David Saffioti v Connected Advice Pty Ltd

[2023] FWC 1813

[2023] FWC 1813

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

David Saffioti
v

Connected Advice Pty Ltd

(U2023/1951)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 24 JULY 2023

Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – application dismissed.

1. Mr Saffioti was employed as a Trainee Wealth Adviser by Connected Advice Pty Ltd (Connected) from 6 January 2021 until 27 February 2023. Connected contends that Mr Saffioti’s dismissal was a genuine redundancy within the meaning of s 389 of the Fair Work Act2009 (Cth) (Act). Connected also submits that it was a small business employer and it complied with the Small Business Fair Dismissal Code in relation to Mr Saffioti’s dismissal. Mr Saffioti denies those assertions and contends that his dismissal was harsh, unjust and unreasonable.

1. I heard Mr Saffioti’s unfair dismissal case against Connected in the Fair Work Commission (Commission) at Newcastle on 4 July 2023. Mr Saffioti gave evidence at the hearing. He also adduced evidence from one of his former work colleagues, Mr Vince Martin. Connected adduced evidence from Mr Stuart McArthur, General Manager Sales and Marketing of Connected, Mr Andrew Grinsell, Head of Wealth at Cooee Wealth Partners, and Mr Hayden Brandt, Sales Professional employed by Connected.

Initial matters to be considered

1. Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the Application.

1. There is no dispute between the parties and I am satisfied on the evidence that:

(a)Mr Saffioti’s application was made within the period required in s 394(2) of the Act; and

(b)Mr Saffioti is a person protected from unfair dismissal.

1. In relation to the third and fourth initial matters which I am required to consider, the parties are in dispute as to whether Mr Saffioti’s dismissal was a genuine redundancy, whether Connected was a small business employer under the Act, and whether Connected complied with the Small Business Fair Dismissal Code. Accordingly, I must decide those questions before I consider the merits of the application.

Genuine Redundancy

1. Section 389 of the Act defines genuine redundancy as follows:

“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.”

1. “Associated entity” has the meaning given by s 50AAA of the Corporations Act 2001 (Cth).

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

1. It is necessary to determine whether Connected no longer required Mr Saffioti’s job to be performed by anyone because of changes in the operational requirements of Connected’s enterprise.[1]

1. A job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee”.[2] Where there has been a reorganisation or redistribution of duties, the question is whether the employee has “duties left to discharge”.[3] For example, an employer may redistribute all the tasks done by a particular person between several other employees, resulting in the person’s job no longer existing.

1. An employee’s job may be genuinely made redundant when the employee’s duties, or aspects of them, are still being performed by other employees.[4] The test is whether the job previously performed by the employee has survived the restructure or downsizing, not whether the duties have survived in some form.[5]

1. The reference to “changes in the operational requirements of the employer’s enterprise” in s 389(1)(a) of the Act includes circumstances where an employer restructures its business to reduce costs or improve efficiency, productivity, sales, revenue or some other aspect of performance. The operational circumstances of a business which may give rise to a redundancy will reside in the direct knowledge of the employer. The evidentiary onus is on the employer to provide direct evidence about the nature of the employee’s job and why it is no longer required to be performed as a result of changes in the operational requirements of the employer’s enterprise.

1. If a dismissal is found to be a genuine redundancy within the meaning of the Act, issues such as unfair selection procedures for redundancy are not relevant, because they go to the merits of the claim that the applicant was dismissed harshly, unjustly or unreasonably.[6]

Relevant facts – job no longer required because of changes in operational requirements

1. Connected Advice is a wholly owned subsidiary of Cooee Group Holdings Pty Ltd, as is Independent Adviser Services Pty Ltd trading as Cooee Wealth Partners (Cooee Wealth Partners).

1. Cooee Wealth Partners holds an Australian Financial Services Licence. Cooee Wealth Partners permits financial advisers, known as ‘Wealth Partners’, who pay a fee to use the Cooee Wealth Partners name, its Australian Financial Services Licence, and its processes and systems. Wealth Partners provide financial advice to clients. Wealth Partners are authorised representatives, corporate authorised representatives or contractors of Cooee Wealth Partners. Wealth Partners operate under separate corporate entities.

1. Connected Advice undertakes sales and marketing services for Cooee Wealth Partners, with the objective of booking appointments for clients to obtain advice from Wealth Partners.

1. The job advertisement for Mr Saffioti’s role with Connected Advice informed him that he would “embark on a trainee program” during which he would “learn all aspects of working as a financial adviser”. The following representations were also made in the job advertisement:

• “This is a dream role and offers unprecedented opportunity for career progression. Building on your success in the Tuggerah office you will earn the opportunity to work under supervision of a Wealth Partner in our Sydney office. Here you will gain extensive financial planning and business management skills.

During this time, you would also complete your Masters in Financial Planning and other specialist qualifications.

Successful employees will then be offered the opportunity to become a Cooee Wealth Partner. You will be rewarded with a sold base salary, profit split, and equity ownership. All appointments will be booked for you and you will have the opportunity to provide true, holistic advice to a wide range of clients on a 100% fee for service basis…”

• “Who are we?

  Cooee Wealth Partners is a highly successful financial services company. The foundation of our success is embedded in our proven systems and processes and the outstanding calibre of people that we partner with…”

1. There were two principal parts to Mr Saffioti’s role of Trainee Wealth Adviser of Connected at the time his employment came to an end. First, Mr Saffioti undertook professional sales duties for about five hours each day. This work involved engaging with prospective clients of Cooee Wealth Partners, gathering their financial information, determining their suitability for Cooee Wealth Partners advice, and booking them in for one-on-one consultations with a Wealth Partner. Secondly, for about three hours a day Mr Saffioti undertook training and associated financial planning activities under the supervision of Mr Julian Coleman, a Cooee Wealth Partner.

1. As a Trainee Wealth Adviser, Mr Saffioti was participating in the Cooee Trainee Wealth Partner Program, sometimes known as the ‘Graduate Program’ or the ‘Graduate Recruit Program’. The program was directed at providing graduates with the training, skills and experience to eventually become a Wealth Partner. Mr Saffioti was the only participant in that program at the time his employment with Connected came to an end. Three other Trainee Wealth Advisers had been employed by Connected in early 2021, but they were no longer employed by Connected in February 2023.

1. In February 2022, Mr Grinsell appeared in a Cooee Wealth Partners’  YouTube video in which he gave a market update. Mr Grinsell spoke in the video about turbulence in the financial markets at that time. However, as Mr Grinsell explained in his oral evidence, in February 2022 he did not anticipate that interest rates would increase as quickly and as high as they have since February 2022.

1. In May 2022, Cooee Wealth Partners engaged seven new Wealth Partners.

1. In June 2022, Mr Saffioti enquired as to whether there were still opportunities for him to progress in the business notwithstanding the additional hires of seven new Wealth Partners. He was given a positive response by Mr McArthur.

