Kenneth Pinto v Further Ed Pty Ltd t/a Victorian Institute of Technology Pty Ltd
[2025] FWC 1393
•20 MAY 2025
| [2025] FWC 1393 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kenneth Pinto
v
Further Ed Pty Ltd t/a Victorian Institute of Technology Pty Ltd
(U2024/9261)
| COMMISSIONER YILMAZ | MELBOURNE, 20 MAY 2025 |
Application for relief from unfair dismissal - whether genuine redundancy – no genuine redundancy – dismissal was harsh, unjust or unreasonable – compensation ordered
On 8 August 2024, Mr Kenneth Pinto (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he was unfairly dismissed from his employment with Further Ed Pty Ltd T/A Victorian Institute of Technology (the Respondent or Further Ed or VIT).
The Victorian Institute of Technology is a private higher educational institution and registered training provider delivering VET and ELICOS programs across campuses in Melbourne, Geelong, Sydney and Adelaide. Mr Pinto was employed by Further Ed, the administrative division of VIT.
Mr Pinto submits that his redundancy is not genuine but rather his dismissal is in response to his request for a wage review and two applications made by him in the Fair Work Commission against his employer. In addition, Mr Pinto submits that his dismissal was unfair. He commenced employment on 18 July 2022 as an Accounts Receivable Manager and was made redundant on 19 July 2024.
At the hearing Mr Pinto gave sworn evidence and the Respondent called two witnesses:
Professor Chenicheri Sid Nair Academic Dean of Learning at Victorian Institute of Technology.
Mr Raj Narayanan, CEO of Further Ed Pty Ltd and Head of Vocational Studies at Victorian Institute of Technology.
Mr Pinto is seeking compensation.
It is not in dispute that Mr Pinto’s application satisfies the requirement of minimum employment period and coverage under a Modern Award pursuant to s.382 of the Act. Other than the Respondent’s position that the dismissal is a genuine redundancy there are no other relevant jurisdictional matters.
Mr Pinto was self-represented, and the Respondent was granted leave to be legally represented by Velocity Legal.
Submissions and evidence of the Applicant
Mr Pinto was employed full-time as the Accounts Receivable (AR) Manager subject to the Education Services (Post Secondary Education) Award 2020 [MA000075] (the Award).[1] Mr Pinto gave evidence that he supervised a junior employee based in the Melbourne Office and two finance staff based in India (an accounts receivable officer and a team leader) that provided supplementary AR assistance.[2] Mr Pinto reported to the Chief Financial Officer (CFO) as his manager.[3] During the hearing Mr Pinto gave evidence that at no time did he directly or indirectly report to either Professor Nair or Mr Narayanan. He gave evidence that Professor Nair was the Dean of VIT and Mr Narayanin was responsible for the Vocational Education and Training arm.[4] The Respondent’s witness evidence did not contest this evidence.
Mr Pinto submits that throughout his employment there was no performance appraisal or adjustment to his pay. On 30 January 2024, Mr Pinto was asked to complete a performance appraisal form, this was completed covering the period 18 July 2022 to 30 January 2024. No feedback was provided on completion of the appraisal form and when Mr Pinto followed up with his manager, Mr Jacob Mohan, the CFO, he was informed that everything is good if you don’t hear from us.[5] Mr Pinto submits that during his employment he was bullied by his manager and despite his complaints no action was taken. He further submits that he was underpaid against the minimum rate under the Award.
On 10 May 2024, Mr Pinto gave evidence that he emailed the CEO of VIT Mr Nagarjun (also referred to as Arjun) Surapaneni requesting a salary increase.[6] A copy of the email was tendered into evidence.[7] He submits that he received no response from his employer.
Mr Pinto submits that on 20 May 2024, he became aware of an advertisement for a position of Accounts Receivable Manager on the jobsite Naukri based in India. Mr Pinto contends that the job advert posted around 17 May 2024 reflected his job description plus the additional duties that he included in an email sent through to his manager on 15 May 2024 who was in India visiting the offshore office, Vivenns Global Private Ltd, at the time the advert was published.[8] Mr Pinto alleges that the offshore office is the holding company of Further Ed and VIT. The Respondent’s witness evidence confirms they are related entities, and I observe a further company Ecommsys Pty Ltd is related and may be the holding company.[9]
Mr Pinto filed a general protections application not involving dismissal in the Commission on 10 June 2024 and an application for an order to stop bulling at work on 24 June 2024. Having observed the correspondence between Mr Pinto and his manager tendered into evidence one can reasonably draw the conclusion that the relationship was strained between the two.[10]
On around 18 June 2024 Mr Satya Indukuri the chief of Staff,[11] sent an email to staff regarding a “staff meeting” on 12 June 2024 where the CEO of VIT allegedly announced impending staff cuts. The staff email advises that further to messages at prior staff meetings there is no good news with the Government’s decision to cut immigration and impose caps on international student intakes. It further states that the Bill for the changes has passed the House of Representatives and is expected to be passed by the Senate. The email details the expectation that the sector will be affected requiring deep cuts in spending, staff numbers and increasing efficiencies. The email does not indicate when the cuts will take place but does suggest that VIT needs to prepare for the worst and 2025 will be a horrible year for international education. This email provides no plan or definitive position other than stating that it has already cut some VET courses, and it will review each department.[12] Mr Pinto submits that there was no prior email communication regarding impending staff cuts.
