Davood Alizadeh v Central Queensland University T/A CQUniversity

[2015] FWC 4595

[2015] FWC 4595

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Davood Alizadeh
v
Central Queensland University T/A CQUniversity
(U2015/3536)

COMMISSIONER SIMPSON BRISBANE, 27 JULY 2015

Application for relief from unfair dismissal – Termination a genuine redundancy – Application dismissed.

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mr Davood Alizadeh (“the Applicant”) who alleges that the termination of his employment with Central Queensland University (“the Respondent”) was unfair in accordance with the definition contained within s.385 of the Act.

[2] The application was filed on 2 March 2015 and a conciliation conference was conducted on 24 March 2015 which was not successful in resolving the matter. The matter was listed for arbitration on 16 July 2015.

[3] The Applicant was employed under the terms of the Central Queensland University Enterprise Agreement 2012 (“the Agreement”), and was employed at the Respondent’s Brisbane campus.

[4] The Applicant worked for Campus Management Services (CMS) from 2005 to 1 July 2013, when his employment transferred to the Respondent. He was employed as a Level B, Academic Staff at the Brisbane Campus, to teach both undergraduate and postgraduate courses in accountancy.

[5] The Applicant’s employment was terminated by the Respondent with effect from 20 February 2015 on account of the claimed redundancy of the position held by the Applicant. The Respondent pressed a jurisdictional objection on the grounds that the dismissal was a genuine redundancy. At the hearing the Applicant was represented by Mr Danby of the National Tertiary Education Union (“NTEU”), and the Respondent was represented by Ms Pugsley of the Australian Higher Education Industrial Association. (“AHEIA”) The jurisdictional and substantive matters were heard together. Section 396 of the Act requires that I must decide the jurisdictional objection as a threshold matter.

Jurisdictional Issue

[6] Section 389 reads 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.”

[7] For a termination to constitute a genuine redundancy each of the discrete requirements in s.389(1)(a), s.389(1)(b) and s.389(2) must be satisfied. The onus falls on the Respondent to make out its objection.

Section 389(1)(a)

[8] Section 389(1)(a) requires that “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”.

[9] The Respondent submits that the redundancy of the Applicant’s position arose from a restructure of the Respondent’s School of Business and Law carried out in accordance with the requirements of the Agreement.

[10] It says that the changes in the operational requirements of the Respondent that underpinned the restructure and the resulting redundancies were clearly identified in section 4 on page 2 of the Approved Final Change Proposal dated July 2014 1 as follows:

“There are three related reasons for this restructure. One is the requirements of the TEQSA Act 2011 and the revised standards from the Higher Education Standards Panel (HESP, April 2014). The second factor is that for accounting in particular, the shift in load from [undergraduate] to [postgraduate] level means that the University has no full-time staff in Brisbane and Sydney qualified to teach [postgraduate] students in the Accounting Program. Third, the School has embarked on a program to gain accreditation for the MBA program. Each of the three drivers demands the school increase its level of doctoral qualified staff from approximately 50% to 75%.”

[11] The Respondent submitted that the above changes in operational requirements led to the decision of the Respondent to replace the position held by the Applicant with a position for which the holding of a doctoral qualification is mandatory. The Applicant’s position is therefore redundant notwithstanding that some or all of the duties of the redundant position continue to be performed by other employees. In its submissions the Respondent relied on the Full Bench decision in Ulan Coal Mines Ltd v Howarth.  2The Respondent accepted there is a distinguishing feature in this case as compared to Ulan Coal Mines in that in Ulan Coal fewer jobs were required overall, whereas in this case, at the Brisbane campus the Respondent was replacing a role that did not require a doctoral qualification with a role that did. The Respondent also relies on the Full Bench decision in Mackay Taxi Holdings Ltd T/A Mackay Whitsunday Taxis v Ms Kaye Wilson.3 [2014] FWCFB 1043.

[12] The Full Bench in Mackay Taxi Holdings said as follows in the context of an employer increasing the skill level required of its bookkeeping/accounting responsibilities.

“[34] The job, however was not the same job. The requirement for a formal qualification was not added to a job as if a mere administrative initiative. The qualifications required were reflective of a new and higher level duties which were to be carried out by an appropriately qualified bookkeeper. Given the manner in which the matter proceeded, the Commissioner was not in a position to set aside the Appellant’s evidence in this regard.

[35] The job was therefore a new job, despite the fact that it incorporated many of the former tasks performed by the Respondent.