1. On 9 and 10 July 2022, Mr Saffioti engaged in the following email communications with Mr McArthur:

Saturday, July 9, 2022 3:07:13 PM
“Hi Stuart,

How do you feel about me smashing out the rest of my diploma in the shortest possible time, and taking some time off work to do it so that I can start taking the first appointments as soon as possible? Given the recent movements I wasn’t entirely sure, and I wanted certainty we are on the same page. That way I am not putting myself under unnecessary stress. Doing a diploma/degree is a big commitment and I need fresh re-assurance I am making the right decisions.

1. Preferred

2. Indifferent

3. Undesirable

Was going to casually discuss on Saturday with you as I thought it may be my last chance to enrol, however I did some more digging and looks like there is still a little bit of time to decide.”

Saturday, 9 July 2022 3:22 PM
“Dave, lets talk on Monday.

At the moment you need to dramatically improve your results. Im not sure if you understood that 2 shows a month is unacceptable. Progress is based on results.

We will discuss on Monday.
Stuart”

Sunday, July 10, 2022 9:48:31 AM
“Hi Stuart,

3. Undesired then - thanks for the fast reply, let’s talk the following week then if possible. That’s enough information for me for now to know not to up my enrolment.

Happy to make a plan for the way forward, but I still need to get through this set of assessments unscathed. Hope you understand, and if I was to leave you with something it is that I was the best seller out of the 5 graduates you’ve taken on board – and the only one that didn’t quit on you; So let’s just relax for now.

If it’s about results, then that alone puts me in the top 20%. If you consider how many people you interviewed and indeed the number who applied, that would be well within the top 1%. I thank you for, and appreciate the opportunity; and also I would like to highlight that.

The number of shows dropped when I started my degree, then it dropped more when I was asked to increase my progress in January – which I did. That is not a co-incidence, and I am confident it can increase without the 15-20hour weekly requirements of each subject in doing a degree. That’s 30-40hours per week as recommended by Kaplan with the current loading.

On that bombshell I had better get on with it. That’s because I’m taking my role very seriously – clearly! It’s a weekend I’m working away trying to get through the course – just like every weekend for the last year!

Regards,
David”

Sunday, 10 July 2022 11:34 AM
“Dave,

Lets talk on Monday!

If you would like to quit, I won't and never will take that as you are quitting on me, so don't feel bad about that.

On Monday we will review your performance to date against your set KPIs, not anyone else's personal results. From there we will put measures and steps in place to monitor your performance on a weekly basis to ensure you are on track to reaching your set KPIs.

Progress in the organisation is based on the results you achieve. Those results are measured against your KPIs. At the moment your results are not justifying progression.

Regards,
Stuart”

1. In July 2022, Mr Saffioti contends that he had a meeting with Mr McArthur in which Mr McArthur said to him:

• “I don’t care about you.”

• “You mean nothing to me.”

• “You won’t be working here for very long.”

1. Mr McArthur denies that he made any such statements to Mr Saffioti. I prefer Mr McArthur’s evidence in relation to this contested issue. First, unlike other important conversations that Mr Saffioti had with Mr McArthur, he did not make a diary note of any of these statements, nor did he make any reference to them in his ongoing email communication with Mr McArthur. Secondly, the content of these statements is at odds with the contemporaneous email communications between Mr McArthur and Mr Saffioti[7] in which Mr McArthur did not encourage Mr Saffioti to ‘quit’ and instead focused on Mr Saffioti’s results measured against his key performance indicators.

1. In August 2022, Mr Saffioti became included in the weekly Monday morning meeting of Cooee Wealth Partners. Mr Saffioti’s telemarketing key performance indicators and targets remained in place.

1. In September 2022, Mr Saffioti had a meeting with Mr McArthur about how he could progress to the position of Wealth Partner.

1. In October 2022, Mr Saffioti was permitted to progress his training by acting as an associate to Mr Julian Coleman, a Wealth Partner.

1. In November 2022, Mr Saffioti was given additional duties to assist Mr Coleman for three hours a day, but his full telemarketing/sales key performance indicators and targets remained in place.

1. On 30 November 2022, Mr Martin, a Wealth Partner, left the Cooee Partners Wealth business by mutual agreement. As a result, Mr Martin was not in a position to know whether Connected or Cooee Wealth Partners restructured or made any roles redundant in February 2023.

1. In December 2022, Mr Saffioti only achieved two first client meetings with advisers (known as ‘shows’) in the sales aspect of his role. Mr Saffioti says that a rule was brought in at this time whereby a minimum of three ‘shows’ were required in a month to qualify for a bonus.

1. In January 2023, Mr Saffioti completed his Graduate Diploma of Financial Planning, which is the minimum requirement of an adviser and constitutes eight of the 12 courses required to obtain a Masters of Financial Planning.

1. On 25 January 2023, during a work in progress meeting, Mr Saffioti, at his request, had a ‘brainstorming’ session with Mr Coleman and Mr Grinsell on how he could progress to becoming a Wealth Partner. According to the position description for Mr Saffioti’s role of Trainee Wealth Adviser,[8] Mr Saffioti needed to increase his ‘shows’ from 80 to 140 and obtain his Masters of Financial Planning before he could progress to his professional year as a financial adviser under the supervision of a Wealth Partner. There was also discussion at this meeting about whether a different role could be created for Mr Saffioti, with an improved pay structure, to better align with the extra work he was doing as an associate to Mr Coleman. However, there was no firm offer of a new role for Mr Saffioti at this meeting.

1. In a ‘catch-up’ meeting with Mr Grinsell on 8 February 2023, Mr Saffioti asked Mr Grinsell about the types of roles that someone in his position may be able to work in on their way to becoming a Wealth Partner. Mr Grinsell answered this question by telling Mr Saffioti about roles such as a Paraplanner and an Implementation Co-ordinator. Mr Grinsell told Mr Saffioti that he would discuss with management whether such a role could be created for Mr Saffioti.

1. Following his discussion with Mr Saffioti on 8 February 2023, Mr Grinsell discussed with Mr Daniel White, CEO of Cooee, whether a new role in Cooee Wealth Partners could be created for Mr Saffioti. Mr White informed Mr Grinsell that no such role was required in the business at that time.

1. In a document dated 8 February 2023, Cooee Wealth Partners analysed the capacity of its Wealth Partners and required staffing levels.[9] The analysis concluded that Wealth Partners were operating at about 40% of their capacity and client numbers would need to increase substantially “prior to engaging any further staff advising clients. This would include Associates, Professional Year Advisers and Wealth Partners.” The analysis shows that total client numbers for Cooee Wealth Partners increased slightly between early 2022 and early 2023, however Mr Grinsell explained that there was a downturn in business for Cooee Wealth Partners during this period because interest rates increased much faster and higher than had been expected, with the result that many clients of Cooee Wealth Partners were not able to obtain loans for investment properties. This was one of the primary ways Cooee Wealth Partners assisted its clients to increase their investment portfolio. Less investment activity on the part of clients of Cooee Wealth Partners led to reduced revenue for Cooee Wealth Partners.

