Afsar Riazati v Interactive Media Solutions Pty Ltd

[2014] FWC 8995

[2014] FWC 8995

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Afsar Riazati
v
Interactive Media Solutions Pty Ltd
(U2014/7425)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 12 DECEMBER 2014

Application for relief from unfair dismissal - genuine redundancy - application dismissed.

[1] On 21 May 2014 Ms Afsar Riazati (the Applicant) filed an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by Interactive Media Solutions (IMS - the Respondent) on 20 May 2014 was harsh, unjust or unreasonable.

[2] The Respondent raised a jurisdictional objection to the application on the basis that the Applicant’s employment was terminated as a result of genuine redundancy as defined in s.389 of the Act.

[3] Ms Riazati represented herself, while Ms Anna Richards appeared with permission for the Respondent.

[4] The Applicant gave evidence. Mr John Bigelow, Director and Editor at IMS; Ms Emma Stanley, Operations Manager at IMS; Mr Stanley Asenberger, Publication Manager at IMS; and Mr Scott Patterson, Assistant Editor at IMS, gave evidence for the Respondent.

[5] For the reasons set out below, I have found that Ms Riazati’s dismissal was a genuine redundancy. Her application is therefore dismissed.

Background

[6] Ms Riazati commenced her employment with IMS on 19 February 2013. It was not disputed that Ms Riazati was protected from unfair dismissal at the time of her dismissal.

[7] IMS is a small business which publishes a number of magazines.

[8] Ms Riazati was engaged to sell advertising in three magazines published by IMS - Australian Business Solutions (ABS magazine), Education Technology Solutions (ETS magazine) and Security Solutions. Responsibility for the Security Solutions magazine was given to Mr Asenberger who was engaged by IMS several months after Ms Riazati commenced with IMS. Publication of the ABS magazine ceased in early 2014.

[9] Mr Bigelow and Ms Riazati met on 5 and 12 May 2014 to discuss a possible response to the decline in interest among clients in traditional print advertising. Issues discussed included a shift to more video production as part of a greater digital focus for the ETS magazine as well as Ms Riazati taking on an editorial role. As part of the latter process, Ms Riazati was asked to prepare a written piece to in essence show what she could do in this regard. However, the piece was not well received by Mr Bigelow and Ms Stanley who felt that it fell well short of the standard expected and that significant training would be needed to develop Ms Riazati’s writing skills to bring them up to the necessary standard.

[10] Against that background, it was decided to terminate Ms Riazati’s employment on the basis of redundancy. No other positions were made redundant.

[11] Mr Patterson was engaged by IMS shortly after Ms Riazati’s dismissal. His duties include, among others, responsibility for advertising sales for the ETS magazine.

[12] In its submissions IMS raised a number of issues which went to Ms Riazati’s performance, in particular her interaction with clients. However, under cross examination Mr Bigelow acknowledged that Ms Riazati’s performance was not in question 1 and that ultimately the issues raised about Ms Riazati’s interaction with clients were not a factor in her dismissal2. In other words, those performance issues were not pressed at the hearing. Accordingly, as I indicated at the hearing3, no weight has been attached to these issues in determining the application. For this reason, these performance issues are not canvassed in this decision.

The submissions of the Applicant

[13] Ms Riazati submitted that her dismissal was not a genuine redundancy as her sales role was being undertaken by Mr Patterson and that he is “doing exactly what I did” 4. Ms Riazati further submitted that there was no consultation, with her dismissal being on the spot, and that she was not provided with any training. This is despite her indicating a willingness to undertake writing classes or courses in video production.

