[2011] FWA 3763 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David James Hehir
v
Schweitzer Engineering Laboratories Pty Ltd
(U2011/569)
COMMISSIONER CLOGHAN |
PERTH, 27 JUNE 2011 |
Application for unfair dismissal remedy.
[1] On 17 March 2011, Mr David James Hehir (“the Applicant”) made application to Fair Work Australia (FWA) alleging that he was unfairly dismissed from his employment with Schweitzer Engineering Laboratories Pty Ltd (“the Employer”) on 3 March 2011.
[2] Mr Hehir’s application was made pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).
[3] The Employer provided a response to Mr Hehir’s application on 8 April 2011.
[4] At the request of the Employer, the matter was referred to me on 11 April 2011 to hear and determine the Employer’s jurisdictional objection before considering the merits of the application.
[5] Following a conference of the parties on 2 May 2011, the Employer’s jurisdictional objection was essentially reduced to the following question:
Whether Mr Hehir was performing duties covered by a classification in Schedule B - Classification Structure and Definitions of the Professional Employees Award 2010?
[6] As the Applicant’s income exceeds the high income threshold and it is uncontested that no enterprise agreement is applicable, should I determine that the Professional Employees Award 2010 does not cover the Applicant, I will dismiss the application on the grounds that the Applicant is not a person protected from unfair dismissal pursuant to s.382 of the FW Act.
[7] Subject to review, should I determine that the Applicant is covered by the Professional Employees Award 2010, I will proceed to hear and determine the merits of Mr Hehir’s application including whether he was forced to resign.
RELEVANT STATUTORY FRAMEWORK
[8] The FW Act as is relevant to the application, jurisdictional objection and the facts provides as follows.
[9] Pursuant to s.394 of the FW Act, a person who alleges that they have been unfairly dismissed, may apply to FWA for a remedy to that unfair dismissal.
[10] Section 396(b) of the FW Act requires FWA, before considering the merits of an application, to determine if the person was protected from unfair dismissal.
[11] For the purposes of the application, and hearing on 7 June 2011, Mr Hehir is protected from unfair dismissal pursuant to s.382(b)(i) of the FW Act if a modern award covers his employment.
RELEVANT BACKGROUND FACTS
Employment
[12] The Applicant commenced employment with the Employer on 9 February 2009.
[13] The Applicant was employed as a Project Manager.
[14] The employment relationship ceased on 3 March 2011.
[15] At the time the employment relationship ceased, the Applicant’s annual salary was $144,796.10 plus superannuation.
[16] The Applicant conceded that there was no enterprise agreement applicable to his employment with the Employer.
[17] The Applicant reported to Ms Sarah Hughes, Engineering Services Manager-Asia Pacific.
[18] The Applicant states in his written evidence that “based on my understanding and discussion with the employee ombudsman, I believe I am covered under the Modern Award MA00065- Professional Employees Award 2010” 1.
Jo Description
[19] The Applicant and Employer provided two different job descriptions. For the purposes of this Decision, I will adopt the Applicant’s job description as it was provided to him on 17 November 2008 prior to interview.
[20] The preamble to the job description reads as follows:
“Schweitzer Engineering Laboratories (SEL) seeks a professional, innovative and detailed individual for our Project Manager position located in Perth, Australia. If you are looking for an opportunity to utilize your skills in project management for a worldwide company then this may be the position for you!” 2 (my emphasis)
[21] The Responsibilities, Qualifications and Preferred Qualifications contained in the job description are as follows:
Responsibilities:
- Manage projects with the objective of being within the budget, project expenditures, and project schedule commitment.
- Create and maintain project files and project tracking records such as time reporting, financial records, schedules, budgets, and summary spreadsheets.
- Track and report project measures such as project expenditures vs. budget, progress vs. schedule, and quality related measures.
- Maintain project-tracking reports to include financial information and scheduling, as well as engineering materials, installation, commissioning and testing.
- Communicate with the end user to ensure the project is on track and the customer is satisfied with SEL services.
- Communicate with SEL management.
- Manage contractors, subcontractors and suppliers to ensure they deliver the equipment and services within the budget and on time.
- Support Engineering Services with bids and quotations involving systems and turnkey projects.
Qualifications:
- B.S. in Electrical Engineering.
- Minimum three years relevant experience with electrical power systems, practices and philosophies.
- Minimum three years project and project management experience.
- Working knowledge of electrical power systems and protective relay applications.
Preferred Qualifications:
- Experience being a part of projects teams.
- Electrical utility, consulting or system integrator experience.
- Recognized Project Management qualifications.
Professional Employees Award 2010
[22] The Professional Employees Award 2010 commenced on 1 January 2010.
[23] At Clause 4.1 Coverage, the Award provides:
“This award covers employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule B—Classification Structure and Definitions of the award and those employees.”