On the following day[13] Mr Pinto submits that he received an email from Mohit Sharma of VIT that the student intake for February- March 2024 sat at 1146 which was an increase from 711 for July 2023.[14] These numbers reflect students in the Bachelor of Information Technology and Systems, Master of Information and Technology Systems and MBA programs. Mr Pinto contends that the evidence of student intake numbers did not support the reasons for the proposed staff cuts announced in the email of 18 June 2024. Mr Pinto submits that the evidence of student numbers shows no basis for reducing staff as VIT achieved maximum capacity and students were enrolled into courses of 2 and 3 year durations. Despite changes in student numbers in VET, as some courses were cancelled and students withdrew for various reasons including because of the quality of the course, Mr Pinto contends that the overall student numbers were healthy. He added that the Bill relied on by the Respondent alleging serious impact, was never passed in Parliament.[15]
In addition, on 24 June 2024 Mr Pinto filed an application seeking an order to stop workplace bullying. Mr Pinto submits that he was dismissed prior to the scheduled conciliation conference in respect of the general protections application and prior to the listing of the bullying application. As such, these applications were discontinued.
On 2 July 2024 Mr Pinto received an email advising that VIT entered phase two of its restructure, and that staff would be informed of the outcome by the end of July 2024.[16] This email from the Chief of Staff on behalf of the CEO, states that VIT has completed phase one as announced in the June meeting. The email of June made no reference to phases for a restructure, however, the email of 2 July states that phase one involved the restructure of academic staff.
On 15 July Mr Pinto received an email from the Assistant Manager HR (based in India but signed off as VIT) bringing to his attention a letter and inviting him to a consultation meeting with Raj, the CEO of Further Ed on 17 July from 1.30-2.00pm. The email allows for a 30 min meeting to discuss the letter which deals with downsizing of staff that affects him.[17]
The attached letter addressed to Mr Pinto titled “Notice of Major Workplace Change”[18] states that the Government policy is to reduce student visas and this decision impacts 95% of VIT’s business. The letter refers to identified opportunities to reduce business costs, which includes making certain positions redundant if alternative employment with its related enterprises is unavailable. However, the letter advises that no alternative employment options are available. The letter proposes a “consultation” meeting where Mr Pinto may be accompanied by a support person and he may provide comments in writing prior to the scheduled meeting. While this letter refers to changes in government policy, which are yet to be introduced, it states that there has been a reduction in new student enrolments in VIT. It further states that as Further Ed services to VIT make up 95% of its workload, changes to staffing are inevitable. The letter refers to the “Proposed Restructure”, yet this is not explained with any further information nor defined. No proposed new structure is offered. I also observe that this same letter asks Mr Pinto to provide his comments by 11 July 2024, while the letter is dated 15 July. A proposed timetable is attached noting the consultation meeting at noon of 17 July and the decision is to be made on 18 July by 9.00am but Mr Pinto is to be advised of the outcome around 5pm. It is unclear why Mr Pinto is then asked to provide by 11am 19 July any final thoughts or proposals before the termination at 5pm on the same day.
On 16 July 2024 Mr Pinto wrote to Raj Narayanan, the CEO of Further Ed Pty Ltd including HR (during the hearing it was disclosed that HR is comprised of administrative staff based in India). In this email Mr Pinto rejects the option of being placed in a casual pool that does not exist and disputes there are no roles for him as the Finance team is short staffed and his role was advertised in May. He accuses the Respondent of making him redundant because he asked for a pay rise and sought back payment of his alleged underpayment of minimum award rates and superannuation. In the same email Mr Pinto identifies his skills which he says are senior to those in his team, and it is him that identifies financial savings and corrections and not his more junior staff member. He does indicate that the team is short staffed in the context of workload and when considering the number of student enrolments, while he acknowledges the negative impact on the VET business, he asserts the numbers are still healthier than when he commenced two years earlier.[19]
Without notice to Mr Pinto, Professor Sid Nair and another VIT academic attended the “consultation” meeting with the Further Ed CEO of 17 July. Mr Pinto objected to the additional attendees on the basis that he was informed and was expecting to solely meet with the Further Ed CEO. It was on this understanding that Mr Pinto went to the meeting alone.[20] Despite his objection to an expanded group, the meeting progressed with Mr Pinto, Mr Narayanan and Professor Nair, with the other academic leaving the meeting. Mr Pinto gave evidence that it appeared to him that the decision was made to dismiss him and despite his correspondence seeking a review of the decision, he formed the view that his written feedback and the “consultation” meeting made no impact on the Respondent’s decision. Mr Pinto gave evidence that the extent of the consultation by the Respondent was no more than “we have read your comments.” He says that he received no feedback to his questions.[21] Mr Pinto submits that there is a recording of the meeting by the Respondent, but this was not tendered into evidence, nor a copy given to him despite his requests.[22]
Mr Pinto further gave evidence of his alleged underpayment and what he describes as both a lack of awareness of his award coverage nor any interest from the Respondent to follow up on his inquiries. Mr Pinto referred to his underpayment claim during the meeting of 17 July 2024, and he says both the Further Ed CEO and Professor Nair showed no interest to engage on the issue. Evidence between the witnesses was conflicted over what and how it was said, but Mr Pinto nevertheless agreed to send information on his claim to correct his underpayments following the meeting.[23] Professor Nair acknowledged receipt of the material on behalf of the recipients on July 18 at 11.35am. Mr Pinto’s email was addressed to Professor Nair, together with the Further Ed CEO and HR.[24] There is no evidence of a response by the Respondent to the alleged underpayment claim. During the hearing the Respondent submits it formed the view that there was no underpayment and did not think it necessary to reply.