[14] Ms Riazati acknowledges that she met with Mr Bigelow on 5 and 12 May 2014 and that at the first of those meetings Mr Bigelow had raised the possibility of her assisting him with editorial activities associated with the ETS magazine and selling video production. Ms Riazati further submitted that at the meeting she indicated that she was not a writer and did not have the knowledge/skills to undertake video production. However, Ms Riazati did submit that she indicated a willingness to undertake training in either area. Ms Riazati also submitted that at the 5 May 2014 meeting she asked Mr Bigelow “where we are going with all of this?” to which he responded “there is nothing wrong.” 5

[15] At the 12 May 2014 meeting, Ms Riazati submits that while she agreed to prepare a written company profile she indicated to Mr Bigelow and Ms Stanley that it would be “copied and pasted” as she never claimed to be a great writer and that she was “not the best in written English.” 6 Ms Riazati also submits that Mr Bigelow agreed to this and that she requested additional time to prepare the profile as she “was falling behind in making budget” in terms of sales.

[16] As to the dismissal meeting on 20 May 2014, Ms Riazati describes it as very short and disputes that she was not hostile, though she does acknowledge that she called Mr Bigelow a liar. Ms Riazati submits that, in response to a question from her, Mr Bigelow described the new position as Sales/Editorial.

[17] As to remedy, Ms Riazati sought compensation for loss of income and pain and suffering. She also alleged that she had not been paid all of the sales commission owing to her and sought reimbursement for the use of her laptop computer, her mobile phone bills and the return of an iPad which she contended had been given to her by Mr Bigelow but had not been returned after he borrowed it when travelling to the USA.

The Applicant’s evidence

[18] In her witness statement 7, Ms Riazati largely reiterated the issues canvassed in her submission and cited the email exchange between her and Mr Bigelow regarding the written company profile she agreed to prepare at the 12 May 2014 meeting (this will be discussed further below). Among other things, Ms Riazati attested that her dismissal was a “total shock” and that she had no idea that she would be made redundant.

[19] Under cross examination Ms Riazati stated that the discussion at the 5 May 2014 meeting was about moving to a greater digital focus for the ETS magazine. In this regard she further stated that while IMS “was losing a few clients here and there ... print was very much alive.” 8 Ms Riazati also stated that at the meeting she indicated she was willing to assist with editorial but pointed out that she was not a writer9.

[20] With regard to the 12 May 2014 meeting, Ms Riazati stated that the issue of her assisting with editorial content was again discussed and she reiterated that she was willing to help out. Ms Riazati also stated that she indicated at the meeting that she had worked with the editor in her previous job, though her editorial responsibilities were limited to proof reading. As to the written company profile exercise, Ms Riazati reiterated that she agreed to prepare a profile but that she indicated that it was going to be “copy and pasted.” 10 Ms Riazati also conceded that copying and pasting was “probably not” of a sufficient standard from someone required to do editorial work11.

The submissions of the Respondent

[21] IMS submitted that in early May 2014 its workload had changed as a result of a number of factors, including concerns about a lack of response from clients regarding offers of traditional forms of print media advertising. Against that background, IMS considered redistributing Ms Riazati’s sales duties and combining them with other duties. The impact of this would have been a reduction in Ms Riazati’s focus on sales replaced by a focus on writing content for the ETS magazine.

[22] IMS further submitted that Mr Bigelow met with Ms Riazati on 5 and 9 [sic 12] May 2014 to explain what was contemplated as a response to IMS’s changed workload and to canvass her interest in undertaking editorial work. IMS submits that in those discussions Mr Bigelow made it clear that no decision had been taken regarding the changes being contemplated. IMS does not dispute that in those discussions Ms Riazati indicated a willingness to undertake training in respect of editorial work. At the 12 May meeting, Ms Riazati agreed to prepare a 400-600 word company profile of IMS.

[23] IMS submitted that the company profile provided by Ms Riazati was of a very poor standard and was obviously cut and pasted from various sources. As a result, it became apparent that without extensive training Ms Riazati would be unlikely to successfully perform editorial duties. Further, given IMS’s limited financial resources and its small size, it was not feasible to employ Ms Riazati in her sales role alone 12.

[24] Ms Riazati was dismissed on 20 May 2014 due to redundancy.

[25] As to Ms Riazati’s unfair dismissal application, IMS submitted that it had consulted Ms Riazati and had considered both redeployment opportunities and her ability to perform an altered role before deciding to make her redundant. As such, the dismissal was a genuine redundancy and Ms Riazati’s application was a nullity and could not proceed.