1. On 9 February 2023, Mr Daniel White, Mr McArthur and Mr Grinsell, participated in a general meeting. The minutes from that meeting include the following relevant statements:[10]

“4. Impact of the Current Economy: The general economic downturn resulting from the Covid pandemic and the recent increase in interest rates has negatively impacted new client acquisition numbers and resulted in growth trajectories falling below expected forecasts. These factors are predicted to continue to influence growth into 2024.

5. Review of Wealth Partner Capacity: The review of Wealth Partner Capacity has identified that the existing 6 Wealth Partners are operating at about 40% of capacity with their client volumes below their minimum capacity of 120.

6. Staffing Requirements: We would require a total 720 new clients to fill the existing Wealth Partner capacity prior to taking on any further staff advising clients. This includes Associates, Professional Year Advisers and Wealth Partners.

7. Trainee Wealth Partners: It was determined that the current staff capacity is sufficient to meet the business needs without the addition of Trainee Wealth Partners. The decision to discontinue the Trainee Wealth Partner Program is primarily influenced by the current general business factors. The reduced rate of new client acquisition, attributed to the general economic downturn from the Covid pandemic and the recent increase in interest rates, has impacted the business. In light of these factors, it was determined that allocating resources towards trainees is not currently aligned with the company’s objectives.”

1. Connected tendered a number of documents in the form of news articles and research papers to support its contention that, in February 2023, the outlook for the economy was not positive.[11]

1. On 13 February 2023, Mr Saffioti had a meeting with Mr McArthur. During that meeting Mr McArthur says that he discussed the following matters with Mr Saffioti:[12]

• Mr McArthur informed Mr Saffioti that Cooee Wealth Partners were no longer taking on Trainee Wealth Advisers and would not be for the foreseeable future. This was due to economic and general business factors. The economic results of COVID and the recent interest rate rises, as well as a general business downturn, had resulted in growth trajectories falling below expected forecasts. Further, two Wealth Partners had recently left the Cooee Wealth Partners business and there was no intention of replacing them in the foreseeable future.

• As a result, Mr McArthur advised Mr Saffioti that Cooee Wealth Partners was changing its business processes and were no longer able to accommodate Trainee Wealth Advisers. As a result, the pathway for graduates transitioning from Connected and joining Cooee Wealth Partners to undertake graduate training was no longer viable. This resulted in Connected making the Graduate Recruit Program redundant.

• Mr McArthur told Mr Saffioti that his role as Trainee Wealth Adviser was no longer viable, and the Graduate Recruit Program was being made redundant effective immediately. Mr Saffioti was also advised that the decision was not a reflection on his performance.

• Mr McArthur explained to Mr Saffioti that Cooee Wealth Partners would only be seeking experienced staff moving forward and although he had just completed his Diploma in Financial Services, Mr Saffioti had no experience and would need to undergo extensive training prior to taking on any role with Cooee Wealth Partners.

• Mr McArthur offered Mr Saffioti the opportunity to continue his employment with Connected in the role of Sales Professional. Mr McArthur also let him know that he could do that role while he sought future employment in the financial services industry. Mr Saffioti was given some time to think about the offer.

• Mr McArthur explained to Mr Saffioti that he would help him in any way he could in securing a role in financial services. Mr Saffioti asked if he could be provided with a reference. Mr McArthur agreed and provided him with a favourable reference on 20 February 2023.

1. Mr Saffioti accepts that during the meeting with Mr McArthur on 13 February 2023, which he says took about 15 to 20 minutes, he was told that:

• the Graduate Recruit Program had been cancelled;

• the reasons for the cancellation of the Graduate Recruit Program were economic and general business factors, COVID-19 and recent interest rate rises, a general business downturn resulting in growth trajectories falling below expected forecasts, and two Cooee Wealth Partners having recently left the business with no intention of replacing them in the foreseeable future;

• as a result, the pathway for graduates transitioning from Connected to joining Cooee Wealth Partners to undertake graduate training was no longer viable; and

• the decision was not a reflection on Mr Saffioti’s performance. Mr Saffioti asked Mr McArthur to provide him with a reference. Mr McArthur agreed.

1. Mr Saffioti does not accept the balance of the conversation advanced by Mr McArthur in paragraph [38] above. I do not need to determine whether the contested parts of the discussion on 13 February 2023 took place. I have decided the question of genuine redundancy on the assumption that they did not.

1. In his witness statement Mr McArthur stated that he sent an email to Mr Saffioti dated 15 February 2023 with the subject line ‘Redundancy and Next Steps’. Mr McArthur also included in the respondent’s list of documents a copy of the purported email from himself to Mr Saffioti on 15 February 2023. However, as Mr Saffioti pointed out in his reply witness statement, the copy of the email dated 15 February 2023 shows, in the ‘sent items’ part of the document, that it was sent by Mr McArthur to himself, rather than to Mr Saffioti.[13] The body of the 15 February email states:

“Dave,

As discussed, It is with regret that I had to inform you that the Graduate Recruit Program has been cancelled due to unforeseen circumstances beyond the control of Connected Advice.

Cooee Wealth Partners are no longer taking on Trainee Wealth Partners and won’t be for the foreseeable future. This is due to economic and general business factors including the economic downturn as a result s of Covid and the recent increase in interest rates as well as a general business downturn. This has impacted Cooee Wealth Partners and resulted in growth trajectories falling below expected forecasts. Further, two Wealth Partners had recently left Cooee Wealth Partners business and they have no intention or requirement to replace them in foreseeable future.

Going forward Cooee Wealth Partners are no longer going to accommodate Trainee Wealth Partners and have cancelled their Graduate Program. As a result, the pathway for graduates transitioning from Connected Advice and joining Cooee Wealth Partners to undertake graduate training is no longer viable. This has resulted in Connected Advice making the difficult decision to cancel the Trainee Program making it redundant. This means that your position as Trainee Wealth Partner has also been made redundant.

I understand that this has come as a disappointment, but as I have said this decision is not a reflection on your performance or the value you have added to the company.

I have offered you the opportunity to continue your employment with Connected Advice as a Sales Professional with the same pay and benefits. Please take your time to consider this offer.

I know that you want to pursue a career in financial services and I am happy to help you where possible. I will provide you with a reference as requested. Whilst you are seeking employment in financial services you can work here as a Sales Professional.

Again I apologize for the inconvenience this may cause, but I wanted to let you know as soon as I was aware.”