[36] Contrary to the Commissioner’s findings, we think the changes to the position referred to above are operational changes. That is, they are changes that give effect to a change in the operational focus of the position to the benefit or advantage of the employer (be it to meet governance requirements or to improve efficiency).

[37] Whether the original duties or tasks continue to be required to be performed is not necessarily relevant: it is the operationally – driven changes to the position that need to be made out.

[38] We think this point was made sufficiently clear by the Full Bench in Ulan Coal Mines Limited v Howarth and Others.”

[13] Later in the Mackay Taxis Holdings the Full Bench said as follows:

“[42] On the unexamined and uncontested evidence before the Commissioner, the job as it had been had become a more complex job at the higher end, requiring the exercise of duties by a person who was a qualified bookkeeper, which the Respondent was not. The fact that a body of the former duties associated with the Respondent’s position continued to be required to be performed in whole or in part is beside the point.

[43] The operational objective on the part of the Appellant to rely on the qualified services of a bookkeeper to improve the “capacity of the administration to function at a higher level” brought about a real change and genuine change to the position as it had been performed by the Respondent. This is the kind of change that ordinarily would give rise to a redundancy (where the incumbent does not possess the qualifications to give effect to the operational objective).” (my emphasis)

[14] Finally on the s.389(1)(a) matter the same Full Bench concluded:

[45] “………It is reasonable in such circumstances that an employer, as the bearer of risks, might re-organise the manner in which work is conducted and with what degree of specialism. If this were not the case, significant rigidities would be introduced into business improvement systems.”

[15] The Respondent relied on the evidence of two witnesses, Ms Jacinta Cumming, the Manager, HR Business Improvement, People and Culture, who provided a witness statement 4 and Professor Lee di Milia, Dean, School of Business and Law who provided an initial statement5 and a statement in reply.6

[16] Ms Cummings set out in detail in her written statement the process followed by the University in arriving at a decision including the Initial Change Proposal,  7 and the Approved Final Change Proposal.8 Professor di Milia set out in his statement that he initiated the review of the School’s performance and programs in 2014 and that one outcome of the review resulted in the restructure to build staff capability.

[17] It is clear from the evidence that the main rationale for the change proposal was to build staff capability by increasing the percentage of doctoral qualified staff. Professor di Milia said in his evidence that 50% of doctoral qualified staff in the context of Australian Universities is a very low percentage. 9

[18] Ms Cumming explained that voluntary separation was offered twice to 7 staff whose positions were identified as redundant, and of those, four elected to take voluntary redundancy. It should be noted that positions were selected from Brisbane, Sydney and Melbourne, however at the Brisbane campus only one position was made redundant on the basis of qualifications and that was the position of the Applicant.

[19] Professor di Milia gave evidence that non doctoral staff (such as the Applicant) cannot produce research outcomes (publishing, supervising higher degree students and seeking competitive grants) that attract prestige and income to the University.

[20] Professor di Milia also referred to additional impetus for the change proposal being triggered by, firstly the need to have students instructed by appropriately qualified staff, and secondly a decision by the school to seek international accreditation of its MBA program.

[21] Professor di Milia also referred in his statement to a large decline in accounting students at the under-graduate level and an increase in post-graduate numbers. 10 Professor di Milia refuted in his statement the Applicant’s claim that his position still continues because the University had advertised for positions at Level B, which was the same classification level as the Applicant. It was Professor di Milia’s evidence that the University had advertised clearly seeking doctoral qualified staff only. He explained that the University had now made an appointment to the Brisbane campus and the appointee holds a doctoral qualification. 11

[22] In his reply statement Professor di Milia said that Dr Sally Chaplin was hired as a direct replacement for the Applicant, and therefore there are the same numbers of academic staff in Brisbane in Accounting as before the restructure. He said Dr Chaplin had taught post graduate in Term 1, has published and is publishing, and is supervising a higher degree student. 12 Oral evidence clarified that the appointment was not made at Level B, as had been said previously, but was in fact made at Level C, a higher pay level under the relevant enterprise agreement.

[23] Professor di Milia said that it is not correct that the University had improperly assigned the work formerly done by the Applicant to casual staff. He said there has always been a requirement for some work to be done by casuals, depending on demand, which is unpredictable, but that the Applicant’s position had been replaced by an appointee with a doctoral qualification. 13 In his reply statement Professor di Milia said in relation to the qualifications of casual staff, as at July 2015 there were 11 doctorally- qualified casuals in the School, in comparison to 7 as at July 2014. He also said the existing proportion of casual staff at the time of the restructure resulted from the transfer of Campus Management Services staff into direct employment with the University, and since the transfer the School has been working to reduce its use of casual staff. 14

[24] Professor di Milia also said that since the restructure the School employed 12 new doctorally-qualified full time staff across its campuses and this has markedly reduced the School’s reliance on casuals.  15

[25] The Applicant contends that in implementing re-organisation of work, the Respondent must comply with the requirements of the Agreement.