[24] The relevant classification asserted by the Applicant is B1.11 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.”
[25] A Professional Engineer is defined in Clause 3.2 of the Award as an employee with the requisite qualifications which are necessary to carry out adequately the discharge of any portion of the duties required.
RELEVANT DECISIONS OF THE TRIBUNAL
[26] Mr Hehir referred the Tribunal to Baxter v Anca Pty Ltd U No. 32057 of 2000 Print T4398 (“Baxter”).
[27] The matter at issue between the parties in Baxter, “was whether Mr Baxter’s duties, his role and responsibilities fell within the scope of the definition contained within the Federal award entitled Metal, Engineering and Associated Industries (Professional Engineers and Scientists) Award [Print Q2531]” (at para [4]).
[28] In Baxter, it is important to note that Dr Baxter commenced employment as a Project Manager. After six months, he was redeployed from Project Manager to a management position in a section known as “sustaining products” (para [7]). Consequently, the issue between the parties related to his management position in “sustaining products”, not as a Project Manager.
[29] With respect to the position of Project Manager, the presiding Commissioner came to the finding that Dr Baxter’s evidence, regarding his Project Manager’s was not inconsistent with the Employer’s position which was:
“Whilst the role required engineering technical ability in order to discuss the product with potential customers, the position did not involve the work of a professional engineer but rather involved project management skills which entailed the coordination of a significant amount of commercial and strategic information, the capacity to meet with quite senior management...” (para [6]).
[30] Mr Jackson of Counsel for the Employer referred to Leigh Carpenter v Corona Manufacturing Pty Ltd (PR925731) (“Carpenter”); R Branch v APIR Systems Limited (PR938031) (“Brand”) and Halasagi v George Weston Foods Limited [2010] FWA 6503 (“Halasagi”). The first two decisions being decisions of the Full Bench of the Australian Industrial Relations Commission, and the latter, a decision of Vice President Lawler in this Tribunal.
[31] In Halasagi, Vice President Lawler offered guidance in relation to the meaning of professional engineering duties”. The Vice President referred to the High Court in R v Association of Professional Engineers of Australia; ex parte Victoria (1961) 97 CAR 233 (“Professional Engineers”) and the dilemma which arises as to whether or not an employee is performing “professional engineering duties”, when parts of the duties can be carried out without the specific qualification.
“...It will be seen that these definitions may involve some practical difficulty, not in their application to particular persons but in their application to particular employments. That is, difficulty could rarely arise in determining whether a man possesses the qualifications of a professional engineer but it may more often be difficult to say whether in the case of a particular employment the adequate discharge of some portion of the duties involved does or does not require the qualifications stated. It was explained at the bar that this difficulty arose from the fact that engineers tend to drift into purely administrative positions as they get higher in their profession and that it was desired to cover persons who still need an engineering qualification in the course of or in spite of their ascent of the administrative ladder.” (para [15])
[32] Vice President Lawler acknowledged that the dilemma in Professional Engineers has become more acute since the High Court decision and proceeds on the basis that the question of whether an employee is to be covered by the Modern Award, requires a two factor approach. The first factor is whether, to adequately perform the duties required, the employee must possess a relevant qualification. In this respect, if the advertisement for the position requires a relevant qualification, this, of itself, is evidence that the position involved “professional engineering duties”.
[33] The second factor is whether an employee, in this case Mr Hehir, is carrying out professional engineering duties and employed in a classification in the award.
[34] To determine whether an employee is employed in a classification in the Modern Award, it is necessary to apply the “principal purpose” test. The “principal purpose” test can be addressed by determining what was the most important intention of the employer in requiring the functions of the position to be carried out by the employee. In answering such a question, it is appropriate to examine the job description, the nature of the work performed and any relevant circumstances surrounding the performance of the duties by the employee. By their nature, job descriptions cannot detail all the functions of a position. Further, time spent on tasks, functions and responsibilities evolve as people, business, systems and technologies come together. While such factors may change the duties and responsibilities, the principal purpose of the position generally retains steadiness.
[35] While Mr Jackson referred to other decisions, their content was supportive of the analysis adopted by Vice President Lawler in Halasagi and the use of the “principal purpose” test.
CONSIDERATION
[36] To summarise, the Employer is charged with the onus in these proceedings to demonstrate that:
[37] Consequently, for Mr Hehir to have the merits of his application considered by the Tribunal, it is necessary for the Employer to fail in both objections above in paragraph [36]. Should the Employer succeed in any one of the above objections, Mr Hehir is not covered by the Professional Employees Award 2010, and accordingly, is not protected from unfair dismissal.
Was Mr Hehir performing professional engineering duties?
