Michael Westall v BWX Limited

[2018] FWC 2042

[2018] FWC 2042

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Westall
v
BWX Limited
(U2018/1485)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 8 MAY 2018

Application for an unfair dismissal remedy – jurisdictional objection – not covered by modern award – exceeded high income threshold – jurisdictional objection dismissed.

[1] On 14 February 2018, Mr Michael Westall (applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy.

[2] The applicant commenced employment with BWX Limited (respondent) on 18 April 2016 as Commercial Manager – BWX Brands. The applicant’s role at the time of dismissal was Head of Business Analytics. He was dismissed by the respondent on 13 February 2018.

[3] The respondent objects to the application on the grounds that the applicant was not covered by a modern award, and exceeded the high income threshold and was therefore not protected from unfair dismissal on 13 February 2018 within the meaning of s.382 of the Act.

[4] The respondent’s jurisdictional objection was heard before me on 6 April 2018 by way of determinative conference. The applicant gave evidence in support of his application. Ms Sharon Olsson, the respondent’s Director of Human Resources, gave evidence for the respondent.

[5] It was agreed that the applicant exceeded the high income threshold. However, the applicant contended that he was covered by an award, while the respondent disagreed. 1

[6] I have had regard to all submissions and evidence and other material.

Legislative provisions

[7] The Act provides that a person is protected from unfair dismissal in the following circumstances:

“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.”

Evidence

[8] Was the applicant covered by Level 5 of the Clerks – Private Sector Award 2010 2 (Clerks Award) as contended by the applicant? In relation to that issue the applicant gave evidence about his duties that he “would provide reports for management in the areas listed in the typical duties statement”3. This statement said he would produce a monthly Business Report, scan data report on market share etc., IMS reporting on sales etc., and other.4 The applicant said that Ms Cath Fifoot, Sales Director – Domestic, gave him this document in January 2018 and denied that it required a “deep understanding of sales”. He said that “…any analyst, anybody who analysed numbers and had any understanding of numbers would be able to interpret that data. It’s just looking at numbers”.5

[9] The applicant also said that:

•  He had no staff reporting to him; 6

•  He did not have forecasting sessions with customers and the National Account Manager responsible for the account; 7

•  He was expressly excluded from any customer meetings with the National Account managers; 8

•  He did not have meetings that were day long sessions where he would meet with key sales staff of key customers; 9

•  In nine months he had only six meetings with wholesalers warehouse/logistics staff which never last more than 30 minutes, and all planning and new lines and business development was conducted with the buyers etc. by the National Account Managers and Wholesale Manager; 10

•  He was not involved in meetings dealing with marketing initiatives and activities; 11

•  He was not included in any planning sessions but was told what was happening, which he had to use to develop a forecast, 12 and other matters;

•  He did not review competitor business activity by looking at data; 13

•  He had no role in or input into decisions on future sales etc., which were made between the Account manager and sales director; 14

•  All decision making capabilities were taken out of his hands when his role was changed in the latter part of his employment; 15

•  He denies that he missed a hole of $200,000 in sales; 16 and

•  He had limited contact with Ms Olsson. 17

[10] In relation to new documents tendered by the respondent shortly before the hearing, he gave evidence that a document headed ‘Forecast Assumptions’ 18 was prepared in conjunction with Ms Fifoot, who “…provided a large part of the feedback regarding what the assumptions are we should be putting in there.”19 In relation to a document ‘Sales Overview’, that was prepared in his previous role as Commercial Manager and not in his new role.20

[11] According to him, his role was essentially clerical, 21 and documents such as position descriptions were of no relevance. He was largely unshaken in cross-examination,22 and his evidence was credible. He said that he had ‘minimal’ contact with Ms Olsson and did not speak with her a couple of times a week, or have a catch up with her, and never spoke to her about his role.23 He said that he had reviewed the Clerks Award Level 5 characteristics and duties, and states that he fell within that in various respects.24

