Employment Law

No unjustified dismissal for managers

Well, at least not in Australia. As we all know, Australia is a little bit bigger and a little bit richer than New Zealand. And when I say ‘a little bit’ I mean little as in 100x times bigger. So it doesn’t come as much of a surprise that Australia also has a lot more collective agreements (Awards) than New Zealand. 

In Michelle Gray v Hamilton James & Bruce Pty Limited [2011] FWA 6884 the “Clerks – Private Sector Award 2010 (Clerks Award)” was at the centre of the dispute. Ms Gray claimed that the Award applied in her case, despite the fact that the Award has an high-income threshold which she clearly exceeded. Her main point, though, was that the Award covered her because she was a ‘clerk’ and not a manager (despite having held the position of General Manager). Not surprisingly, the Court found that she was in fact, as her title said, a manager and not covered by the Award.

Whats interesting about this is not so much the outcome of the case, but the distinction between clerk – manager, which  is similar to the distinction in German Employment Law.  So where does that come from?  Why should a manager be exempt from unjustified dismissal provisions? Because of their higher income? Or is it rather that once you become a manager the line between who is the employer and who is the employee gets blurred?

There is no such distinction in New Zealand Employment Law, where everyone, from factory worker to CEO, is covered by the same pieces of legislation. As far as I can see, no one has ever raised that as an issue, but who knows.


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