[38] I intend to adopt the view that the email from Ms Hughes on 17 November 2008, where Mr Hehir was invited to an interview for the position of Project Manager, was equivalent to an advertisement for the position. The email attached a job description.
[39] The job description infers, because it is not stated, that a Bachelor of Science in Electrical Engineering with a minimum of three (3) years relevant experience with electrical power systems, practices and philosophies is required. As a consequence, in adopting the approach of Vice President Lawler in Halasagi, this requirement is, and of itself, prima facie evidence that the position involved professional engineering duties for any person who held that qualification [para 23], I am satisfied that Mr Hehir was involved in professional engineering duties and the Employer’s jurisdictional objection in this regard fails.
[40] I now turn to whether Mr Hehir was employed as a Level 4 - Professional (Engineer).
Was Mr Hehir employed and carrying out his required duties consistent with classification of Level 4 Professional (Engineer)?
[41] Similar to addressing the previous factor, I intend to start with the job description provided to Mr Hehir at his interview.
[42] The Job Description is for the position of Project Manager. It was uncontested that Mr Hehir had to manage projects.
[43] The Australian Concise Oxford Dictionary defines “manager” as a person controlling activities. To “manage”, is to organise and regulate to achieve one’s aim. A manager, in a collective sense, is generally one of a group of people who administer and direct the affairs of a business.
[44] The primary function of a manager is to coordinate the various relevant individuals/groups, systems, customers and resources in a business. In this case, a Project Manager facilitates and oversees the components mentioned in the preceding sentence, to achieve successful completion of a project.
[45] The preamble contained within the Job Description seeks a person who is looking for an opportunity to utilize their skills in project management 3.
[46] The responsibilities contained within the Job Description are those which would be found in a manager’s position such as ensuring the projects are on time, within budget and meet customer standards or expectation. The particular responsibilities of Mr Hehir’s position go to managing and maintaining:
as well as:
[47] While it may appear that the role is passive, project management is proactive coordination, cooperation and communication to achieve a particular aim.
[48] In contrast the Level 4 - Professional Engineer in the Award emphasises the performance of professional engineering work which demands independence of approach, originality, ingenuity and judgement in a technical sense. In my view, these duties are significantly different to those expected in an administrative position.
[49] The Level 4 - Professional Engineer is expected to be a person who:
[50] I propose to start consideration of whether Mr Hehir was carrying out the duties of a Level 4 Professional (Engineer) classification in the Professional Employees Award 2010 with the last question and answer in the Applicant’s cross examination.
“MR JACKSON: I will just put this to you, Mr Hehir. The proposition is that this was a job the principal purpose of which was to manage projects and that whilst an engineering background, experience, qualifications were all very useful, it was a job that required you to move off the professional tools as an engineer and into project management. What I put to you is that that is the case, but that you wanted it to be something else, an engineering role, that's what's happened and ended up in this Tribunal, what do you say to that?---I refute that, Mr Jackson.” 4
[51] In contrast to this question and answer, I turn to Mr Hehir’s Application for Employment where he states, as his reasons for considering leaving his then current employment.
“Opportunity to expand my engineering knowledge with SEL.” 5
[52] In my view, the circumstance surrounding this application for unfair dismissal can be traced to Mr Hehir’s desires and expectations on being employed by the Employer. Mr Hehir’s reason for leaving his former employer should have been a forewarning of things to come.
[53] I am satisfied that the Employer anticipated and expected that the Project Manager’s position would be carried out in a particular way. However, that expectation was hindered for structural reasons, time zones, the “unavailability” of his immediate superior (Ms Hughes), convenience, meeting customer needs and Mr Hehir’s working relationship with others. These factors, in my view, led and assisted Mr Hehir to fulfil his desires to expand his engineering knowledge; this situation led to tension between Mr Hehir and his direct superior, Ms Hughes.
[54] Mr Hehir gave evidence:
“At the time Ms Hughes and I discussed what the nature of the role was and we discussed that the role was primarily a title project manager but had some responsibilities of a technical nature” 6 (my emphasis)
[55] Mr Hehir described some of his duties as a “support engineer”, on the sales side of the Employer’s business 7 - bids and quotations. That evidence is not disputed as it is contained in Mr Hehir’s job description.
[56] Mr Hehir was required by his Employer to provide project “status updates”. The Applicant provided me with examples from November 2010 to February 2011. In the words of Mr Hehir, they are a “summary of the major activities I guess I took during the day” 8.