[26] In its submissions, IMS also indicated that Ms Riazati’s duties had been redistributed to Mr Patterson. More particularly, IMS submitted that Mr Paterson’s responsibilities also involved editorial duties, including working with clients to write editorial content, development of the digital growth of the publication, the development and implementation of social media strategies for current clients, current client management and new business development. IMS submitted that no one has been hired to replace Ms Riazati and that Mr Patterson’s role is totally different to Ms Riazati’s previous sales only role.

The Respondent’s evidence

[27] Mr Bigelow, Ms Stanley, Mr Asenberger and Mr Patterson all provided witness statements. One common feature of their evidence was that they all described Mr Patterson’s role in virtually identical terms to the description set out in IMS’s submission (see paragraph [26] above).

[28] In his witness statement 13 Mr Bigelow set out the changed workload of IMS as per the Respondent’s submissions (see paragraph [21] above). Mr Bigelow attested that the 5 May 2014 meeting with Ms Riazati canvassed a number of issues, including a greater focus on video production. Mr Bigelow stated at the meeting he indicated to Ms Riazati that no decision had been made regarding any possible change within the organisation and that he was merely discussing options and seeking feedback at that stage.

[29] As to the 12 May 2014 meeting, Mr Bigelow attested that Ms Riazati had, inter alia, expressed an interest in doing some editorial work and a willingness to undertake training. He further attested that at the meeting he asked Ms Riazati to prepare a written company profile on IMS which he subsequently received on 16 May 2014. Mr Bigelow stated that having reviewed the profile, both he and Ms Stanley formed the view that Ms Riazati lacked the capacity to perform some of the editorial duties involved in the new sales/editorial position. This in turn, Mr Bigelow stated, saw them both enquire as to cost of and time involved in having Ms Riazati trained to the necessary level to discharge those duties. As a result, he attested that he formed the view that IMS did not have the resources to train Ms Riazati to the required level and employ someone to undertake her duties in the interim.

[30] In respect of Ms Riazati’s laptop computer, Mr Bigelow attested that IMS had provided Ms Riazati, who worked from home by mutual agreement, with a desktop computer. However, this was later removed as Ms Riazati preferred to use her laptop computer. Mr Bigelow also stated that at no stage was there any discussion regarding the Respondent’s responsibility in respect of any damage to the laptop computer as a result of it being used for work purposes.

[31] Mr Bigelow reiterated much of the above under cross examination. Beyond that under cross examination Mr Bigelow:

(a) stated that he did not indicate to Ms Riazati at either the 5 or 12 May 2014 meeting that there was a possibility that she would be made redundant or dismissed because at that stage he had not considered redundancy or dismissal as necessary 14;

(b) characterised the discussion with Ms Riazati on 12 May 2014 as effectively indicating that her role was to be restructured 15;

(c) disputed that there had been any discussion by Ms Riazati regarding cutting and pasting in respect of the written company profile exercise, adding that cutting and pasting is not an applicable editorial standard 16;

(d) stated that in respect of possible training for Ms Riazati, the question for IMS was not whether Ms Riazati was willing to undertake the training but rather whether IMS could accommodate the time needed for Ms Riazati to complete the training (the time needed was between 12 months and 2 years) and whether it had the financial resources to pay for that training (the estimated cost was between $5,000 and $10,000) 17;

(e) further stated that he did not consider the training option as viable and that what IMS really needed was someone who could bring the required skills to the role 18;

(f) responded that he did not provide Ms Riazati with any feedback on the written company profile she had submitted 19;

(g) stated that on the basis of a number of conversations with Ms Riazati he considered that IMS had met its consultation obligations 20;

(h) indicated that based on those discussions with Ms Riazati he came to the conclusion that there was no longer a need for a sales only based role and that the scope of the new role was beyond Ms Riazati which in turn led him to decide to make Ms Riazati’s position redundant 21;

(i) disputed that he had given an iPad to Ms Riazati 22;

(j) described his discussions with Ms Riazati as being directed at finding a way to restructure Ms Riazati’s role to make it viable 23; and

(k) confirmed that in late 2013 he had canvassed with Ms Riazati the possibility of Mr Patterson coming to work for IMS, though he had not spoken to Mr Patterson at that stage about that possibility 24.