[26] The Applicant asserted that a substantial proportion of teaching staff in Accounting (both post graduate and undergraduate) did not have a relevant PhD.  16 The Applicant asserted that the casuals undertaking that work were, and are being used in contravention of clause 12.3.2 of the Agreement, which describes circumstances where it is appropriate to engage casual academic staff.

[27] The Applicant also referred to Schedule 7 of the Agreement, and the position description for a Lecturer at Level B, which it said specifies that Academics appointed at that level need not necessarily hold a doctoral qualification.

[28] My understanding of at least part of the Applicant’s argument, is that by the Respondent’s act of deciding that it required a doctoral qualification for lecturing roles in the School of Business and Law, this decision attempted to impose a change which sat outside its managerial prerogative because such a mandatory requirement was inconsistent with the Agreement which had no such requirement. This argument is based on the fact that the Agreement incorporated in its classification structure lecturing positions without doctoral qualifications. It was the Applicants argument, that given the terms of the Agreement, the mandatory requirement for a doctoral qualification could not be a change in the operational requirements of the employer’s enterprise as contemplated by s.389(1)(a).

[29] The Applicant also asserted the decision to require doctoral qualifications was an extra claim and was in breach of the “no further claims” provision at clause 4.2 of the Agreement.

[30] The Applicant also referred in its submissions to clause 28 of the Agreement dealing with job security.

[31] The Applicant further argued that the Respondents reliance in its decision on the requirements of the TEQSA (the Tertiary Education Quality and Standards Agency is an independent statutory authority established in 2011 responsible for registration and performance evaluation of higher education providers) and the HESF (“Higher Education Standards Framework”) as a rationale for making doctoral qualifications mandatory in the School of School of Business and Law is misplaced as TEQSA’s requirements allow Universities to have regard to equivalence of professional experience to academic qualifications, which could be through relevant teaching experience which it argues the Applicant possessed. It was also argued for the Applicant that the Respondent did not have a policy regarding this matter as it should have done. A statement from Paul Kniest, the Coordinator of the NTEU Policy and Research Unit was admitted into evidence. The statement includes that the revised HESF has rephrased “equivalent professional experience” to now read “relevant academic or professional or practical based experience or expertise”.

[32] The Respondent submitted that the TEQSA Act 2011 and the revised standards from the Higher Education Standards Panel (HESP) set out a number of standards to be achieved by 1 January 2015 (the ‘qualifications standard), and that it is clear from the Approved Final Change Proposal that it had contemplated the issue of ‘equivalent professional experience’ in making its decision. The Respondent provided a copy of a document headed “TEQSA Guidance Note: Equivalence of professional experience to academic qualifications.” The Respondent drew attention to language in the document which indicated that the guidance note is designed to assist providers (i.e. the Respondent) when developing and reviewing a formal approach to determining, where required, the equivalence of professional experience of current and/or prospective academic staff who do not hold a qualification at least one AQF level higher than the course of study being (or proposed to be) taught.

[33] I have considered all of the evidence and submissions going to the s.389(1)(a) matter. I am satisfied that, as was the case in the Mackay Taxis matter, the operational objectives on the part of the University as set out in its Final Change Proposal and as implemented by its decision brought about a real change and genuine change to the position as it had been performed by the Applicant, and the change did give rise to a redundancy as the Applicant did not possess the qualifications to give effect to the operational objective.

[34] I am not persuaded that the Respondent’s decision is somehow inconsistent with the revised standards of the HESP. It is important to note, as was emphasised by the Respondent, TEQSA compliance was only one of the three objectives identified in the Change Proposal. It was not in dispute that because the Applicant did not possess a doctoral qualification he could not perform some of the functions that an incumbent with a PhD could, for example post graduate supervision and research which would support the objective of achieving international accreditation of the MBA program.

[35] I do not agree with the submission of the Applicant that the decision of the Respondent to require doctoral qualifications for lecturing roles in the School is inconsistent with its Agreement. The position descriptions in schedule 7 of the Agreement provide for various pay levels that describe the scope, accountability, duties and skills of academic roles ranging from Level A to E and include descriptions of roles that either may or may not include doctoral qualifications. The undisputed evidence was that there was only one permanent full time lecturing role at the Brisbane campus in the School, and that was the Applicant’s former role. Following the termination of the Applicant one new full time position was filled by Dr Sally Chaplin who holds a doctoral qualification. It follows logically that Dr Chaplin was hired as a direct replacement for the Applicant. Dr Chapin was employed at Level C, the level above the Applicant.