Mr Pinto submits that he was paid $37.96 per hour whereas the correct classification under the Award was level 7 which provided for the minimum pay rate of $40.80 per hour for the period of 1 July 2023 to 30 June 2024 and $42.33 from 1 July 2024. I observe that the Respondent did not formally respond to the claim that Mr Pinto was incorrectly classified under the Award. [25]
On 18 July 2024 Mr Pinto received a letter from VIT advising of its intention to proceed with the proposed restructure of Further Ed as referenced in the letter of 15 July 2024. No proposed restructure was ever disclosed either on 15 July or 18 July. Evidently the letter states that the discussion on the day earlier has been considered and it nevertheless made the decision to make Mr Pinto’s position redundant. Unless redeployed, Mr Pinto will be dismissed at 5pm on 19 July 2024. The letter refers to the casual pool of which there are no positions and clearly states there are no alternative roles within any of the related business entities.[26] This same letter asks for final thoughts or suggestions (which appear futile considering the decision to make the position redundant). On the following day and as advised, Mr Pinto received his letter of termination with employment terminated effective immediately.[27] Each of the letters are simply signed by an “Authorised Delegate”. There is no identifier as to who this is. However, while giving evidence, the Further Ed CEO stated that his signature appeared on the letters dated 15 and 18 July 2024. I observe the letter of termination has the identical signature; therefore, I conclude that the CEO of Further Ed signed each of the three letters.
Mr Pinto submits that the “redundancy” process was completed quickly within 4 days, without genuine consultation. He submits that the Respondent failed to afford him the opportunity to provide feedback that was genuinely considered and there was an absence of exploration of meaningful redeployment opportunities.
Submissions and evidence of the Respondent
The Respondent filed a Form F3[28] in response to the application and noted Professor Nair as the contact, yet he is the Executive/ Academic Dean of Learning, Teaching and Student Experience and Dean of Sydney Campus. Mr Pinto reported directly to the CFO who reported into the VIT CEO. The Respondent did not call evidence from the CFO. Nevertheless, the CEO of Further Ed Pty Ltd did attend to give evidence. However, the CEO says he has no responsibility for any financial decision, that those decisions lie with the group CEO.[29]
The Respondent submits that Mr Pinto’s position was terminated on the basis of genuine redundancy. Mr Pinto was employed by Further Ed Pty Ltd which provided support services to “several Registered Training Organisations including”[30] the college – the Victorian Institute of Technology (VIT). During proceedings, it became apparent that the common directors (Mr Nagarjun Surapaneni and his wife) also had further related entities including an offshore business in India that performed duties in connection with VIT (HR and finance). Domain names used among the staff in their communications included vit.edu.au, e-commsys.com.au, furthered.com.au and surapaneni.org. Both Further Ed and VIT are based in Melbourne and are part of a larger group of companies in Australia and India.
The Respondent submits that in late 2023, the Government announced a new migration strategy for Australia that had a likely impact on international student numbers. It submits that by February 2024 it experienced a “tightening of visa approvals leading to an increased rejection of international students” and a decline in student enrolments at VIT.[31] On 16 May 2024, VIT submits that a Bill[32] was introduced that provides the Education Minister with powers to set a maximum number of international student enrolments for courses and providers. As a result of this likely change and impact on VIT, it decided to downsize its business to reduce costs.
It submits that on 15 March 2024 Mr Nagarjun Surapaneni, the CEO of VIT and the group CEO (Group CEO) first raised the rejection of international student Visas to staff, and on 3 April 2024 he raised student Visa rejections and student withdrawals. It submits that on 3 April 2024 he announced to staff that VIT would implement cost cutting measures. VIT submits that on 4 May 2024 the CEO “observed” all providers servicing the international student market were struggling for new enrolments.[33]
It is submitted that on 12 June 2024 that the Group CEO announced the new student cap would require significant staff cuts and every part of the operation would be reviewed. It is submitted that in June 2024 that VIT commenced an organisation wide restructure.[34] On 15 July Mr Pinto was advised that his role was likely to be impacted.
Mr Pinto was subsequently advised that his role was selected for redundancy on the basis that the position was no longer required. VIT submits that 43 roles were made redundant across the campuses in three states.[35] Across 4 campuses in Victoria, New South Wales and South Australia, VIT made 7 full-time lecturers redundant, 28 part-time lecturers redundant or were not replaced, less work was allocated to casual lecturers and 7 roles in student support and front of office positions were made redundant.[36]
VIT contends that the Commission does not have jurisdiction to determine Mr Pinto’s unfair dismissal application as the dismissal was a genuine redundancy.
VIT submits that it complied with the requirements of consultation under the relevant modern Award, therefore satisfying s.389(1)(b) of the Act.
VIT further submits that it complied with s.389(1)(c) on the basis that it considered redeployment but there were no redeployment options to put to Mr Pinto.
In relation to Mr Pinto’s submissions regarding the position that was advertised in India reflecting his job, VIT say that Vivenns Global is a third-party company that provides outsourcing administrative services to VIT and other organisations.[37] VIT submits that it has no capacity to influence its hiring and the issue was that Vivenns copied a VIT job description for its own recruitment and not for VIT. Further VIT submit that Mr Pinto’s role was not outsourced to Vivenns Global or elsewhere.
VIT submits that by September 2024, the Department of Employment and Workplace Relations (DEWR) forwarded “indicative new overseas student commencement limits for 2025” regarding VET students (emphasis added). VIT has also since received indicative international student allocations for higher education students.[38]
VIT presented unsigned statements and witness evidence from Professor Nair, Executive Dean of VIT and Raj Narayanan CEO of Further Ed and Head of Vocational Studies at VIT. The evidence from both is summarised below.