[12] Ms Olsson gave evidence which contradicted much of this. However, she was not his supervisor. Ms Fifoot was. Ms Olsson’s evidence about his duties was mainly or almost entirely hearsay in nature, as she repeatedly admitted. She said that the Forecast Assumptions were prepared by the applicant because the Sales Director, Ms Fifoot, told her, apparently without direct knowledge on her part either way. 25 She claimed that the applicant was not excluded from customer meetings despite asking to attend, but based this knowledge not on personal knowledge but on what she was told.26 She had no personal knowledge to dispute the applicant’s claim that he did not attend Sales and Operations Planning Meetings with members of the operations, sales and marketing teams, and that he did not present his forecasts at these meetings and discuss his findings, and did not present potential solutions for the team to discuss and review. She had no personal knowledge to support her claim that the applicant used business intelligence to provide insight to the wider business on opportunities and other matters. She had no personal knowledge to support the breakdown of the time he spent on different tasks.27 The applicant denied these claims,28 and withstood cross-examination on these issues.

[13] Ms Olsson sat in a different building and did not see the applicant day to day. 29 She had no notes substantiating her claim that she had regular catch ups with the applicant, contrary to his evidence.30

[14] I am not satisfied that Ms Olsson had much, if any, knowledge of what the applicant did after his job was restructured beyond knowledge gained from what she was told by others including Ms Fifoot. I am therefore not able to rely on her evidence to any significant extent. I prefer the evidence of the applicant where it is in conflict with that given by Ms Olsson, including his evidence on the infrequency and limited nature of the discussions he had with her.

[15] The respondent relied on a bundle of largely unorganised documents tendered at the last minute. 31 This material should have been provided earlier. The first document, ‘HR Classification Level use’, is of little relevance. It was prepared by Ms Olsson for gender reporting purposes on a monthly basis,32 and it does not contain any evidence additional to her evidence.33 The document ‘Forecast Assumptions’ has already been discussed. Ms Olsson had no personal knowledge of who prepared it.34

[16] In relation to a document with a heading of ‘Career Summary’ 35, the applicant in that document described himself as a “…management professional…”, and other matters. The applicant said that was a curriculum vitae he prepared when he applied for the job of Commercial Manager,36 and it is not relevant to his later restructured job. It deals with his skills, and such skills may or may not be required in a job, and the applicant gave evidence that they were not required. Similarly, a position description for a previous job as Commercial Manager is not relevant to the new job.37 Similar comments have to be made about the initial job offer.38 In relation to his new job as Head of Business Analytics, he forecasted but “…at a much lower level”39, provided reports but did not develop budgets,40 and he complained about changing roles41 and found that large parts of the role did not remain the same,42 he was not an important part of the sales team,43 and he did not remain a sales professional.44

[17] For completeness, the applicant’s letter of offer of 19 February 2016 45 is of little relevance to his later job as Head of Business Analytics. The position description for the job of Commercial Manager is similarly of little relevance because his duties had changed on the applicant’s evidence.46 In relation to the applicant’s curriculum vitae, the applicant said that was prepared when he applied for the job as Commercial Manager,47 and is not relevant to his later restructured job. Another position description for the job of Commercial Manager48 is similarly not relevant because duties had changed. A breakdown of the respondent’s employment structure49 is also of limited relevance. The new letter of offer made to the applicant on 24 July 201750 deals with terms and conditions of employment, although it does term him ‘Head of Business Analytics and directly reporting to the Sales Director – Domestic’. It does not contradict the evidence of duties as Head of Business Analytics given by the applicant. The respondent’s further structure chart51 again does not contradict the evidence of the applicant. The outline of duties of the Head of Business Analytics52 is contradicted by the evidence of actual duties given by the applicant. The ‘Target Plan 2017-2018’ for the applicant53 provides some limited support for the respondent, but is contradicted by the applicant’s evidence. Overall, the documents tendered do not provide much evidentiary assistance in this matter about the nature of the applicant’s actual duties.