1. Mr McArthur explained in his oral evidence that when he was preparing his response to Mr Saffioti’s unfair dismissal claim he needed to restore emails which he recalled sending to Mr Saffioti but had deleted as part of a clean-up of his system. Mr McArthur used Microsoft Assistant to retore his deleted emails. He says that once the 15 February 2023 email was restored it appeared in the format shown on page 373 of the Court Book, which shows the email as a sent item to ‘Stuart McArthur’ in the left hand column of his Outlook Mailbox, but a sent item to ‘David Saffioti’ once the email is opened. Once Mr McArthur read Mr Saffioti’s reply witness statement and realised the problem identified by Mr Saffioti with the 15 February 2023 email, being that the recipients are inconsistent, he contacted an IT consultant in an endeavour to find out what had happened. The IT consultant informed Mr McArthur that when the 15 February 2023 email was restored after having been deleted the metadata in the email was incomplete and contained inconsistencies. Mr McArthur maintains that he sent the email to Mr Saffioti on 15 February 2023, but because he cannot definitively prove that he did so, he does not seek to rely on the 15 February 2023 email as part of his evidence.

1. Mr Saffioti was adamant that he did not receive the 15 February 2023 email from Mr McArthur. Mr Saffioti accused Mr McArthur of lying about the 15 February 2023 email and engaging in fraudulent conduct. Mr McArthur denied those allegations.

1. I accept Mr Saffioti’s evidence that he did not receive the 15 February 2023 email from Mr McArthur. The evidence given by Mr Saffioti that he did not receive the email was persuasive and is supported by the version of the email which suggests that it was sent by Mr McArthur to himself, not Mr Saffioti. However, I am not satisfied that Mr McArthur lied about the 15 February 2023 email or that he engaged in fraudulent conduct. I consider Mr McArthur’s explanation in relation to the 15 February 2023 email to be plausible. It is clear from Mr McArthur’s evidence that he does not have expertise on the subject of Microsoft and the restoration of deleted emails. Further, whether or not the 15 February email was sent to Mr Saffioti makes little difference to the outcome of the case because, as I will shortly explain, Mr McArthur sent a further email to Mr Saffioti on 23 February 2023 in relation to the restructure and its impact on Mr Saffioti. 

1. On Wednesday, 15 February 2023, Mr Saffioti had a discussion with Mr Grinsell about roles at Cooee Wealth Partners. Following this discussion Mr Grinsell sent an email to Mr McArthur at 6:03pm on 15 February 2023. The email states:

“Hi Stu,

David doesn’t seem to understand that there is no alternate position for him within the Cooee group.

Prior to deciding to cancel the grad program, I discussed with him that he’ll need exposure to various roles. He called me four times today before I was free to talk and wanted to know when we would be opening up other positions that he could apply for and when we would be recruiting Wealth Partners. I told him that’s not decided yet.

He appears under the impression that he can wait in Connected Advice and that he will get an advice role in Cooee.”

1. On 19 February 2023, Mr Grinsell sent Mr Saffioti an email to clarify the staffing intentions for Cooee Wealth Partners. The email states:

“Hi David,

Following our discussion on Wednesday, I believe it’s necessary to clarify the current staffing intentions for Cooee Wealth Partners:

·Supporting roles (paraplanning, administration) – All hires for these roles will be offshore and experienced in these roles

·Wealth Partners – Whilst there are no plans to add Wealth Partners for the foreseeable future, we intend that Wealth Partners will have several years of advice experience

Any discussion I have had with you regarding potential roles, such as onshore trainee-level paraplanning or implementation coordination would have been created specifically to provide a graduate pathway. Given that the graduate pathway is now closed, no such roles will be created for the foreseeable future and there is no guarantee they will ever be created.

I hope this provides you with the clarification you were seeking.”

1. Mr Saffioti responded with an email to Mr Grinsell, sent at 7:19pm on 20 February 2023, in the following terms:

“Hi Andrew,

Thank you kindly for getting back to me. I know you would be disappointed if I just accepted this. That's why I want to say that for as long as I am employed as a graduate: Contractually the program could not be canceled/closed; as I am the graduate program. Saying that the Graduate Program is canceled/closed, whilst I am working here, is false.”

1. On 20 February 2023, Mr McArthur spoke to Mr Saffioti, who told him that the Trainee Wealth Partner Program could not be cancelled because he was the program.[14] Mr McArthur told Mr Saffioti that the program had been cancelled by Cooee Wealth Partners due to economic and general business factors. Mr McArthur explained that the pathway for graduates transitioning from Connected to undertake graduate training within Cooee Wealth Partners was no longer available. Mr Saffioti asked if he could call the CEO of Cooee Wealth Partners to discuss the matter further. Mr McArthur told him that he could, but it would be prudent for him to send an email first.[15] At 7:47pm on 20 February 2023, Mr Saffioti sent an email to Mr White in relation to his concerns and questions regarding the cancellation of the Trainee Wealth Partner Program and its impact on him. The email states:

“Hi Daniel,

First of all, I must thank Stuart for writing my letter of recommendation attached – it’s very impressive.

I am emailing you because I wanted to call you regarding the Graduate Program, and Stuart has asked me to send you an email requesting so.

It’s been 2 years and I have undergone a degree for which I have moved my family and gotten my Graduate diploma, at my own expense, on little more than minimum/award wage (even after the commission bonuses). Now I am facing the rest of the degree. That's why I have endured these difficulties - long enduring personal difficulties - because I have signed up for the progression to wealth partner. It's not easy to juggle work, study and a family, but progression to Wealth Partner is why I have undergone the Trainee Graduate Program and it's requirements - that’s the deal.

The graduate program must remain. For as long as I am employed as a graduate, contractually the program could not be closed/canceled; as I am the graduate program. Saying that the Graduate Program is closed/canceled, whilst I am working here, is false; and it makes me wonder why anyone would say that or want to say that. That's what I want to call about. Given my time, effort and contribution to the company on our contract - the deal that we have - including the contract in place: I need to ask for your side of what's going on and hear it from you. Are you saying that it is canceled? If so, why would you say that and what's going on? It's been too expensive and life changing for me over the last 2 years. I've contributed too much for too long, worked too hard to meet every one of the company's requirements. I hope that makes sense.

In my 3rd interview on 24th November 2020, you spoke about how you try to find employees with Empathy. Assuming that you've said that because you are empathic yourself, and not because of any other reason such as wanting to make it seem you are empathic or making it seem like you share the same values as myself; I need to know why you would any part of making a decision like that. If you did make this decision, then how could you do this to me - one of your loyal employees?

I also want to talk about how you could do this to yourself and your own company. Again in my 3 rd interview, you said the type of people you were looking for were people who could progress through the graduate program. If you don't really want that then I would like to know why you said that and why I get the news of otherwise after 2 years; After I have provided 80 shows for Cooee - exceeding the performance of others - whilst on a low wage and undertaking extensive educational requirements?

Daniel, If you don't reward and remunerate someone for doing what you have asked them to do, then who do you reward and remunerate? This, I believe, really has deep real-world consequences about what the future holds for Cooee - what people you have and how people behave. Also, it will show everyone what Cooee is really about. What does a contract from Daniel White really mean? What is your word worth? How do you and your business associates conduct your business? What sort of an organisation do you want to run and be known for? What caliber of people do you wish to retain and promote? How do you treat others on which your business success relies? Finally, who are you and who do you want to be?”

