I do not accept that these changes were of such significance that the applicant’s senior management role was so downgraded as to alter the function of that role to the principally clerical position of a call centre leader. The evidence does not support this claim. The applicant retained the same salary and delegations and the same supervisory responsibilities. On the applicant’s own evidence 11 she considered herself part of the senior management team of the employer when she first joined the company and, in my view, that situation remained.
The Miscellaneous Award 2010
[37] Finally, it was the applicant’s case that, if she were not covered by the Telecommunications Award or the Clerks Award, then she was covered by the Miscellaneous Award as “the role performed by the applicant is one that was clearly contemplated to be caught by an award and to be covered by an award, and therefore the Miscellaneous Award would apply to capture this position were it to fall through the gaps of these other awards as that award was designed to do.” 12
[38] Further it was put that the applicant “did not fall within the category of employees who because of the nature or seniority of their role were not contemplated to be covered by this award” as the evidence established that “the role she performed, particularly following the restructure in late 2010, was not one that involved a senior or managerial position”. It was argued that she was not an employee with specialist qualifications in accounting, finance, marketing, level, human resources, public relations, or even an IT specialist.
[39] It was put for the applicant that her salary level does not necessarily require her to be classified as a managerial employee, nor does it alone determine award coverage. Similarly the fact that the word ‘manager” was in her title does not satisfy the “principal purpose” test for the purposes of analysing and characterising the duties that she performed.
[40] The employer noted the following exclusion found in clause 4.2 of the Miscellaneous Award 13;
The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.
[41] According to the submission of the employer there was no doubt that the applicant was a managerial employee. Further, the Level 2 classification in the award, which the applicant claimed to fall within, had a salary less than half that of the Applicant’s. It was put that the applicant was claiming to have performed the duties actually performed by her subordinate staff, despite the significant differences in her role and responsibilities as set out in her own testimony.
[42] I accept the submission of the employer that the exclusion contained in clause 4.2 of the Miscellaneous Award operates to exclude the applicant from coverage of that award. The applicant held a senior management position falling within that class of managerial employees that have not “traditionally been covered by awards”. 14
Conclusion
[43] I find that at the time of her dismissal the applicant was not covered by a modern award. As no enterprise agreement applied to the applicant and her income exceeded the high income threshold at that time, I must find that the applicant is not a person protected from unfair dismissal within the meaning of s.382 of the Act.
[44] As there is no jurisdiction to deal with the application, the application is dismissed
COMMISSIONER
Appearances:
J Wilson and J Wyborn of Williams, Love & Nicol, for the applicant.
M Jakeman, for the employer
Hearing details:
2012.
Canberra
February 2; March 2.
1 MA000041
2 MA000002
3 MA000104
4 Exhibit C1 at Annexure B
5 Exhibit MFI2 at Annexure 9
6 Exhibit MFI2 at Annexure 9
7 Exhibit MFI2 at Annexure 2
8 Exhibit SP1 at Paragraph 10
9 MA000041
10 MFI1 at Paragraph 19
11 Transcript PN202
12 Transcript PN897
13 MA000104
14 MA000104 at Clause 4.2
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