Professor Nair is based in Sydney due to holding the position of Dean of the Sydney Campus. He gave evidence that as part of the leadership team he regularly consulted with the Group CEO (common director of VIT and Further Ed) and Mr Narayanan (Further Ed CEO). He says that he is the VIT Melbourne Campus Manager and Further Ed is located in the same location. He gave evidence that Further Ed employs approximately 40 staff providing administration, marketing and finance services, while VIT employs 100, mostly teachers.[39]
Professor Nair gave evidence that he was aware that Mr Pinto asked for a pay rise. The Group CEO merely passed on the email to the CFO and Mr Pinto was not given a response. He says that the Respondent was facing challenges at the time of the request. Professor Nair also says that he responded to Mr Pinto’s general protections and bullying claims filed in the Commission. In respect of the advertisement of Mr Pinto’s job, Professor Nair says that while work is outsourced to Vivenns Global, it is a separate entity at arm’s length and the Respondent does not influence its hiring practices. He describes the advert as an “unfortunate oversight” where they copied the VIT job description.[40] Professor Nair was an unreliable witness, his oral evidence was that there were deteriorating conditions, but he did not provide direct evidence, much was hearsay. Professor Nair was not the decision maker[41] rather the decision to make Mr Pinto’s role redundant was made by the Group CEO.[42] Professor Nair gave no reliable evidence to justify the selection of the AR Manager role for redundancy nor did he provide any evidence of consultation as required by the relevant Award.[43] Further Professor Nair evidently lacked awareness of the size and breadth of the business and its legal obligations in respect to redundancy.[44]
Professor Nair’s statement repeats the material in the Form F3 and outline of submissions regarding the alleged challenges from the Government’s announcement regarding the international student market, the staff meetings and the redundancies. Attached to his written statement were statements alleged to have been prepared by the Group CEO to present to staff. [45] However, this could not be verified. Professor Nair simply said the statements were “shared with him.” There was no evidence of how and by whom they were made and there was no evidence that they were contemporaneous notes by the Group CEO. Consequently, they do not hold any weight in these proceedings.
Professor Nair described three stages of redundancies: full-time lecturers, part-time lecturers and lastly administrative staff at Further Ed. Professor Nair describes the letter dated 15 July 2024 given to Mr Pinto notifying him that his position may be redundant because of the restructure. The definite decision was to implement a restructure by shedding jobs. The reason for the restructure was the Government policy announcement intended to reduce immigration and tighten Visa approvals affecting the international student market. The letter makes clear that the position may be redundant unless an alternative role can be identified, and if available. The letter further explains that no positions are available for redeployment. A “consultation” meeting is scheduled for 16 July 2024. Even though Mr Pinto was encouraged to write by 11 July, he did so on 16 July with his comments and concerns and the meeting occurred on 17 July. Professor Nair states that Mr Pinto was agitated, particularly because there were 3 representatives for the Respondent, 2 of which were unannounced prior to the meeting.
Professor Nair appeared critical of Mr Pinto for being agitated and for insisting on the importance of his role, for raising his request to review his wage and when questioned if he had anything further, Mr Pinto raised the two complaints lodged in the Commission.[46] From this evidence no explanations were given to Mr Pinto as to why his position was selected, nor any reasonable explanation for failure to respond to the requested wage review. It appears that despite Mr Pinto raising these issues as potential reasons for his selection, the Respondent ignored these concerns entirely rather than genuinely offering any information to allay his concerns. Professor Nair gave evidence that he discussed the meeting with the Group CEO and it was determined to issue the next letter to execute the redundancy.[47]
Professor Nair attached Mr Pinto’s resume of 2022[48] when he applied for his role to demonstrate that his qualifications were unsuitable for redeployment. Interestingly, no effort was made to inquire or verify that the resume was complete or up to date with Mr Pinto. There was no evidence from Professor Nair that the meeting was a genuine consultation, rather it was a meeting for Mr Pinto to simply raise his concerns and make comments that he may have thought relevant to the considerations of his employer. Professor Nair lacked an understanding of Mr Pinto’s role and the duties of the staff in AR.[49]
Also attached to Professor Nair’s statement was a letter from the DEWR Secretary dated 6 September 2024 advising of the announcement to implement an annual plan of overseas student commencements and indicative provider limits for 2025.[50] This letter clarifies that provider limits, yet to be finalised for new commencements, are subject to passage of the proposed Bill. This letter further states that certain students are exempted from the new arrangements and does not affect students from the domestic market or current students studying at the institution. Professor Nair did not lead any evidence supporting his statements reasoning the downsizing or selection of Mr Pinto’s role in the restructure. While he stated that there were challenges, there was no evidence of impact requiring the decision to restructure, particularly in light of the government policy change that was scheduled for 2025 and was still dependent on the passage of the Bill. Further the DEWR Secretary correspondence was not tendered in the context of any evident impact on the Respondent. The letter refers to impending indicative number of students but the impact on current students and expected students outsde the proposed DEWR changes were unclear. In the absence of reliable evidence, no objective assessment can be made that there was a direct impact on new student enrolments causing the redundancy of Mr Pinto. The Respondent simply relied on the oral evidence of Professor Nair,[51] the alleged statement of the Group CEO at the 12 June 2024 staff meeting and correspondence given to Mr Pinto. There was no evidence to reason the selection of Mr Pinto’s position (the senior and more skilled of 2 positions in finance) nor any evidence to contest Mr Pinto’s evidence of workload and insufficient staffing to meet the workload.
An unsigned statement from Mr Raj Narayanan, CEO of Further Ed[52] was also tendered. In his statement he says that Mr Surapaneni is the Director of Further Ed, and after him he is the most senior staff member of Further Ed.[53] As CEO and the most senior staff member, Mr Narayanan nevertheless states that he was not involved in selecting the 7 staff selected for redundancy.[54] Further, despite Mr Pinto sending his response to the letter informing him of his inevitable redundancy,[55] Mr Narayanan did not respond. Rather, Mr Narayanan simply sent the correspondence to Professor Nair who according to both witnesses took the lead to manage the process in accordance with the Group CEO directions. Neither the statement or witness evidence revealed any consultation or effort to respond to Mr Pinto’s concerns or queries. Mr Narayanan attached to his statement the email dated 16 July 2024 from Mr Pinto in which he challenged the genuineness of the casual pool option presented to him, as the pool held no positions and would unlikely have any positions due to the completion of VET courses. Mr Pinto’s letter further raises ulterior motives for his selection, the recently advertised position in India, his request to address his alleged underpayment and the strong enrolment numbers compared to when he commenced employment, particularly in the Bachelor and Masters programs. None of these issues raised by Mr Pinto were addressed during the “consultation” meeting on 17 July 2024 or at any time.