[32] Ms Stanley attested that in early May 2014 Mr Bigelow had informed her that he was considering redistributing Ms Riazati’s sales duties and combining them with other duties, including those of an editorial focus. Ms Stanley described the practical effect of such changes as reducing Ms Riazati’s sales duties counterbalanced by her being required to prepare written content for the print and digital versions of the ETS magazine. Ms Stanley also attested that she attended the 12 May 2014 meeting between Ms Riazati and Mr Bigelow where he explained to Ms Riazati what he was considering and canvassed Ms Riazati’s interest in undertaking some editorial work in lieu of some of her sales duties. Ms Stanley’s evidence regarding Ms Riazati’s response is consistent with the Applicant’s evidence in this regard.

[33] As to the written company profile exercise, Ms Stanley attested that on receiving the profile from Ms Riazati, both she and Mr Bigelow formed the view that Ms Riazati lacked the capacity to perform some of the editorial duties involved in the new sales/editorial position. As a result, she then assisted Mr Bigelow in making enquiries as to the cost of and the time involved in having Ms Riazati trained to the necessary level to discharge those duties. Those enquiries, Ms Stanley stated, led both her and Mr Bigelow to form the view that IMS did not have the resources to train Ms Riazati to the required level and employ someone to undertake her duties in the interim. 25

[34] Under cross examination Ms Stanley:

(a) confirmed that at the 12 May 2014 meeting Ms Riazati expressed an interest in doing some editorial work, though she also indicated that she would require a lot of guidance in performing editorial work, and that she would be willing to undertake some training to that end 26;

(b) stated that Mr Bigelow was best placed to provide that guidance but that this would defeat the purpose of taking some of his editorial responsibilities off him to free up his time to pursue more video production work 27;

(c) with regard to the written company profile exercise, disputed that Ms Riazati had said she would need to cut and paste material to prepare the profile 28;

(d) stated that IMS did try to look at every opportunity it could to fit Ms Riazati into the new role 29;

(e) disputed that Ms Riazati had indicated that she was willing to undertake night classes, adding that Ms Riazati’s level of English and grammar would require a course which would take some time to complete and at a cost which was prohibitive for IMS 30;

(f) stated that at the 20 May 2014 meeting Mr Bigelow pointed out to Ms Riazati the grammatical problems with the profile she had prepared and that it was clearly copy and pasted and that unfortunately her role needed to be made redundant 31;

(g) disputed that Ms Riazati had indicated she was willing to undertake courses for video production, later adding that had she known Ms Riazati was open to evening courses it would have changed the nature of the courses IMS would have explored for Ms Riazati 32;

(h) responded that redundancy had not been discussed with Ms Riazati at any meeting with her 33; and

(i) stated that the sales duties performed by Ms Riazati continue to be undertaken 34.

[35] Mr Asenberger stated that Mr Riazati’s duties, which comprised mostly sales duties, had been redistributed to Mr Patterson and that no person had been hired to replace Ms Riazati. Mr Asenberger also attested that most IMS employees are provided with an iPad for business purposes and that it was his understanding, and that of all other employees except Ms Riazati, that the iPad remained the property of IMS. 35 Mr Asenberger’s evidence under cross examination largely saw him reiterate the comments in his witness statement regarding the ownership of iPads, though he did acknowledge he was not present when Mr Bigelow provided an iPad to Ms Riazati36.