[57] Mr Hehir’s evidence regarding these “status updates” was as follows:
“...there are a number of what I would call typical project management tasks in here, but there is also quite a few technical activities in this document where I needed to use my engineering skills and some of those were liaising with the customers, some of those were preparing technical variations and submitting those to Ms Hughes for her review.” 9
[58] With very few exceptions, Mr Hehir’s status report related to project AU1023. The evidence contained in the status reports illustrates that, with few exceptions, these duties were what would be expected of a Project Manager and express clearly that his duties did not encompass the providing of professional engineering services. In my view, there is a distinction between carrying out the duties of a professional engineer, and a professional engineer using their knowledge, skills and experience in carrying out the roles and duties of another position, where that knowledge, skills and experience is of assistance. Despite this situation, Mr Hehir gave examples of why it was not possible or practical for the lead engineer to respond to customer needs and he would “attend meetings and have discussions” 10.
[59] Should there be any confusion, the fact that a person with an engineering qualification, knowledge, skills and experience is employed does not make the classification of their position, a professional engineer. The classification of a position is determined by the duties to be performed and the purpose of those duties performed. It is not the person (and their attributes) that denotes or designates the position nomenclature, but the duties required to be performed, and for what purpose, by the employer.
[60] The confusion or tension that sometimes arises between what the employer requires of the employee and what the employee seeks to do in their employment, is not unusual and requires management. From the evidence, this situation arose approximately 12 months after Mr Hehir commenced employment.
[61] In December 2009, Mr Hehir sent an email to Ms Hughes concerning his communication with the project engineers. Ms Hughes response, as is relevant to this application, is as follows:
“...The fact that you bring this up highlights to me that you still misunderstand your role. As the project manager you are responsible to me for the delivery of the project on time and on budget. The engineers are responsible to me for the technical delivery of the project...” 11.
[62] At his annual performance review, Mr Hehir was asked to give more focus and pay more attention to project management. Mr Hehir was asked to cease reviewing technical documents as the projects have lead engineers. In summary, Mr Hehir had responsibility for the “management of the project not for the technical” and the “lead engineer has full technical authority, not you”. 12
[63] Shortly after his annual performance review, Mr Hehir sent an email to persons, which included the Senior Engineer and copy to Ms Hughes, in which he addresses an issue from a project management perspective. In the email, Mr Hehir states:
“Whilst my role is not technical, I do have a role to ensure that we meet the customers’ expectations and ensure that we keep this project on track when it comes to cost, schedule, risk etc. My main areas when it comes to the technical aspects of this project are to ensure that scope is managed, risks are mitigated/controlled, quality is achieved etc.” 13
[64] Over the following 12 months further tension existed between the Employer and Mr Hehir and Ms Hughes made it clear to the Applicant the parameters of his employment position. These events culminated in Mr Hehir alleging that he was forced to resign on 3 March 2011.
[65] In conclusion, the burden on this jurisdictional objection lies with the Employer to demonstrate that Mr Hehir was not employed in classification B1.11 Level 4 - Professional, in Schedule B - Classification, Structure and Definitions of the Professional Employees Award 2010.
[66] The evidence given at the hearing was that the position was that of a Project Manager which had a role and responsibilities expected of such a managerial position and not one of a professional engineer.
[67] I am satisfied that Mr Hehir used his electrical engineering knowledge and experience to assist him in the performance of his role and responsibilities. Further, I find, in view of the evidence, that Mr Hehir’s electrical engineering qualifications, knowledge and experience were not required in the discharge of the duties of the position.
[68] I am satisfied that, in view of the fact that this was a newly created position, if more care and attention had been given to the job description, it would have indicated that an engineering qualification was not essential or even desirable, but considered beneficial to any applicant in a competitive selection process. However, such a qualification would have to be balanced against other applicants with extensive project management experience.
[69] I am satisfied, applying the “principal purpose” test that the position occupied by Mr Hehir did not, or was not, intended by the Employer to encompass the role and responsibilities described as expected of a professional engineer in the Professional Employees Award 2010.
[70] I also find that, at various times throughout his employment, the Employer took positive steps to moderate Mr Hehir’s action where he strayed beyond his role and responsibilities as a Project Manager.
[71] For the above reasons, I find that Mr Hehir’s employment was not covered by the Professional Employees Award 2010. Accordingly, none of the provisions in s.382(b) of the FW Act apply to Mr Hehir. Consequently, Mr Hehir is not protected from the unfair dismissal provisions of the FW Act and his application must be and is dismissed. An Order will be issued to this effect.
COMMISSIONER
Appearances:
Mr Hehir, the Applicant.
Mr Jackson with Ms Fitch of Maddocks for the Respondent.
Hearing details:
2011:
Perth:
7 June.
1 Exhibit A1(9)
2 Exhibit A1(4)
3 Exhibit A1-4
4 PN 181
5 Exhibit A1(6)
6 PN 48
7 PN 51
8 PN 59
9 PN 59
10 PN 65
11 Exhibit R1(8)
12 Exhibit R1-(12)
13 Exhibit R1(9)
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