Mr Narayanan was of little assistance to the Respondent. While he claimed the title of CEO, this was unknown to Mr Pinto and his level of authority and responsibility was significantly deficient of what one would expect of a CEO. He named the senior team which differed from the evidence of Professor Nair,[56] he was not involved in the selection of positions for redundancy,[57] he had no finance responsibility,[58] he was unable to recall important information such as who was in attendance in consultation meetings,[59] his understanding of “consultation” was to listen to the Applicant,[60] he does not consult with HR nor is he aware of who the third party advisor to the company is,[61] and the decision maker is the Group CEO who directs him.[62]
Was the dismissal a genuine redundancy?
Section 396 of the Act requires consideration of certain matters before the merits of the application. Section 396(d) of the Act requires the Commission to decide if the dismissal was a case of genuine redundancy.
Section 389 of the Act sets out the meaning of 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.”
The Explanatory Memorandum to the Fair Work Bill 2008 provides further guidance in respect to s.389:
“Clause 389 – Meaning of genuine redundancy
1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.
1547. Paragraph 389(1)(a) provides that person's dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, project or undertaking.
1548. The following are possible examples of a change in the operational requirements of an enterprise:
· a machine is now available to do the job performed by the employees;
· the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or
· the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.
1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise.
1550. Paragraph 389(1)(b) provides that it will not be a case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.
1551. Subclause 389(2) provides that dismissal is not a case of genuine redundancy if it would have been reasonable in all circumstances for the person to be redeployed within the employer’s enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).
1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.
1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.”
(Underlining added)
The Respondent submits that the dismissal was a genuine redundancy, while Mr Pinto submits it was not. He submits he was selected for redundancy because he sought a wage review, raised an underpayment of wages based on the wrong classification in the modern award and lodged two complaints in the Fair Work Commission. Mr Pinto further challenged the genuineness of the process of the dismissal.
In this matter the Respondent asserts that the Commission’s unfair dismissal jurisdiction is not enlivened because the dismissal was a genuine redundancy. Consequently, the Respondent bears the onus of proof.[63] An employer seeking to rely on the genuine redundancy exclusion from the unfair dismissal protections would ordinarily be expected to adduce evidence as to the matters in s.389(1)(a) and (b).
More than mere submissions are required that there were operational requirements and that the job of Accounts Receivable Manager was no longer required because of those requirements. More than submissions are required to demonstrate compliance with the consultation obligations in the relevant modern award. Further, it is insufficient for the Respondent to merely rely on submissions that it was not reasonable to redeploy Mr Pinto.
The Respondent’s two witnesses submit that Mr Pinto’s job of Accounts Receivable Manager was no longer required to be performed by anyone. The uncontested evidence is that Mr Pinto was required to hand over his duties on his last day to his junior in the finance department. The Melbourne team for Further Ed consisted of the CFO, Accounts Receivable Manager (ARM) and Accounts Receivable Officer (ARO). It was submitted without evidence that his position’s duties were to be distributed to the CFO and ARO.
Mr Pinto as Manager reconciled and maintained student accounts on approved terms, collected and processed receivables, dealt with student inquiries, managed the ARO and overseas finance staff, planned graduations, resolved CRM issues, resolved student disputes and deferment applications as well as a number of other administrative and finance responsibilities.
Mr Pinto also gave evidence that the Finance team in Melbourne was overloaded and struggled to manage the workload. The Respondent did not rebut this evidence.
Mr Pinto tendered evidence of communications with finance staff based in India, which shows certain duties were either managed or allocated to overseas staff. Mr Pinto gave evidence that he managed staff overseas, but insufficient evidence was tendered by either party detailing the structure both before and after the “restructure.”
I do not accept the submissions of either Respondent’s witnesses that the advert was an unfortunate oversight by a third party. I do not accept that the Respondent had no knowledge of the advert as it clearly included not only the original job description, but also the additional detail contained in an email from Mr Pinto to the CFO while the CFO was in India at the time the advert was published by its related entity. Further, the advert clearly identifies that the Senior Accounts Receivable Manager will report to the CFO servicing VIT. The source of the additions to the advert, comprising the items contained in Mr Pinto’s email to the CFO who was in India at the time were evidently added to the advert before it was published. This by any reasonable inference cannot have been without the knowledge of the Respondent. There was no evidence that Mr Pinto’s position was replaced in Melbourne, but equally there was no evidence that the position was not replaced or transferred to India. The Respondent did not adduce reliable evidence that it no longer required the job of ARM.
The Respondent did not tender any reliable evidence concerning the alleged operational requirements to reduce staffing in the finance team in response to an alleged impact from the Bill which was yet to be introduced and the cancellation of some VET courses.
The Respondent did not adduce evidence concerning the “restructure” of the finance team, the redistribution of Mr Pinto’s duties to the CFO and ARO as alleged or whether the position was replaced or not replaced particularly in light of the advertised role. It did not rebut the evidence that the finance team was overworked. Nor did it dispute Mr Pinto’s evidence, including his submissions that the student numbers remained strong, thus challenging the need to make his position redundant. Surprisingly the CFO, the person to who Mr Pinto reported was not called to give evidence. The Group CEO who was the decision maker was also not called to give evidence. Neither of the Respondent’s witnesses had any knowledge of Mr Pinto’s duties or could provide any evidence or further detail regarding the alleged restructure of the finance team.