[36] Mr Patterson attested that he had been employed by IMS as an Assistant Editor since 26 May 2014. Mr Patterson further attested that his duties were to work with Mr Bigelow to develop an editorial strategy and direction for the publications produced by IMS, to work with clients to write editorial content, to develop the digital growth of the ETS magazine, to manage current clients and develop new business, to develop and implement social media strategies for clients and the ETS magazine, and to sell advertising for the ETS magazine. Mr Patterson further attested that he had been provided with a laptop computer to undertake his role and that it was his “very clear understanding” that it and any other equipment provided by IMS to enable him to perform his duties remained the property of IMS. 37

[37] Under cross examination, Mr Patterson stated among other things that:

(a) Mr Bigelow had only canvassed with him the possibility of him joining IMS a maximum of three days before he commenced with IMS on 26 May 2014 38; and

(b) with regard to the ETS magazine, he was creating a new income stream, an e-newsletter 39, and managed all sales for the publication40.

The statutory framework

[38] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Ms Riazati is a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385, 387 and 389 which read as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWC considers relevant.

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”

[39] There is no dispute that Ms Riazati was dismissed, so s.385(a) of the Act is satisfied. IMS contends that the dismissal is a case of genuine redundancy, so s.385(d) applies. Ms Riazati contends that her dismissal was harsh, unjust or unreasonable, so s.385(b) is relevant. However, as observed by a Full Bench of Fair Work Australia in Ulan Coal Mines Ltd v Honeysett, Murray v Ulan Coal Mines Ltd (Ulan) 41:

“An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application.”

[40] In other words, s.385(b) only needs to be considered in circumstances where the dismissal is not found to be a genuine redundancy. Finally, while IMS is a small business, it did not rely on that ground in its submissions, so s.385(c) is not relevant.

Was the dismissal a genuine redundancy?

[41] Section 389 deals with the meaning of genuine redundancy. I will deal with each of the factors set out in s.389 separately.

The employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise [s.389(1)(a)]

[42] In Ulan Coal Mines Ltd v Howarth (Howarth) 42another Full Bench of Fair Work Australia when considering the issue of a person’s job no longer being required to be performed cited the following:

“[17] ... As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.” [Underlining added]

[43] In this case it is not disputed that Ms Riazati was employed to undertake sales and that at the time of her dismissal she was responsible for selling advertising for the ETS magazine.

[44] Further, Mr Bigelow’s and Ms Stanley’s evidence was that in early May 2014 IMS’s workload had changed, with the change necessitating a greater focus on video production as part of a shift from print based publications to digital publications. It is not disputed that to enable this to happen, IMS initiated discussions with Ms Riazati to explore her willingness and capacity to undertake a new role which involved both sales and editorial activities.

[45] Together these factors support a finding that the nature of the role required by IMS had changed and that what was required went beyond purely a sales role.

[46] Ms Riazati also contended that the duties she performed were now being performed by Mr Patterson. It is not disputed that Mr Patterson’s duties include sales for the ETS magazine. However, when one looks closely at Mr Patterson’s duties as Assistant Editor they are undoubtedly broader than those performed by Ms Riazati in her sales only role. Key differences are the editorial, digital and the social media components of his role. This supports a finding that Mr Patterson’s role is distinctly different from that performed by Ms Riazati. In other words, following the approach outlined above in Howarth, once the new role was created it is apparent there is “no longer any function or duty to be performed” by Ms Riazati.

[47] Drawing on all of these factors, I find that the Ms Riazati’s dismissal was as a result of changes in the operational requirements of IMS which necessitated the creation of a new role which went beyond sales and which included editorial responsibilities such as the drafting of content both with and for clients. This meant that IMS no longer required Ms Riazati’s job to be performed by anyone because of those changes in the operational requirements.

The employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy [s.389(1)(b)]

[48] The relevant underpinning modern award is the Commercial Sales Award 2010 43 (the Award). The relevant aspects of the Award’s consultation clause are as follows:

“8.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.

8.2 Consultation about changes to rosters or hours of work

(a) ... ”

[49] Under cross examination Mr Bigelow stated that on the basis of a number of conversations with Ms Riazati he considered that IMS had met its consultation obligations (see paragraph [31(g)] above).

