It’s what you’re employed to do that counts

Nicholas McMenemy v Thomas Duryea Consulting Pty Ltd [2012] FWAFB 7184 (28 August 2012)

Some employees characterise their status according to what they do, but in some disputes, what counts is the job they were employed to do.

This principle was discussed by a full bench of Fair Work Australia recently when a manager claimed the bulk of his work was actually “hands-on” and therefore he was not excluded from claiming unfair dismissal. But his employer said the manager was not employed to do those tasks and since he was largely unsupervised by the owners, they could not be said to have authorised that work. The full bench agreed, quoting with approval an earlier decision where similar circumstances had arisen. That decision included the following important consideration:

“In determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work ….. with a view to ascertaining the principal purpose for which the employee is employed.”

FWA said “an employee might perform duties (where they are not closely supervised) which the employee prefers, or believes to be required, but which are not the duties the employee is necessarily directed (or employed) to perform.”

This is a reminder to employers that in other cases, such as some overtime claims, employees are not necessarily entitled to benefits or considerations because they are going beyond their remit.