In the absence of any reliable evidence that Mr Pinto’s position of Accounts Receivable Manager was no longer required to be performed by anyone because of operational requirements it is not established that the position was made genuinely redundant. Reliance on the possible impact of a Bill that was not introduced as the reason to cut jobs adds nothing to the submission that the operational requirement necessitated the redundancy of the ARM. The Respondent submits it is up to the employer to determine its operational requirements and its response, which is true, but no evidence was tendered to discharge its obligations that it met s.389(1)(a).
The second limb of the meaning of genuine redundancy in s.389(1) requires the employer to have complied with any obligation under a modern award or enterprise agreement to consult. The relevant modern award applicable to Mr Pinto’s employment was the Education Services (Post Secondary Education) Award 2020 (The Award). Clause 29 of this Award states as follows:
“29. Consultation about major workplace change
29.1 If 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.
29.2 For the purposes of the discussion under clause 29.1(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.
29.3 Clause 29.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
29.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 29.1(b).
29.5 In clause 0 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
(e) job restructuring.
The Award consultation clause requires the employer, following a definite decision to make major changes in structure that are likely to have significant effects on employees to give notice of the changes to all employees who may be affected by them and discuss with affected employees the introduction of the changes and their likely effect and measures to avoid or reduce the adverse effects of the changes and commence discussions as soon as practicable after a definite decision has been made.
VIT submit that it made a definite decision to implement cost cutting measures and determined to implement a Proposed Restructure. Having made this definite decision to restructure with redundancies (the likely significant effect) it was required to give notice to all affected employees notice of the proposed restructure. The uncontested evidence is that the Group CEO announced that there were to be staff cuts at the staff meeting of 12 June 2024. No credible evidence of earlier announcements are relied on, noting further that the announcement of 12 June lacked any detail of proposed changes.
Based on the submissions and evidence I cannot conclude that notice concerning the significant effects on employees was given, nor detail of the proposed restructure. Further to the relevant Award clause having given notice of the changes after the definite decision was made, the Respondent was then required to discuss as soon as practicable with affected employees the introduction of the changes, their likely effect and measures to avoid or reduce the effects of the changes. The Respondent failed to comply with these requirements. Mr Pinto was informed of the decision to make his position redundant, there was no information on the proposed restructure, its likely effect on the finance team or him directly, nor was there any information offered concerning measures to avoid or reduce the effects. Even when Mr Pinto raised concerns about workload and solid student numbers or his distinguishing duties that financially benefitted his employer there was no discussion or further information offered.
Before I traverse the balance of the consultation obligations, it is helpful to consider the evidence in the context of the definition of genuine redundancy under s.389 of the Act. The first requirement of s.389(1) is that operational requirements render the position redundant.[64]
Factors leading to operational requirements can be both external and internal factors as described in Shachar v Electrical Home Aids:[65]
“In order for a dismissal to be a case of genuine redundancy, it must be established on the evidence that the employer no longer required the relevant job to be performed by anyone because of changes in the operational requirements of its enterprise. I quite agree that a mere ‘desire to do things differently’ would not be enough, because evidence of a mere desire does not say anything about ‘operational requirements’. But if the employer decides that its operational requirements have changed, and as a result, it no longer wants a particular role performed by anyone, this is plainly enough. The change to the operational requirements of the enterprise can arise from external events, but so too can it come about from internal matters, such as decisions that result from a reassessment or reappraisal conducted by the business of its own needs. It is the enterprise that determines what its operational requirements are. If an employer decides that a role is now surplus to operational requirements, there is a change in the operational requirements. This construction is in keeping with the plain meaning of the expression ‘change in operational requirements’; a reading down of the expression to require the intercession of an external force that brings about the change in operational requirements is neither textually supportable nor commercially sensible.”
The Respondent failed to present evidence of operational requirements arising from internal or external factors demonstrating that the position of ARM was no longer required. Mr Pinto led evidence of student numbers and the workload affecting the small AR team in Melbourne and India. He further led evidence of a position advertised in India reflecting his job description including additional duties sent to his manager who was in India at the head office at the time the advertisement was published. The Respondent presented no reliable evidence to contest Mr Pinto’s evidence but relies on two witnesses that did not manage Mr Pinto nor had any direct understanding of his position or his duties. No evidence was adduced regarding the alleged “proposed restructure” or evidence of operational requirements that have changed requiring the redundancy of the ARM. Submissions relied on the consequences of proposed Bill on introduction, which was not introduced during Mr Pinto’s employment nor at the time of the hearing. No evidence of operational requirements concerning the work of AR was presented, particularly in light of evidence of an increased level of students.
Secondly, the definition of genuine redundancy in s.389(1) further requires adherence to the consultation process in the relevant Award.[66] As Vice President Watson observed in Maswan v Escada Textivertrieb T/A ESCADA[67] (‘Escada’):
“The requirement to discuss proposed changes and consult about the changes has been held to require meaningful consultation and not merely an afterthought. Consultation after an irrevocable decision has been made has been held to not amount to meaningful consultation.”[68]
The Vice President in Escada further referred to the observations in Sinfield v London Transport Executive [1970] [at 558] by Sachs LJ:
“Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal. I start accordingly from the viewpoint that any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at the formative stage of proposals – before the mind of the executive becomes unduly fixed.” [69]
The Award clause in this matter is consistent with the award obligations in Escada, meaning genuine consultation was required. It requires meaningful discussion with affected employees after the definite decision to restructure is made but before the dismissal. Mr Pinto contends that even though he was invited to provide information to be considered before his redundancy meeting on 17 July 2024, no meaningful consultation or discussion occurred. Mr Pinto concluded that the decision was irrevocable. I have formed the same view; the evidence strongly supports a finding that the definite decision was to dismiss Mr Pinto and no discussion would influence the Respondent’s decision in any way. Instead of a meaningful discussion, the Respondent voiced its objection to Mr Pinto’s behaviour on his learning that he would be made redundant and objected to his arguments why the decision ought to be reconsidered. Mr Pinto was described by the witnesses as argumentative, not an unremarkable observation considering the breadth of the role, tenure and seniority in such a small team plus learning of the impending dismissal without any detail to explain the decision. Understandably Mr Pinto was upset as anyone would be when faced with a dismissal with little information other than “your position is redundant.” This conduct by the two witnesses, who were evidently not the decision makers, appear to have carried out the dismissal on the pretence of consultation but in fact it was either an afterthought or not more than an exercise to tick the box that a “discussion” was held.
