Manager argues he was covered by award but employer says otherwise
A manager recently asserted that he was covered by a relevant award in conjunction with his unfair dismissal application. The matter then discussed the importance of ascertaining which aspect is more important in coverage disputes: whether it’s an employee’s job title or the nature of his position.
Before the Fair Work Commission (FWC), Sander Toonen raised concerns about his alleged unfair dismissal from Veem Limited. Veem challenged the jurisdiction of the Commission, arguing that Toonen wasn't protected under the Fair Work Act of 2009, sparking a debate over his employment status and coverage under relevant awards.
The case revolved around whether Toonen's role at the time of dismissal fell within the scope of either the Professional Employees Award 2020 (PE Award) or the Manufacturing and Associated Industries and Occupations Award 2020 (MAIO Award). To establish this, a thorough examination of his job responsibilities and industry coverage was essential.
After a case management conference on November 17, 2023, directions were issued for material filing, leading to an in-person hearing on December 13, 2023. Prior to the hearing, comprehensive documentation was compiled, facilitating a structured review of submissions and evidence presented by both parties.
Job title vs. nature of work
According to records, Toonen's role as an after-sales and support manager entailed multifaceted responsibilities, including project coordination post-sale, continuous improvement of support systems, documentation development, and team management.
His duties spanned from overseeing technical aspects to managing client relationships, highlighting the breadth of his role within Veem's operational framework.
While Veem argued that Toonen's role leaned towards managerial functions, he contended that his day-to-day activities were technically oriented, involving extensive hands-on work with gyrostabilisers. This led to a discussion regarding the interpretation of award coverage based on the nature of duties performed, rather than job titles alone.
Toonen's submission emphasised the qualitative assessment of his role's primary purpose, drawing parallels with established precedents to support his claim for award coverage.
Conversely, Veem argued that managerial positions were exempt from award coverage, asserting that the MAIO Award was geared towards production roles, excluding Toonen's managerial responsibilities.
Was the manager covered?
Toonen argued that the MAIO Award is an industry-specific award and clearly covers Veem’s activities. He said his role as described in his contract of employment and his job description fit within the engineering streams recognised within the classification definitions in the award.
The FWC said the case warranted the application of the “principal purpose” test. “[This] requires an examination of the nature of the work of the employee in question and the circumstances in which the employee is employed to do the work for the purpose of ascertaining the principal purpose for which the employee is employed.”
“This is a question of fact. Once that is done, the principal purpose as identified must be compared to the classification descriptor in order to determine whether it falls within the scope of that descriptor,” it added.
After a thorough examination, the FWC said that “the primary purpose of Toonen’s role was to manage the provision of after-sales service to gyrostabiliser customers.”
“This required managing the after-sales team, and also taking an active role in providing troubleshooting and technical advice. Toonen’s role could not be performed without engineering experience or qualifications,” it added. Thus, it said he was covered by the award. It then referred the case to further proceedings to determine if there was unfair dismissal.