[50] The nature of the changes being contemplated by IMS and the reasons for those changes were set out in an email sent by Mr Bigelow to Ms Riazati on 16 May 2014 after he had received the written company profile prepared by her. The email was included in both Ms Riazati’s and Mr Bigelow’s witness statement and is set out in full below.

“Hi Afsar, 

Thanks for sending through the profile. I will go over it and we can talk about it in our meeting on Tuesday morning.

Further to your email of earlier this week. I understand that you were initially employed in a purely sales role. However, I think it is important to understand that roles often evolve in response to changes in the industry. As I have explained, we are a small business and in order to remain competitive, I believe that we need to diversify our income beyond sales on the two publications as, at the moment, any small disruption to the advertising sales on either of those magazines could have a significant impact on the business. To that end, and as I have explained, I have decided to pursue more video work. I believe there is a very strong business case for this move based on past client interest and have decided that this is what we need to do in order to be competitive moving forward.

As discussed, in order to facilitate this change, given that we are a small team, it will be necessary for the sales role on ETS to also become actively involved in various parts of the editorial process, specifically the parts of editorial process that relate to our clients. I believe this to be the most logical and nature extension of the sales role as it is the sales person has the best understanding of what the client wants, and what the client’s company does and the products the client offers. However, simply following a client up to ask if he or she has submitted an editorial piece is not enough. As you are aware, often client’s lack the ability to draft their own editorial and, therefore, rely on our help. Quite often, the very sale itself depends on our ability to help the client draft editorial, which can also mean (and often does mean) writing the editorial, from scratch, on the client’s behalf.

Given that we are a small organisation with limited resources, if we are going to incorporate video into our services in an effort to ensure our viability moving forward, then the need for the ETS sales position to liaise with clients about editorial, collect editorial from clients and write editorial on behalf of clients as necessary, is of crucial importance to our future viability.

Regards,” 44

[51] The above email, together with the discussions with Ms Riazati on 5 and 12 May 2014, in my view is consistent with the spirit and elements of the letter of the consultation provision of the Award.

[52] On the other hand, both Mr Bigelow and Ms Stanley conceded under cross examination that Ms Riazati was never informed of the possibility that her position may be made redundant prior to her dismissal on 20 May 2014. Mr Bigelow’s evidence was that this was because it was only after he reviewed the company profile submitted by Ms Riazati on 16 May 2014 that he formed the view that Ms Riazati lacked the capacity to discharge some of the editorial duties of the new position of sales/editorial. Of note also is Mr Bigelow’s evidence which described his discussions with Ms Riazati as being directed at finding a way to restructure Ms Riazati’s role to make it viable (see paragraph [31(j)] above).

[53] Further, it needs to be acknowledged that IMS did go to some effort to enquire about potential training courses which would be required to bring Ms Riazati’s writing skills up to the necessary standard. Mr Bigelow’s and Ms Stanley’s evidence was that the cost and time involved in the courses was prohibitive for IMS. However, the weight that can be attached to IMS’s efforts in identifying potential training courses is diminished by the fact that it never canvassed the details of those courses directly with Ms Riazati prior to her dismissal.

[54] As noted by the Commissioner Smith as he then was in CPSU, the Community and Public Sector Union and Vodafone Network Pty Ltd (Vodafone) 45:

“[25] ... Consultation is not perfunctory advice on what is about to happen. This is common misconception. Consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker.”

[55] Further, as noted by Vice President Watson at paragraph [19] in Maswan v Escada Textilvertrieb t/a ESCADA (Escada) 46:

“The requirement to discuss proposed changes and consult about the changes has been held to require meaningful consultation and not merely an afterthought. Consultation after an irrevocable decision has been made has been held to not amount to meaningful consultation.” (References not included)

[56] Drawing on Vodafone and Escada, and while acknowledging that there were some gaps in the consultation undertaken by IMS, the evidence in this case supports a finding that there was meaningful consultation with Ms Riazati and that it occurred before IMS had made an irrevocable decision. That is reinforced by Mr Bigelow’s evidence describing the discussions with Ms Riazati as being directed at finding a way to restructure her role to make it viable.