[36] I also reject the assertion of the Applicant that the Respondent’s use of casual lecturers to undertake teaching at the Brisbane Campus of CQU, and who do not have doctoral qualifications could somehow be a basis to argue its decision did not fall within organisational change as contemplated by s.389(1)(a). I am not satisfied that the question of whether the employment of casual lecturers was in compliance with clause 12.3.2 of the Agreement is relevant to the s.389(1)(a) issue before me, however I add it does not appear on the limited material concerning that claim that the employment practices concerning casual lecturers in the School of Business and Law at the Brisbane campus was inconsistent with the Agreement in the light of the evidence.

[37] While I not satisfied that the organisational change that gave rise to the redundancy amounted to an extra claim as contemplated by Clause 4.2, or was inconsistent with Clause 28 (Job Security), even if it were to be the case, a claim of that nature could have been the subject of a different kind of application, either in this jurisdiction or another, and does not alter the position that the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the School of Business and Law.

Section 389(1)(b)

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

[39] The Respondent submitted that the relevant consultation requirements are set out in Clause 26 (Introduction of Change) of the Agreement. It is my view the Respondent was also required to consult in accordance with Clause 29 (Redundancy) as that clause also obliged the Respondent to consult about redundancy.

[40] The Respondent undertook extensive consultation, as summarised in the timetable set out in section 6 on page 11 of the Approved Final Change Proposal. This consultation included:

● 27 June 2014: Initial Change Proposal distributed to affected employees, the Joint Consultative Committee and all of the Respondent’s employees for feedback by 7 July 2014

● 2 July 2014: Meeting with affected employees and their representatives

● 3 July 2014: Meeting with the Joint Consultative Committee

● 17 July 2014: Formal Change Proposal distributed to affected employees for feedback by 23 July 2014.

[41] The consultation undertaken by the Respondent included consideration of measures aimed at averting forced retrenchment of employees holding redundant positions, including voluntary separation arrangements.

[42] The Applicant sought a review of the process leading to the decision to declare his position redundant. The Review Committee concluded that the process leading to the decision to declare the Applicant’s position redundant was conducted appropriately by the Respondent. 17

[43] The Applicant argues that consultation cannot be the test for the applicability of changes resulting from contraventions of the Agreement. I refer to my views set out above at paragraph 37 above. This submission is not directly related to the test in s.389(1)(b).

[44] While the Applicant noted that there was consultation about many matters, it submitted that the central issue that staff without doctoral qualifications would not be allocated to teach postgraduate students was never a matter that staff or the Union could influence. In oral submissions the Applicant indicated its primary attack on the Respondents failure to consult, was its failure to meet its obligations under Clause 29.2 (Review) of the Agreement, and specifically its conduct of the review when at that time it had failed to implement a policy regarding equivalence of professional experience.

[45] This submission misconceives the obligations of the Respondent in connection with s.389(1)(b). Section 389(1)(b) does not require the Applicant to have satisfied a requirement in connection with TEQSA or the HESP. In that regard I note the Respondent submitted it had regard to the matter of equivalence of experience in any event, and was taking steps to adopt a policy on the issue. Section 389(1)(b) requires the Respondent to consult about the redundancy in accordance with its obligations under the Agreement. I am satisfied from the evidence of Ms Cumming and Professor di Milia that the Respondent followed each of the steps it was required to in accordance with consultation about redundancy as set out in the Agreement. In regard to the Applicant’s submission with regard to the Clause 29.2, the Review Committee Report clearly supports the conclusion that the Respondent fulfilled its obligations in regard to that Clause.

Section 389(2)

[46] Section 389(2) provides that 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.

[47] The Applicant submits that the Respondent only needed to assign undergraduate teaching that was being undertaken by casuals in order to maintain the Applicant’s employment. The Applicant further submits that the Respondent continues to use casual staff without doctoral qualifications to replace him in the teaching of postgraduate courses.