1. Also on 20 February 2023, Mr McArthur provided Mr Saffioti with a reference in the following terms:

“To Whom It May Concern,

I am writing this letter of recommendation for David Saffiaoti, who was employed by Connected Advice in the capacity of undertaking the Cooee Wealth Partners Graduate Program. David started the program during 2021, however, due to unforeseen circumstances, the program was cancelled, and he was unable to complete it.

During his time at Connected Advice, David’s initial and ongoing training involved engaging with prospective clients, gathering their financial information, and determining their suitability for Cooee Wealth Partners advice, and booking them in for one-on-one consultations with Wealth Partners.

Through this work, David has developed excellent interpersonal and sales skills, with a particular emphasis on helping clients understand their financial goals and identifying the gaps between their goals and their current financial position. His experience has provided him with a strong skill set in understanding financial concepts, sales, and customer service.

David’s desire to develop his career resulted in him progressing to assisting with the administrative elements of the financial planning process within Cooee Wealth Partners. Throughout this time, he displayed a keen interest in fully understanding the technical requirements of these roles, as well as the fundamental reasoning underpinning a fee-for-service advice mode.

David is a reliable, hardworking, and goal-oriented individual who is committed to achieving success in any task he undertakes. He has demonstrated great initiative and the ability to work independently or as part of a team.

Based on David’s skills and experience, and recent financial Planning qualifications we are confident that he would make a valuable contribution and addition to any organisation.

Please feel free to contact me if you have any further questions or require additional information.”

1. On 21 February 2023, Mr Grinsell informed Mr Saffioti, by email, that he should address the matter with Mr McArthur because he was employed by Connected.

1. At 11:48am on 23 February 2023, Mr McArthur sent an email to Mr Saffioti about the cancellation of the Trainee Wealth Partner Program, its impact on him and the offer of an alternative role as a Sales Professional. The email states:

   “Dave,

   I wanted to follow up with you regarding our recent discussion. It is with regret that I had to inform you that the Graduate Recruit Program has been cancelled due to unforeseen circumstances beyond the control of Connected Advice.

   I understand that this news may be disappointing, but please know that this decision was not a reflection on your performance or the value you have added to the company.

   As you are aware, Cooee Wealth Partners has decided not to take on Trainee Wealth Partners for the foreseeable future due to economic and general business factors. Further, and most recently two Wealth Partners have departed with no immediate plan to replace their positions.

   Consequently, Cooee Wealth Partners are no longer able to accommodate Trainee Wealth Partners. This means that the pathway for graduates (of which you are the only one) transitioning from Connected Advice to undertake graduate training within Cooee Wealth Partners is no longer viable, and unfortunately, this has resulted in the redundancy of the Graduate Recruit Program and any future potential Trainee Wealth Partner positions.

   I apologize for any inconvenience this may cause, and please know that we are committed to supporting you in any way we can. I have already provided you with a letter of reference and offered you the opportunity to remain at Connected Advice as a Sales Professional. If you would like to take up this offer, please let me know by Monday, 27 February, 2023. I have attached a Sales Professionals contract and Position Description for your perusal, please feel free to reach out if you have any questions about the contract.

   I understand that you may wish to continue pursuing a career in financial planning, and I wish you all the best in your endeavours. I am confident that with your skills and determination, you will continue to achieve great things and find the path you need to succeed.

   Thank you for your hard work and dedication, and please know that we appreciate everything you have done for Connected Advice.”

1. This email is in very similar terms to the email which Mr McArthur believed he had sent to Mr Saffioti on 15 February 2023. Mr McArthur says that he sent the 23 February 2023 email to Mr Saffioti because Mr Saffioti was continuing to raise a number of issues about the cancellation of the Trainee Wealth Partner Program.

1. Mr Saffioti responded by an email sent to Mr McArthur at 4:55pm on 24 February 2023. The email states:

“Hi Stuart,

Thank you for emphasising my performance and the value I have added to the company. The Graduate Program, however, cannot be cancelled as I am employed as Graduate Trainee Wealth Partner, so for as long as I am here, then contractually this is false. If you are dismissing me the notice starts from when you give your notification. Are you dismissing me? Previously I recalled conversations that you wanted to cancel the graduate program, but nothing formally resolving the ideas you had. For all I knew you could’ve been beginning my Professional Year early – something we had been working towards in communications as recent as October (attached).

Saying that the need for wealth partners (financial advisers) has evaporated does not make sense.
-In 2021 you hired 5 Trainee Graduate Wealth Partners
-In May of 2022 Cooee hired 7 Wealth Partners. After losing 2 you should have a greater need for financial advises as you’ve lost 2 very recently.

Now after 2 years on barely more than minimum/award wage and after I’ve just completed my Graduate Diploma in Financial Planning – extensive education requirements on my own back – you’ve told me there is not a business need for what is your core business? That is unbelievable. It is also not unnoticed that Connected Advice services only Cooee – the company for which you yourself are on the board of directors. It was the Cooee Trainee Graduate Program which was advertised, and I have been assisting Cooee directly with my own Cooee email address and signature. Saying that hiring decisions are beyond the control of Connected Advice does not make sense, and begs the question of why Connected Advice needs to exist at all if not simply to conveniently deflect responsibility and attention from the Cooee brand it services at times just like this!? Also, I would like to point out I was hired under the entity of Connected Advice for the sole purpose of being a Cooee Wealth partner. So at this point I am wondering:

-Why did you hire so many Graduates?
-Why did you hire so many Wealth Partners after you hired graduates?
-Why have you been telling me to get my degree finished more quickly so many times over the last two years?

Remember that a budget is an ethical document – it sets out what you value and how much. You could accommodate anything you choose to put into the budget – especially graduates, but more appropriate for me, adviser support roles. There is a need for adviser support roles as I have first hand experience of the effects of 2x Wealth Partners resigning has on the very adviser I was assisting – Julian Coleman – now drowning in work from the wake of their departure. Further to that; I understand that Cooee is currently hiring Adviser Assistant, Implementation Co-ordinator, and Paraplanner Roles – all roles which I can continue to contribute to the business whilst developing to Wealth Partner by undergoing my professional year. This all makes it even more confusing, and given the life-changing nature of what you are proposing, I am still wondering:

-What are the unforeseen circumstances?
-What has changed making a pathway to wealth partner unviable?
-Have you considered any of these roles for me to utilise the degree you have asked me to do?

Again, thank you for telling me all this is not a reflection on my performance or the value I have added to the company, but sales professional is not why I am here. So given the value I have added to the company, wouldn’t it be in your best interests to continue, and even accelerate the value I am able to provide the company in the future with the right role and continued development?”

1. At 5:28pm on 24 February 2023, Mr McArthur sent an email response in the following terms to Mr Saffioti:

“Hi Dave, I have noted your response.

We have already gone into detail about the program being made redundant and as a result, your current role being made redundant.

Please let me know if you are accepting my offer for you to continue on with Connected Advice as a Sales Professional, or if you are refusing to take the offer.

Think about it over the weekend and let me know on Monday.”