[57] Against that background, on balance, I find that IMS has complied with its consultation obligations under the Award and that mentioning the possibility of redundancy is unlikely to have avoided Ms Riazati’s dismissal.

Would it have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer? [s.389(2)]

[58] In Ulan the Full Bench observed when discussing the issue of redeployment that:

“[34] ... Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining.” 47 [Underlining added]

[59] In this case it is not disputed that Ms Riazati was willing to undertake training to develop the skills needed to undertake this broader role. In fact Ms Riazati conceded that as English is not her first language, her written English is not the best. Also relevant to this issue is Mr Bigelow’s and Ms Stanley’s evidence that upon reviewing the company profile submitted by Ms Riazati they both came to the view that she lacked the capacity to perform some of the editorial duties involved in the new sales/editorial position. In short, using the language in Ulan, their assessment was that Ms Riazati did not have the skills to perform the new role to the required standard immediately. This conclusion in turn led them to explore potential training courses to bring Ms Riazati’s writing skills up to the necessary standard.

[60] The following extract from the transcript is also relevant to the issue of redeployment:

“MR BIGELOW: … clearly it seems to have been a failing of communication here that you don’t seem to understand my intent all the way through this was to try and find a role in which I could keep you gainfully employed in the company. This was not some deliberate witch-hunt to try and run you out of town. I’ve never disputed for a second that your performance was in question. I was trying to find a way that I could actually create a role that would allow you to stay within Interactive Media Solutions. It’s then being twisted into some sort of preconceived witch-hunt in which I was trying to drive you out of town. That’s just not the case. I wouldn’t have asked you to write the essay, I wouldn’t have spoken to various different universities, I wouldn’t have looked at training options, I wouldn’t have had the discussions with you if the intend was to just sever the ties. You had given me that out option. On a number of occasions you’d said, “If you want me to go, just let me go and I’ll go.” I was of the understanding that that was the case. The intent was to try and find a way that we could restructure the role that would make it viable.

---Yes, you did say that you would be happy to engage in training, and I went to great lengths to try and find training that I felt would be applicable and suitable. There comes a point though in any small business where you have to look at the balance of probability and say the market is changing right now substantially. You were feeling it in the impact of your sales campaigns. You were saying we were getting less and less interest in print media advertising and you, by your own admission, felt we needed to move more in the direction of digital content. In an effort to try and make that a viable option, I felt that we needed to include more editorial duties in one of the roles, that being sales. To then put someone into a cert 4 course, which I believed on all reasonable grounds was the minimum requirement which would take 12 months full-time, two years part-time at a minimum, just wasn’t financially viable for a small business of five people. We needed someone within the next month to six months that could do it there and then. Had we had two years, knock yourself out, would have been happy to put you into the training. It then became a financial decision of: well, do I have between $5000 and $10,000 spare? I don’t. We’re a small business. We might have been able to find a way to come up with the money but it was a combination of time and financial restraints just made it untenable. It’s not personal.” 48

[61] A key point which emerges from the above extract is the significant cost of training and time involved before Ms Riazati would attain the required standard. In short, Mr Bigelow’s and Ms Stanley’s evidence was that these factors made the training option prohibitive. Again drawing on language in Ulan, their assessment was that Ms Riazati would not have the skills to perform the new role to the required standard with a reasonable period of retraining.

[62] As recently noted by the Full Bench in Technical and Further Education Commission T/A TAFE NSW v L. Pykett (TAFE NSW) 49:

“[40] The Commissioner ... failed to make a finding that there was a job, a position or other work to which Ms Pykett could have been redeployed. Such a finding is a necessary step in reaching a conclusion that it would have been reasonable in all the circumstances for Ms Pykett to be redeployed within the appellant’s enterprise.”

[63] Based on the material before me, I am not satisfied that Ms Riazati had the skills and competence required to perform the new role to the required standard either immediately or with a reasonable period of retraining. Further, I am not satisfied that there was a job, a position or other work to which Ms Riazati could have been redeployed. Accordingly, I am therefore unable to conclude that it would have been reasonable in all the circumstances for the Applicant to be redeployed within the employer’s enterprise.

