The Case

Mr Kaufman was a regional director of a multibillion-dollar real estate business, Jones Lang LaSalle (LaSalle). Mr Kaufman was employed by LaSalle from September 1989 until December 2016, when his position was made redundant. Mr Kaufman commenced unfair dismissal proceedings in the Fair Work Commission (FWC) claiming his redundancy was not genuine.

To bring an unfair dismissal claim in the FWC, Mr Kaufman had to prove he:

• had completed the requisite minimum period of service (12 months for small businesses and 6 months for larger businesses); and
• earned less than the high income threshold (which at the time was $138,900 per annum) or be covered by the classifications of a modern award.

Mr Kaufman earned in excess of $138,900 a year so he was required to prove he was covered by the Real Estate Industry Award 2010 (the Award) to proceed with his unfair dismissal claim. The Award contains employee classifications up to middle level management, such as ‘Property Sales Representative’ and ‘Property Sales Supervisor’. Normally, higher-level executive roles are not covered by modern awards.

LaSalle objected to the unfair dismissal claim on the basis Mr Kaufman’s senior position was not covered by the Award in that he:

• performed high-level executive duties beyond those described under the Award classifications;
• held the executive position of regional director, a substantially more senior role than the Award classifications allowed; and
• received remuneration well above the highest position prescribed by the Award.

Verdict

The FWC held LaSalle was covered by the Award and was eligible to proceed with his unfair dismissal claim given that:

• Mr Kaufman’s duties were similar to those of a property sales representative referred to in the Award, as he listed and sold properties and businesses, and
• interacted with buyers and sellers; and
• where the employee’s duties correspond with the coverage provisions of an award, high remuneration and senior position titles simply demonstrate the employer’s view that the employee is a valuable part of the business.

Lessons For You

When determining whether an employee is covered by a modern award, the courts will focus on the substantive duties performed by the employee, not simply the position title of the employee or their level of remuneration. As such, some senior employees may have access to the unfair dismissal laws.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.