[18] Ms Fifoot was the applicant’s supervisor, and had direct knowledge of his duties. She did not give evidence, and I was asked to draw an inference against the respondent, 54 pursuant to Jones v Dunkel55. No reasonable explanation for Ms Fifoot’s absence was given. The inference would not be for the purposes of filling a gap in the evidence or converting conjecture into inference. I am prepared to draw an inference that her evidence would not have assisted the respondent in contesting the evidence put by the applicant and quoted above. This assists the applicant, although I would have reached the same conclusion in any event.

Conclusions on the evidence

[19] The classification definition of Level 5 of the Clerks Award provides:

“B.6 Level 5

B.6.1 Characteristics

Employees at this level are subject to broad guidance or direction and would report to more senior staff as required.

Such employees will typically have worked or studied in a relevant field and will have achieved a standard of relevant and/or specialist knowledge and experience sufficient to enable them to advise on a range of activities and features and contribute, as required, to the determination of objectives, within the relevant field(s) of their expertise.

They are responsible and accountable for their own work and may have delegated responsibility for the work under their control or supervision, including, scheduling workloads, resolving operations problems, monitoring the quality of work produced and counselling staff for performance and work related matters.

They would also be able to train and to supervise employees in lower levels by means of personal instruction and demonstration. They would also be able to assist in the delivery of training courses. They would often exercise initiative, discretion and judgment in the performance of their duties.

The possession of relevant post secondary qualifications may be appropriate but are not essential.

B.6.2 Typical duties/skills

Indicative typical duties and skills at this level may include:

(i) Apply knowledge of organisation’s objectives, performance, projected areas of growth, product trends and general industry conditions.

(ii) Application of computer software packages within either a micro personal computer or a central computer resource including the integration of complex word processing/desktop publishing, text and data documents.

(iii) Provide reports for management in any or all of the following areas:

•  account/financial;

•  staffing;

•  legislative requirements; and

•  other company activities.

(iv) Administer individual executive salary packages, travel expenses, allowances and company transport; administer salary and payroll requirements of the organisation.

(v) Call centre principal customer contact leader is employed to:

•  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.

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.

B.7 Call centre technical associate

A call centre technical associate is employed to:

•  apply a significant range of fundamental principles and complex techniques across a wide and unpredictable variety of contexts in relation to either varied or highly specialised functions;

•  contribute to the development of a broad plan, budget or strategy;

•  work with a high degree of autonomy and be accountable and responsible for themselves and others in achieving outcomes (some supervision may be required);

•  be involved in the design, installation and management of telecommunications computer equipment and system development;

•  assess installation requirements;

•  design systems;

•  plan and perform installations; and

•  install and manage data communications equipment and find faults.”

[20] In Mr Shane Layton v North Goonyella Coal Mines Pty Ltd 56,the majority of the Full Bench said:

“… the task of interpretation is not a quantitative one based upon time spent performing certain types of duties. Rather, the task involves a qualitative assessment of the primary purpose of the position. Professional and managerial employees are clearly not clerks. Where the primary purpose of the role is the exercise of skills of a professional or quasi professional nature, the role will not be regarded as clerical – notwithstanding that the role involves various recording and ordinary administrative office functions.” 57

[21] In Michelle Gray v Hamilton James and Bruce Pty Limited (Gray) 58, a Full Bench said:

“In our view, a proper reading of his Honour’s decision indicates the Senior Deupty President regarded Layton’s case as establishing that he should use a principal purpose or primary function test to determine whether Ms Gray’s position was covered by the Clerks Award 2010 and used that test in deciding whether Ms Gray was covered by the Clerks Award 2010. His Honour did not rely on the coverage of the NAPSA or the facts in Layton’s case to conclude Ms Gray was not covered by the Clerks Award 2010.” 59

[22] In Gray, the applicant was the most senior position in the Brisbane office of a company, and that office was responsible for providing recruitment services predominantly to Queensland and Western Australian clients. She was responsible for 23 staff, eight of whom directly reported to her. She had other responsibilities.