I do not find that the Respondent has satisfied the requirement of the meaning of genuine redundancy pursuant to s.389 (1) of the Act, on the basis that:
(a) the person’s job was no longer required because of changes in operational requirements, and
(b) the employer complied with any consultation requirements in the relevant award.
Further s.389 (2) of the Act provides that a dismissal is not a genuine redundancy where it would have been reasonable in all the circumstances for the person to be redeployed. The Respondent relies on this section of the Act and submits based on Mr Pinto’s resume there were no opportunities to redeploy him.
During proceedings, the Respondent relied on Mr Pinto’s resume when he first applied for his role to say that he did not hold the necessary skills for deployment. However, had there been genuine discussion/consultation, Mr Pinto may have been afforded the opportunity to update his resume or include experiences which may be relevant for redeployment that were not relevant when he applied for the role of ARM.
The Respondent failed to adduce evidence of Mr Pinto’s unsuitability for any available position, particularly as the decision appears to be based on an outdated resume. I further observe that the Respondent appears to rely on the unsuitability for any vacancies across the group of companies, but no evidence was presented regarding any vacancies. Therefore, no finding can be made other than that the Respondent’s reliance on s.389(2) was not properly advanced.
Having found that the Respondent failed to discharge its obligations to find that the dismissal was a genuine redundancy, I must now consider whether the dismissal was unfair under s.387 of the Act.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, I must take into account:
“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[70]
Consideration
Whether there was a valid reason
The Respondent submits that the dismissal was a result of redundancy, while Mr Pinto submits it was not and that he was selected for redundancy because he sought a wage review, raised an underpayment based on the classification in the modern award and lodged two complaints in the Fair Work Commission.
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well-founded.”[71] Further it is the role of the Commission to consider the employer’s reasoning to determine whether that reasoning is valid.[72]
On the evidence, it is reasonable to conclude that while the Respondent dismissed Mr Pinto for the reason of redundancy, the reason was not defensible.
Had the reason been redundancy, the Respondent ought to have presented evidence of the operational requirements rendering the position of ARM redundant. It did not. On this basis I cannot find that the Respondent’s reason for dismissal is sound, defensible or well founded.
Whether the person was notified of that reason
It is not contested that Mr Pinto was notified of the reason for dismissal, that being his position was redundant. The Respondent does not assert that the dismissal was due to reason of performance or conduct. I am satisfied that Mr Pinto was given notice of the reason, although the reason in my view was not valid
Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[73]
Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[74]
Neither conduct or performance are relied on by the Respondent, therefore this consideration is somewhat irrelevant. The Respondent submits that it consulted with Mr Pinto, however, I did not find that consultation in accordance with the relevant Award clause was met.
Mr Pinto further asserts that his dismissal was due to his request for a wage review and subsequent general protections and bullying applications made in the Commission. The Respondent denies that these were reasons for the dismissal. Due to the absence of reliable evidence concerning operational requirements, the reason and whether Mr Pinto was given an opportunity to respond cannot be determined satisfactorily in the Respondent’s favour.
Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
There was no refusal, however I observe that Mr Pinto attended the meeting alone expecting to meet with Mr Narayanan alone. In any event there was no refusal.
If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
This consideration is not relevant in this matter.
The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
The Respondent is not a small business employer and is one arm of a group of companies. In this situation, it is expected that the Respondent ought to have better managed the alleged “proposed restructure” and complied with its obligations to notify affected staff, engage in meaningful consultation and be able to defend its reason for dismissal. This consideration is unhelpful to the Respondent.
The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
Despite the Respondent being a large employer with appointed HR professionals, no evidence was led of their involvement in the process other than the scarce administrative emails. For this reason, it appears the human resource expertise has had little visible impact in the process in favour of the Respondent’s position in this matter.
Any other matters that the FWC considers relevant
As the Respondent had not met the criteria of s.389 for a genuine redundancy, the decision of UES (Int’l) Pty Ltd v Leevan Harvey[75] (as does the Explanatory Memorandum) confirms that selection of individuals for redundancy is not a consideration when assessing the criteria of s.389 of the Act. However, under s.387(h) the Commission may consider the criteria not met under s.389 of the Act, and an employer that failed to consult “would have both the failure to consult and the process for selecting the person for redundancy considered in any unfair dismissal remedy application.”[76] Mr Pinto asserts that his dismissal is as a result of his exercising workplace rights, but this is not a general protections application under s.365 of the Act. More to the point, Mr Pinto submits that the Respondent’s jurisdictional objection that his dismissal was a genuine redundancy is not founded and rather the dismissal was unfair. Consequently, the dismissal is considered in view of the application of an unfair dismissal remedy. The reason for dismissal is not a genuine redundancy. The reason for dismissal was not well founded or defensible and the reason(s) remains unclear. The selection of Mr Pinto’s position of ARM is unclear in the context of an absence of evidence of operational requirements.[77]
Further in relation to the probable reason for dismissal being the result of the wage claim and two claims in the Commission, I observe that the Respondent did not demonstrate that it took any reasonable action to stop or prevent bullying and Mr Pinto's complaints were ignored, even when witnessed by the two witnesses.[78] No evident action was taken to address the wage claim. The evidence was that it was passed from the Group CEO to the CFO and no response was given until after the dismissal. I also observe that Mr Pinto was dismissed prior to the listings for the bullying and general protection claims. Unsurprisingly both claims were withdrawn on jurisdictional grounds with the dismissal. The CEO appeared to have no involvement, but Professor Nair was responding to the two Commission claims and allegedly conducted an investigation but did not include Mr Pinto in the investigation.[79] There was no credible reason for the coincidence of the two claims and Mr Pinto's dismissal.