[48] Mr Robinson, a Lecturer in Law at the Brisbane campus gave evidence that the teaching rosters appear to show that the University has been using casuals to teach substantial portions of the teaching work into Accountancy in Brisbane. Mr Robinson gave evidence that at the time that the Applicant was made redundant, there has always been enough work in Brisbane teaching Accountancy that was being done by casuals and that there is enough work in Brisbane teaching Accountancy currently being undertaken by casuals to continue the employment of the Applicant.  18

[49] The Respondent submits at the time of giving notice of termination of employment on 23 October 2014, there were no suitable positions available to which the Applicant could have been redeployed. This included academic and non-academic positions at all geographic locations of the Respondent and associated entities of the Respondent. Ms Cumming said neither the Applicant nor any representative of his at any time identified any specific position within either the University or an associated entity into which he could have been transferred.  19

[50] Professor Di Milia said that there will always be a requirement for some work to be done by casuals, depending on demand, which is unpredictable,  20and that it may be the case that the School is using some (casual) non-doctorally qualified staff because they have not been successful in recruiting additional staff with doctoral qualifications. He said since the restructure the School has employed 12 new doctorally qualified full time staff across its campuses and this has markedly reduced the reliance on casuals. 21

[51] It is clear from the evidence that there is only one full time teaching post at the Brisbane campus and that is occupied by Dr Chaplin. The only other roles are casual teaching roles. The evidence of Professor Di Milla is that the School is gradually increasing the number of PhD qualified casual lecturers, and decreasing the number of non doctorally qualified casual lecturers, and casual work depends on demand and is unpredictable. The Applicants submission appears to be that the Respondent, at the time of termination could have and should have created a new position out of the casual hours in the roster and transferred the Applicant into that position. Section 389(2) does not require an employer to go to such lengths as creating a new position. Section 389(2) requires an employer to assess what alternative positions in existence and available at the time could have been offered to the Applicant at the time of termination as an alternative to termination. The evidence supports a conclusion that the Respondent took appropriate steps to satisfy itself that no such redeployment opportunities existed, and on that basis I am satisfied the requirements of s.389(2) are satisfied.

[52] Having considered all of the evidence I am satisfied that this is case of genuine redundancy and on that basis the application must be dismissed.

COMMISSIONER

Appearances:

Mr W Danby (NTEU) for the Applicant.

Ms C Pugsley (AHEIA) for the Respondent.

Hearing details:

2015.

Brisbane:

16 July

 1   Attachment 1 Approved Final Change Proposal section 4 page 2

 2   Ulan Coal Mines Ltd v Howarth (2010) 169 IR 32 [15-20].

 3   Mackay Taxi Holdings Ltd T/A Mackay Whitsunday Taxis v Ms Kaye Wilson[2014] FWCFB 1043.

 4   Exhibit 5 Witness Statement Ms Jacinta Cumming HR Business Improvement, dated 25 May 2015

 5   Exhibit 6 Witness Statement Professor Lee Di Milia dated 25 May 2015

 6   Exhibit 7 Witness Statement in Reply Professor Lee Di Milia dated 30 June 2015

 7   Exhibit 5 Witness Statement Ms Jacinta Cumming HR Business Improvement, dated 25 May 2015 attachment 1

 8   Exhibit 5 Witness Statement Ms Jacinta Cumming HR Business Improvement, dated 25 May 2015 attachment 2

 9   Exhibit 6 Witness Statement Professor Lee Di Milia dated 25 May 2015 paragraph 3

 10   Exhibit 6 Witness Statement Professor Lee Di Milia dated 25 May 2015 paragraph 7

 11   Exhibit 6 Witness Statement Professor Lee Di Milia dated 25 May 2015 paragraph 10

 12   Exhibit 7 Witness Statement in Reply Professor Lee Di Milia dated 30 June 2015 paragraph 2

 13   Exhibit 6 Witness Statement Professor Lee Di Milia dated 25 May 2015 paragraph 11

 14   Exhibit 7 Witness Statement in Reply Professor Lee Di Milia dated 30 June 2015 paragraph 9

 15   Exhibit 7 Witness Statement in Reply Professor Lee Di Milia dated 30 June 2015 paragraph 10

 16   Exhibit 3 Outline of submissions dated 9 June 2015 paragraph 7

 17   Attachment 2 Review Committee Report dated 23 October 2014.

 18   Exhibit 9 Statement of Peter Michael Robinson dated 9 June 2015 paragraphs 16 to 18

 19   Exhibit 5 Witness Statement Ms Jacinta Cumming HR Business Improvement, dated 25 May 2015 paragraph 12

 20   Exhibit 6 Witness Statement Professor Lee Di Milia dated 25 May 2015 paragraph 11

 21   Exhibit 7 Witness Statement in Reply Professor Lee Di Milia dated 30 June 2015 paragraph 10

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