Employment Law – Background on the Unfair Dismissal Claim

In Mr James Kaufman v Jones Lang LaSalle (Vic) Pty Ltd, the Fair Work Commission ruled that a regional director of a multibillion dollar real estate business could purse his unfair dismissal claim despite earning over the high income threshold as his duties indicated he was actually a sales representative under an Award.


In essence:

  • the former capital markets regional director claimed that he was unfairly dismissed when he was made redundant by Jones Lang LaSalle (Vic) Pty Ltd (JLL)
  • JLL made a jurisdictional objection to the application claiming that the employee was not a person protected from unfair dismissal within the meaning of s382 of the Fair Work Act
  • JLL argued the employee was a senior manager with significant leadership, mentoring and business generation responsibilities which went beyond the classifications in the Real Estate Industry Award 2010 (Award)
  • JLL also claimed the employee wasn’t protected from unfair dismissal due to his earnings surpassing the high income threshold

Fair Work Commission Decision

The Fair Work Commission:

  • held that the employee could pursue his unfair dismissal claim despite earning well-over the high income cap as the duties he undertook fell “squarely within the role definition of a property sales representative’ set out in the Award
  • formed this view because the question of Award coverage is determined not by a person’s title, rather “it is the duties performed that will be of significance”
  • noted the employee’s title of “regional director” was merely a “rank or accolade”
  • held the employee’s position in the hierarchy said little about his role “other than that he was a high performing successful employee”
  • disagreed that the employee was a senior manager as there was nothing in his regular duties which could be described as a managerial function and he had no direct reports – whilst he had general leadership expectations, it was found that these would be common amongst “most employers in the real estate industry
  • ultimately, it was held that the “fundamental or principal purpose” for which the employee’s position existed was to sell real estate, which fell under the Award
  • the employee was therefore protected from unfair dismissal

Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • review this Fair Work Commission decision
  • seek the assistance of an employment lawyer to understand the impacts of this Fair Work Commission decision
  • be careful to look at an employee’s duties and not simply their title when deciding if they are covered by an Award
  • ensure compliance with all employment laws including Fair Work Commission decisions, Awards and enterprise agreements
  • understand what employment laws apply at your workplace including Awards and enterprise agreements

The decision is available for you to read through the following hyperlink:

Mr James Kaufman v Jones Lang LaSalle (Vic) Pty Ltd T/A JLL [2017] FWC 2623 (15 May 2017)

More Information

Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team, on 9635-7966 to speak with one of our employment lawyers.