1. Mr Saffioti did not accept the offer of alternative employment with Connected as a Sales Professional.

1. On 27 February 2023, Mr Saffioti was provided with a termination letter by Mr McArthur. It states:

“Dear David,

Termination of your employment by reason of redundancy

The purpose of this letter is to confirm the outcome of a recent review by Connected Advice in relation to operational requirements and what this means for you.

As discussed, Cooee Wealth Partners are no longer taking on Trainee Wealth Partners for the foreseeable future due to economic and general business factors. Covid and recent interest rate rises as well as a general business downturn has resulted in growth trajectories falling below expected forecasts. Further, two Wealth Partners have recently left the Cooee Wealth Partners business and there is no intention of replacing them in foreseeable future.

As a result, Cooee Wealth Partners has adapted and changed its business processes and are no longer able to accommodate Trainee Wealth Partners. This means that the pathway for graduates transitioning from Connected Advice to undertake graduate training within Cooee Wealth Partners is no longer viable. This has resulted in Connected Advice making the Graduate Recruit Program redundant. Hence your role as Trainee Wealth Partner is no longer viable. This decision is not a reflection on your performance.

We have offered you an alternate position of Sales Professional with Connected advice. A position you are currently doing as a part of your role as Trainee Wealth Partner. It is on the same pay scale you are currently receiving, and your qualifications are suited to it.

You have notified me today that you will not accept the offer to continue with Connected Advice as a Sales Professional. Regrettably this means your employment will end immediately.

Based on your length of service, you will be paid 2 weeks In lieu of receiving notice, as well as any accrued entitlements including any outstanding pay, leave entitlements as well as any redundancy payment applicable under your employment agreement and workplace entitlement. A final pays lip will be sent to you outlining the applicable payments.

If you have been paid annual leave in advance, any amount of annual leave still owing will be deducted from your final pay. You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at fairwork.gov.au

Redundancy and leave payments will usually give rise to waiting periods for Centrelink payments. You should contact Centrelink to find out how long you have to wait to receive any applicable benefits. The best way to do this is to lodge a claim for payment.

We thank you for your valuable contribution during your employment with us. Please contact me if you wish to obtain a reference in the future.”

Summary of submissions – job no longer required because of changes to operational requirements

1. Mr Saffioti contends that his job was still required to be performed because the duties he undertook “have not disappeared”; they are being done by other employees.

1. Mr Saffioti submits that if an event occurs prior to being made redundant then the redundancy will be considered disingenuous. The event on which Mr Saffioti relies is his request in January and February 2023 for a more suitable pay structure in line with the extra work he was doing as an associate. Mr Saffioti says that the cancellation of the Trainee Wealth Partner Program and the resultant redundancy of his role all occurred after he had a meeting with senior management about roles with the organisation where he could progress his training and work towards becoming a Cooee Wealth Partner. Mr Saffioti contends that Mr McArthur acted deliberately to block his progress to Financial Adviser. Mr Saffioti also submits that Mr McArthur was motivated by trying to avoid his responsibility to train Mr Saffioti as a Trainee Wealth Adviser.

1. Mr Saffioti contends that the economic and business factors relied on by Connected to justify its decision to cancel the Trainee Wealth Partner Program are flawed for the following reasons:

• Mr Saffioti submits that all senior employees within Connected Advice and Cooee Wealth Partners knew that interest rates were going to rise, which would impact the economy.

• Mr Saffioti contends that he was employed after COVID-19 had left its impact on the economy, as were seven new Wealth Partners.

• Mr Saffioti contends that the business did not have a downturn, rather the finance industry had the opposite result as the world emerged from COVID-19. Mr Saffioti contends that business at the Connected/Cooee Wealth Partners organisation had increased because he had provided 36 qualified ‘shows’, half of which were on-boarded as new clients. Mr Saffioti says that he was directly involved with winning 18 new clients and there were five other employees with the same lead generated tasks as him. This equates to approximately 100 new clients in the last 12 months, generated by Connected.

• Mr Saffioti says that although new business was below forecasts, that was because the targets placed on employees were unrealistic. Importantly, Mr Saffioti says that business still increased and contending that the business had a downturn is simply wrong and deceitful.

• As to the fact that two Cooee Wealth Partners had recently left the business, Mr Saffioti argues that this left a productivity and salary deficit for those two positions which, if Connected and Cooee Wealth had honoured their promises to hard working employees such as Mr Saffioti, it could have easily covered these costs while he continued to contribute to the business. Mr Saffioti says that his allocation to Mr Coleman in October 2022 as an associate was needed to relieve Mr Coleman of a significant amount of his tasks. This workload significantly increased, so Mr Saffioti contends, in December and January as Mr Coleman was further snowed under with work in the wake of two Cooee Wealth Partners leaving the business.

1. Connected contends that the general economic downturn in early 2023 and the poor economic outlook for 2024, coupled with the fact that current staff capacity was sufficient to meet the needs of the business without the addition of Trainee Wealth Partners, resulted in a decision being made on 9 February 2023 to discontinue the Cooee Trainee Wealth Partner Program. As a result, Connected no longer needed Mr Saffioti’s job to be performed by anyone.

Consideration – job no longer required because of changes to operational requirements

1. The duties undertaken by Mr Saffioti in his role of Trainee Wealth Adviser continue to exist. The telemarketing/sales aspects of Mr Saffioti’s role are being undertaken by other sales employees of Connected. The work Mr Saffioti was undertaking to assist Mr Coleman to provide financial advice to clients of Cooee Wealth Partners is being undertaken by administrative employees within Cooee Wealth Partners. However, the test is not whether the duties continue to be performed. The test is whether the job that Mr Saffioti was working in is no longer required to be performed by anyone.[16] The evidence demonstrates to my satisfaction that Connected no longer required the job being performed by Mr Saffioti, Trainee Wealth Adviser, to be performed by anyone after 27 February 2023.

1. The second element of s 389(1)(a) is a question of causation: did changes in the operational requirements of the employer’s enterprise cause the employer to no longer require Mr Saffioti’s job to be performed by anyone? I am persuaded by the evidence before the Commission that the answer to that question is yes. Mr Grinsell gave evidence, which I accept, that Cooee Wealth Partners specialises in younger clients who are interested in taking steps to build their wealth, often by purchasing investment properties. The fact that interest rates increased much higher and much faster during 2022 than Mr Grinsell and most economic commentators expected had a negative impact on the business of Cooee Wealth Partners. The increase in interest rates took place as the Reserve Bank attempted to address high inflation which arose after vast sums of money were injected into the economy during COVID-19. Higher interest rates meant that fewer investors were able to obtain finance for investment properties, with the result that there was a downturn in business for Cooee Wealth Partners. Mr Martin, who gave evidence for Mr Saffioti, broadly supported this assessment. Mr Martin was a Cooee Wealth Partner from about mid 2022 until 30 November 2022. The downturn in business and an analysis showing that Cooee Wealth Partners were not working anywhere near their capacity led to the decision to cease the Graduate Program and make Mr Saffioti’s position redundant. This was a difficult decision for Mr Saffioti to face, for it had been represented to him that he would be trained and given the opportunity to become a Cooee Wealth Partner. Mr Saffioti understandably believed that he had upheld his end of the bargain by working in a sales role and completing his Graduate Diploma in Financial Planning, so Cooee Wealth should uphold its end of the bargain by giving him the opportunity to become a Cooee Wealth Partner. Unfortunately, this did not come to pass due to economic and business factors outside the control of Connected and Cooee Wealth Partners.