[23] In Mr James Kaufman v Jones Lang LaSalle (Vic) Pty Ltd T/A JLL 60,the Commission said that there was nothing in the evidence before the Commission which showed that the applicant’s duties “…could properly be described as ‘managerial’”.61 In that matter, a number of claims were made, and documents tendered, but there was little or no evidence of actual managerial duties. In that decision, the Commission found that the ‘principal purpose’ of the role fell within an award classification.62

[24] The applicant’s evidence indicates that there is little, if any, reason to conclude that his actual duties were professional or managerial, regardless of his somewhat grandiose job title and previous job. Having regard to the totality of his evidence, including about the Clerks Award, 63 his principal duties did not exceed those of an employee engaged wholly or principally in clerical work, including administrative duties of a clerical nature, as defined in the coverage and definitions and interpretations clause of the Clerks Award.64 As the applicant’s representative submitted, the broad descriptor of his job was preparing reports, which falls within the typical duties/skills of a Level 5 of the Clerks Award, which includes:

“[To] provide reports for management in any or all of the following areas:

•  accounts/financial

…

•  other company activities.” 65

[25] The applicant meets each of the characteristics in clause B.6.1 of the Clerks Award, except the reference to training. He has post secondary qualifications, which may be appropriate but are not essential and he performs many of the typical duties/skills except for clauses B.6.2(iv) and (v).

[26] For the reasons above, the applicant is a person protected from unfair dismissal and the respondent’s jurisdictional objection is dismissed.

[27] The file will be returned to the Unfair Dismissal Case Management Team and the application will be processed in the normal way. An order is contained in PR601863.

DEPUTY PRESIDENT

Appearances:

G Dircks for the applicant.

J Tierney for the respondent.

Hearing details:

2018.

Melbourne:

April 6.

Printed by authority of the Commonwealth Government Printer

<PR601862>

 1   Transcript PN18-19.

 2   MA000002.

 3 Exhibit W1 at [25].

 4   Ibid, Attachment MW2.

 5   Transcript PN645-646.

 6 Exhibit W1 at [9].

 7 Ibid at [35].

 8 Ibid at [36].

 9 Ibid at [37].

 10 Ibid at [38].

 11 Ibid at [40].

 12   Ibid at [41]-[45].

 13 Ibid at [46].

 14   Ibid at [48]-[49].

 15 Ibid at [50].

 16 Ibid at [54].

 17 Ibid at [27].

 18   Exhibit B3.

 19   Transcript PN493.

 20   Transcript PN502-504.

 21 Exhibit W1 at [18].

 22   Transcript PN511-698.

 23   Exhibit W1 at [27]-[31].

 24   Ibid at [18]-[25].

 25   Transcript PN397-403.

 26   Transcript PN442-443.

 27   Exhibit B1 at [27]-[33]; Transcript PN453-462.

 28   Exhibit W1 at [40]-[53].

 29   Transcript PN419.

 30   Transcript PN421.

 31   Exhibit B3.

 32   Transcript PN293-297.

 33   Transcript PN359-370.

 34   Transcript PN400-401.

 35   Exhibit B1, Annexure SO-3.

 36   Transcript PN514.

 37   Transcript PN549.

 38   Exhibit B1, Annexure S-O6.

 39   Transcript PN575.

 40   Transcript PN576.

 41   Transcript PN579.

 42   Transcript PN585.

 43   Transcript PN586.

 44   Transcript PN587.

 45   Exhibit B1, Annexure SO-1.

 46   Transcript PN549.

 47   Transcript PN514.

 48   Exhibit B1, Annexure SO-4.

 49   Ibid, Annexure SO-5.

 50   Ibid, Annexure SO-6.

 51   Ibid, Annexure SO-7.

 52   Ibid, Annexure SO-8.

 53   Ibid, Annexure SO-9.

 54   Transcript PN741.

 55 (1959) 101 CLR 298.

 56   [2007] AIRCFB 713.

 57 Ibid at [26].

 58   [2011] FWAFB 6884.

 59 Ibid at [27].

 60   [2017] FWC 2623.

 61 Ibid at [20].

 62   Ibid at [45]-[46].

 63   Exhibit W1 at [18]-[25].

 64   See Michelle Gray v Hamilton James and Bruce Pty Limited [2011] FWAFB 6884 at [37].

 65   MA000002 at Schedule B clause B.6.2(iii).