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Employers should be cautious when dismissing employees (even high income earners)!

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Did you know a high earning employee can still make an unfair dismissal application if they are covered by an award or enterprise agreement and meet other eligibility criteria?

Unfair dismissal is when an employee is unreasonably dismissed from their job. If employees think they have been unfairly dismissed they can apply to the Fair Work Commission to have it reviewed. If they are successful you will need to pay them compensation or they can have their role restored. 

Can employees on a high income be unfairly dismissed?

Normally employees on a high income (over $167,500) cannot make an unfair dismissal claim. But if they are covered by a modern award or enterprise agreement they may be able to.

A recent case (Mark Evans v Total Essential Services Group Pty Ltd) involving a high income employee discussed whether he was covered by an award and could make an unfair dismissal application.

To work this out, the Commission looked at what responsibilities he had as an employee.

For example, even though the employees title was a “manager” the Commission found that he did not actually have a managerial role. This is because he did not have any employees reporting to him and his role was more technical, unlike a manager.

This meant that his role fell under a specific classification of an award, so he could make an unfair dismissal application.

Key takeaways

  • High income employees may be able to make an unfair dismissal applications depending on coverage under a certain award or enterprise agreement. Seek legal advice before terminating the employment of any employees.
  • Employees (irrespective of salary) can also make a General Protections claim.
  • If you are considering terminating the employment of a high income employee, you need to consider if they are covered under an award or enterprise agreement. 

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