1. Connected’s decision to make Mr Saffioti’s position redundant as a result of economic and business factors is supported by both contemporaneous documents, in the form of minutes of a general meeting on 9 February 2023 and an analysis of the excess capacity of Cooee Wealth Advisers,[17] as well as press and research articles discussing the dim economic outlook in February 2023.[18]

1. I do not accept Mr Saffioti’s contention that he was dismissed because he had requested what he considered to be a more suitable role and pay structure in line with the extra work he was doing as an associate, or that Mr McArthur acted deliberately to block his progress to Financial Adviser or to avoid his training to become a Cooee Wealth Partner. I am satisfied on the evidence that the real reason for the decision to discontinue the Trainee Wealth Partner Program and make Mr Saffioti’s role of Trainee Wealth Adviser redundant was the business and economic factors explained by Mr Grinsell in his evidence. It would have been a relatively straightforward matter for Connected and Cooee Wealth Partners to have rejected Mr Saffioti’s request for a new position and pay structure and kept him in his current role if it had wanted that role to continue as part of its business structure.

Conclusion – job no longer required because of changes to operational requirements

1. Based on the evidence and for the reasons discussed above, I am satisfied, on the balance of probabilities, that Connected no longer required Mr Saffioti’s job to be performed by anyone because of changes in the operational requirements of Connected’s enterprise.

Compliance with any consultation obligation in a modern award or enterprise agreement that applied to the employment (s 389(1)(b))

1. For there to be a genuine redundancy within the meaning of s 389 of the Act, Connected must have complied with any obligation in a modern award or enterprise agreement to consult about the redundancy. There is no dispute that a modern award applied to Mr Saffioti in relation to his employment with Connected. Mr Saffioti contends that he was covered by the Banking, Finance and Insurance Award 2020, as stated in his contract of employment. Connected contends that Mr Saffioti was covered by the Contract Call Centres Award 2020. I do not need to resolve the dispute about which of these two awards applied to Mr Saffioti, because both awards contain the same provisions in relation to consultation. The relevant provisions state:

   “28.          Consultation about major workplace change

   28.1If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

   (a)give notice of the changes to all employees who may be affected by them and their representatives (if any); and

   (b)discuss with affected employees and their representatives (if any):

   (i)the introduction of the changes; and

   (ii)their likely effect on employees; and

   (iii)measures to avoid or reduce the adverse effects of the changes on employees; and

   (c)commence discussions as soon as practicable after a definite decision has been made.

   28.2For the purposes of the discussion under clause 28.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

   (a)their nature; and

   (b)their expected effect on employees; and

   (c)any other matters likely to affect employees.

   28.3Clause 28.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

   28.4The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 28.1(b).

   28.5In clause 28 significant effects, on employees, includes any of the following:

   (a)termination of employment; or

   (b)major changes in the composition, operation or size of the employer’s workforce or in the skills required; or

   (c)loss of, or reduction in, job or promotion opportunities; or

   (d)loss of, or reduction in, job tenure; or

   (e)alteration of hours of work; or

   (f)the need for employees to be retrained or transferred to other work or locations; or

   (g)job restructuring.

   28.6Where this award makes provision for alteration of any of the matters defined at clause 28.5, such alteration is taken not to have significant effect.”

Consideration – consultation

1. I am satisfied that Connected met its award derived consultation obligations for the following reasons:

(a)Connected gave Mr Saffioti notice of the changes to its organisation and structure in the meeting on 13 February 2023, Mr Grinsell’s email to Mr Saffioti on 19 February 2023, the discussion between Mr McArthur and Mr Saffioti on 20 February 20223, the first paragraph of the reference provided by Mr McArthur to Mr Saffioti on 20 February 2023, and Mr McArthur’s emails to Mr Saffioti on 23 and 24 February 2023. The content of these written communications is set out above. These communications informed Mr Saffioti that there had been economic and business factors which led to a decision by Connected to discontinue the Trainee Wealth Partner Program.

(b)Connected discussed with Mr Saffioti the introduction of the changes to Connected’s organisation and structure, the likely effect of these changes on Mr Saffioti’s role, and measures to avoid or reduce the adverse effects of the changes on Mr Saffioti. These discussions took place orally between Mr McArthur and Mr Saffioti in their conversations on 13 and 20 February 2023, orally between Mr Grinsell and Mr Saffioti in their discussion on 15 February 2023, and in writing in the email communications set out above. In particular, Mr Saffioti was told that the Trainee Wealth Partner Program was being discontinued, which would result in the redundancy of Trainee Wealth Adviser positions, and the adverse effects of these changes could be reduced if Mr Saffioti was agreeable to accept the offer of an alternative job, on the same rate of pay, as a Sales Professional.

(c)Having regard to the fact that the decision to discontinue the Trainee Wealth Partner Program was made on 9 February 2023, as evidenced by the minutes of the meeting on that date,[19] I am satisfied that the discussions with Mr Saffioti about the workplace changes took place as soon as practicable after the decision was made to discontinue the Trainee Wealth Partner Program.

(d)By reason of the written communications set out in paragraphs [45] to [54] above, I am satisfied that Connected gave all relevant information, in writing, to Mr Saffioti about the changes, including the nature of the changes, their expected effect on employees and any other matters likely to affect employees.

(e)I am also satisfied that Connected promptly considered the matters raised by Mr Saffioti about the workplace changes. So much is clear from the oral and written communications set out in paragraphs [38] to [54] above.

Conclusion – consultation

1. For the reasons discussed above, I am satisfied on the balance of probabilities that Connected complied with its award consultation obligations in relation to the redundancy of Mr Saffioti’s position.