Other Issues

[64] Ms Riazati raised a number of other issues in her application and in the proceedings. Specifically, Ms Riazati alleged that she had not been paid all the sales commission owing to her and also requested that IMS meet the cost of repairs to her laptop computer which she contended was damaged in the course of her work, that IMS meet the additional cost of her upgraded mobile phone plan for the period post her dismissal until the plan expired and that IMS return the iPad given to her by Mr Bigelow.

[65] IMS disputed each of these issues.

[66] Based on the limited and at times conflicting material before me regarding these issues, I am unable to form a definitive view on any of the issues.

[67] For instance, with regard to the iPad, Mr Asenberger’s and Mr Patterson’s evidence was that it was their understanding that business equipment such as iPads provided to employees for work related purposes remained the property of IMS. I note that this is not an uncommon practice among employers. However, Mr Asenberger also conceded that he was not present when Mr Bigelow provided the iPad to Ms Riazati.

[68] As to the alleged underpayments, Ms Riazati contends, among other things that she is owed commission in respect of Issues 54 and 59 of the ETS magazine. However, attached to the material provided to the Commission by Ms Riazati is an email from her to Mr Bigelow on 2 June 2014 which states “ETS: Issue 54, 55 and 56 has been paid.” In respect of Issue 59, the payment of commission revolves around whether or not advertising sales were processed by the magazine cut-off date. In this regard, Ms Riazati contends that the cut-off date for Issue 59 was 14 February 2014, whereas IMS contends that it was 7 February 2014.

[69] Accordingly, and as noted above, I am unable to form a definitive view on any of these issues.

Conclusion

[70] Drawing on the above, I am satisfied that Ms Riazati’s dismissal was a genuine redundancy as per s.389 of the Act. Accordingly and consistent with the observations in Ulan, Ms Riazati’s dismissal does not satisfy the requirements set out in s.385 of the Act. Ms Riazati’s application for unfair dismissal is therefore dismissed. An order to this effect is attached at PR558938.

Appearances:

A. Riazati on her own behalf.

A. Richards for the Respondent.

Hearing details:

2014.

Melbourne:

September 8.

 1   Transcript at PN331

 2   Ibid at PN458

 3   Ibid at PN474-492

 4   Applicant’s written submissions

 5   Ibid

 6   Ibid

 7   Exhibit R1

 8   Transcript at PN88

 9   Ibid at PN104

 10   Ibid at PN109-112

 11   Ibid at PN134-135

 12   Ibid at PN57-58

 13   Exhibit IMS1

 14   Transcript at PN 210

 15   Ibid at PN212

 16   Ibid at PN214

 17   Ibid at PN232

 18   Ibid at PN232-234

 19   Ibid at PN235

 20   Ibid at PN244

 21   Ibid at PN250

 22   Ibid at PN278-280

 23   Ibid at PN331

 24   Ibid at 349-366

 25   Exhibit IMS3

 26   Transcript at PN544-549

 27   Ibid at PN550-552

 28   Ibid at PN564

 29   Ibid at PN568

 30   Ibid

 31   Ibid at PN571

 32   Ibid at PN643 and PN694

 33   Ibid at PN644

 34   Ibid at PN704

 35   Exhibit IMS4

 36   Transcript at PN756-757

 37   Exhibit IMS5

 38   Transcript at PN793-797

 39   Ibid at PN810

 40   Ibid at PN834

 41   [2010] FWAFB 7578 at paragraph [26]

 42 (2010) 196 IR 32 at paragraph [17]

 43   Transcript at PN63

 44   Exhibit R1 and Exhibit IMS1 at JB-1

 45   PR911257 at paragraph [25]

 46   [2011] FWA 4239

 47   [2010] FWAFB 7578 at paragraph [34]

 48   Transcript at PN331-334

 49   [2014] FWCFB 714

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