Whether reasonable in all the circumstances for the person to be redeployed (s 389(2))

1. For the purposes of section 389(2) of the Act, the Commission must consider whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must be an appropriate evidentiary basis for such a finding.[20] The word “redeployed” in section 389(2) of the Act should be given its ordinary and natural meaning, which is to “transfer to another job, task or function”.[21]

1. If an employer wishes to rely on the “genuine redundancy” exclusion in section 389 of the Act, then it would ordinarily be expected to adduce evidence, on the question of redeployment, as to whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. Such evidence would usually include the steps taken by the employer to identify other jobs, positions or work which could be performed by the dismissed employee.[22]

1. Whether it would have been reasonable in all the circumstances for the person to be redeployed directs attention to the circumstances which pertained when the person was dismissed.[23]  However, the circumstances leading up to the time the employee was dismissed may, in particular cases (such as where there has been a redeployment period for an employee prior to their dismissal), be relevant to a determination of whether it would have been reasonable in all the circumstances for the employee to have been redeployed.[24]

1. In determining whether redeployment would have been reasonable a number of matters may be relevant, including:

(a)whether there exists a job or position or other work to which the employee can be redeployed;[25]

(b)the nature of any available position;[26]

(c)qualifications required to perform the job;[27]

(d)the employee’s skills, qualifications and experience.  The employee should have the skills and competence required to perform the role to the required standard either immediately or within a reasonable period of retraining;[28] and

(e)the location of the job in relation to the employee’s residence and the remuneration which is offered.[29]

1. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy.[30] 

1. It is important, however, to appreciate that, because there is a requirement to assess the reasonableness of redeployment “in all the circumstances”, it is not possible to establish binding or decision rules concerning the application of section 389(2) of the Act in all cases; the circumstances of each particular case must be considered.[31]

Consideration – redeployment

1. Connected offered Mr Saffioti the role of Sales Professional. Mr Saffioti had the skills and experience to undertake this role, but he decided to reject it because he was focused on a career as a financial adviser. I accept Mr McArthur’s evidence that this was the only available role within Connected’s business at the time Mr Saffioti’s role was made redundant.

1. Cooee Wealth Partners was an associated entity of Connected at the time of Mr Saffioti’s redundancy. This is because the definition of associated entity in s 50AAA of the Corporations Act 2001 includes related bodies corporate[32] and Cooee Wealth Partners and Connected are related bodies corporate within the meaning of s 50 of the Corporations Act because they are wholly owned subsidiaries of Cooee Group Holdings Pty Ltd.

1. I accept Mr Grinsell’s evidence that Cooee Wealth Partners did not have any available roles that Mr Saffioti was suitably qualified or experienced to undertake at the time his role was made redundant. Cooee Wealth Partners could have created a new role for Mr Grinsell in order to redeploy him, but it was not obliged to do so and it decided, reasonably in my view, that its business did not need such a role at the time.

1. I also accept that Cooee Group Holdings Pty Ltd was an associated entity of Connected at the time of Mr Saffioti’s redundancy because it was the holding company of Connected and therefore one of its related bodies corporate within the meaning of s 50 of the Corporations Act. However, I accept Mr Grinsell’s evidence that there were no available roles which could have been suitable for Mr Saffioti in Cooee Group Holdings Pty Ltd at the time of his redundancy.

1. Mr Saffioti contends that the Wealth Partners, whether structured as authorised representatives or corporate authorised representatives of Cooee Wealth Partners, were also associated entities of Connected.[33] I do not need to determine this issue because the evidence given by Mr Grinsell satisfies me that there were no available roles which could have been suitable for Mr Saffioti with any of these Wealth Partners at the time of his redundancy. Further, it was not reasonable in the business circumstances that existed in February 2023 for a new role to be created for Mr Saffioti anywhere in the broader Cooee Wealth group.

Conclusion – redeployment

1. For the reasons given above, I am satisfied that it would not have been reasonable in all the circumstances for Mr Saffioti to have been redeployed within Connected’s enterprise or an enterprise of an associated entity of Connected to a role other than that of Sales Professional. Mr Saffioti chose not to accept that role.

Conclusion – genuine redundancy

1. I have found that Mr Saffioti’s job was no longer required to be performed by anyone because of changes the operational requirements of the business, Connected complied with its consultation obligations, and it would not have been reasonable to redeploy Mr Saffioti in all the circumstances. Accordingly, I am satisfied that Mr Saffioti’s dismissal was a case of genuine redundancy within the meaning of s 389 of the Act. It follows, by reason of s 385(d) of the Act, that Mr Saffioti was not unfairly dismissed and there would be no utility in considering whether Mr Saffioti’s dismissal was consistent with the Small Business Fair Dismissal Code.

1. Because Mr Saffioti’s redundancy was genuine within the meaning of s 389 of the Act, I do not have the power to consider whether his dismissal was unfair in the broader sense. In addition, I do not have jurisdiction to determine whether Mr Saffioti had an entitlement to redundancy pay on the termination of his employment, noting that Connected claims to be a small business employer and therefore exempt from the requirement to pay redundancy pay under s 119 of the Act. Mr Saffioti may pursue a claim for redundancy pay in a court of competent jurisdiction.

1. For the reasons given, I dismiss Mr Saffioti’s application for relief from unfair dismissal.

DEPUTY PRESIDENT

Appearances:

Mr D Saffioti on behalf of himself
Mr S McArthur on behalf of the Respondent

Hearing details:

2023.
Newcastle:
4 July.

[1] Section 389(1)(a) of the Act

[2] Jones v Department of Energy and Minerals (1995) 60 IR 304 (Jones) at 308 per Ryan J; applied in Ulan Coal Mines Limited v Howarth [2010] FWAFB 3488; (2010) 196 IR 32 (Ulan Coal 1) at [17]

[3] Ibid

[4] Dibb v Commissioner of Taxation (2004) 136 FCR 388 at 404-5

[5] Kekeris v A. Hartrodt Australia Pty Ltd[2010] FWA 674 at [27] per Hamberger SDP

[6] Johnston v Blue Circle Southern Cement Pty Ltd (2010) 202 IR 121 at [48]

[7] See paragraph [21] above

[8] Court Book at page 436

[9] Court Book at page 382

[10] Court Book at pages 380-1

[11] Court Book at pages 384 - 424

[12] Court Book at page 372

[13] Court Book at pages 373 and 551

[14] Court Book at page 432

[15] Ibid

[16] Kekeris v A. Hartrodt Australia Pty Ltd[2010] FWA 674 at [27] per Hamberger SDP

[17] Court Book at pages 380-383

[18] Court Book at pages 384-424

[19] Court Book at pages 380-381

[20] Technical and Further Education Commission T/A TAFE NSW v Pykett[2014] FWCFB 714; (2014) 240 IR 130 (TAFE) at [36]

[21] Ibid at [25]

[22] Ibid at [36]-[37]; Teterin & Ors v Resource Pacific Pty Limited t/a Ravensworth Underground Mine[2014] FWCFB 4125; (2014) 244 IR 252 (Teterin) at [28]-[29]

[23] TAFE at [24] & [35]; Ulan Coal Mines Ltd v Honeysett[2010] FWAFB 7578; (2010) 199 IR 363 (Ulan Coal 2) at [28]

[24] Bhalla v Welltech Total Water Management[2014] FWC 7565 at [55]

[25] Ulan Coal2 at [28]

[26] Ibid at [28]

[27] Ibid at [28]

[28] Ibid at [28] & [34]

[29] Ibid at [28]

[30] Ibid at [34]

[31] Teterin at [35]

[32] Section 50AAA(2) of the Corporations Act

[33] Mr Saffioti made submissions on this point at both the hearing and in a written submission sent to the Commission after the hearing. I have had regard to all of these submissions in deciding this case.

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