Conclusion - Harsh, unjust or unreasonable?
Having considered each matter specified in s.387, against the evidence before me, I have considered whether the dismissal was harsh, unjust or unreasonable. I have weighed up all of the circumstances of the case.
There was an absence of credible evidence from the Respondent to find that the dismissal was a genuine redundancy under s.389 of the Act. Further I do not find that there was a valid and defensible reason for the dismissal. While Mr Pinto was informed that the reason was redundancy, there was an absence of information shared with Mr Pinto and in these proceedings, an absence of genuine consultation together with the failures in satisfying a genuine process, I find on balance the relevant criteria considering harshness in s.387 that the dismissal was unfair.
Therefore, I am satisfied that the dismissal was unfair under s.385 of the Act. As I find the dismissal unfair, I must now consider whether to award a remedy.
Remedy
On being satisfied that the application was made under s.394 of the Act, and because I have found Mr Pinto was unfairly dismissed, I may order a remedy under s.390 of the Act.
The primary remedy of reinstatement is not appropriate in the circumstances. Mr Pinto lodged a wage review, general protections and bullying application. Neither of which were adequately addressed by the Respondent. In such circumstances reinstatement is counterproductive to a workable or harmonious relationship. Further neither party seeks reinstatement.
In these circumstances I do consider a remedy of compensation appropriate. I observe that Mr Pinto has raised a matter concerning an underpayment, I make clear that this decision does not deal with that matter. Should Mr Pinto remain aggrieved on that basis he may contact the Fair Work Ombudsman.
Compensation
Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
“392 Remedy—compensation
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.”
I consider all the circumstances of the case below.
Effect of the order on the viability of the Respondent’s enterprise
The business is sizable and there is no evidence regarding the viability of the business. Therefore, I am not satisfied that an order for compensation would have an effect on the viability of the employer’s enterprise.
Length of the Applicant’s service
Mr Pinto’s length of service was 2 years and he submits that he was a loyal employee. Mr Pinto may have been a loyal employee but the relationship between himself and his manager was a strained one, which the evidence demonstrates. From the email correspondence between the parties together with the applications before this Commission suggests that Mr Pinto’s employment was unlikely to continue for more than 6 months.
The maximum compensation under the Act is 26 weeks, and Mr Pinto proposes the maximum compensation. The Respondent on the other hand submit that should I find in favour of the Applicant that a period of compensation of approximately two weeks ought to apply.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed
As stated by a majority of the Full Court of the Federal Court,
“[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”[80]
As I make the observation that Mr Pinto was unlikely to continue in employment for a period of more than 6 months, the maximum of compensation cannot be more than 26 weeks. I do consider that had Mr Pinto not been dismissed he would have earned remuneration for a least a six-month period. However, I must consider the balance of factors under s.392 of the Act.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal
The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal.[81] What is reasonable depends on the circumstances of the case.[82]
Mr Pinto gave evidence that he found alternative employment a week prior to the hearing which means that he was out of work for a period of about 15 weeks. Consequently, in these circumstances where Mr Pinto had only suffered a loss of 15 weeks, I do not consider it appropriate that the compensation be more than 15 weeks.
Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation
Mr Pinto presented no evidence of earnings for the 15 weeks of unemployment.
Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation
As Mr Pinto provided no evidence of earnings, I am unable to ascertain the amount of income likely to be earned. Nevertheless, I am not inclined to discount the compensation on this point. However, he was paid 3 weeks’ notice and 6 weeks of severance pay and I consider it appropriate to reduce the amount of compensation by 9 weeks. This leaves a balance of compensation of 6 weeks.
Other relevant matters
There are no additional relevant factors to take into consideration.
The order of compensation
It is appropriate in these circumstances to make an order of 6 weeks’ pay. This is a figure of $8654.88 gross. Tax is to be deducted according to law and forwarded to the ATO.
I am satisfied that the amount of compensation is appropriate to the circumstances of this case and the criteria for deciding compensation under s.392(2). Misconduct is irrelevant[83] the figure does not include an amount for shock, distress etc,[84] and the compensation does not exceed the cap.[85]
An order[86] will be issued with this decision for the payment of the net sum ($8654.88 less tax) within 7 days of this decision into Mr Pinto’s bank account. Superannuation on this compensation is also payable directly into Mr Pinto’s nominated superannuation fund in accordance with the Superannuation Guarantee requirements.
COMMISSIONER
Appearances:
K Pinto, Applicant.
K Stewart, lawyer, and C Nair and R Narayanan for the Respondent.
Hearing details:
2024.
Melbourne:
November 14.
[1] Contract of Employment, Digital Hearing Book (‘DHB’) pp 18-36.
[2] Transcript of proceedings dated 14 November 2024 (Transcript) PN62, PN64 and PN81.
[3] Transcript PN88. The CFO was the head of finance and oversaw the Melbourne and Geelong office together with the offshore department.
[4] Transcript PN111 – PN114.
[5] Form F2, DHB p 6 at 3.2[2].
[6] Transcript PN137 – PN138 and PN382.
[7] DHB p 46.
[8] Advert from Naukri, DHB p 47; Email to Jacob Mohan on 15 May 2024, DHB p 53; and DHB p 177.
[9] Referenced in the letter of 15 July 2024 signed by the “authorised delegate”, DHB p 131.
[10] Alleged “aggressive” shutting of doors, references to “ridiculous” excuses for not attending meetings, accusations that the manager wasted his staff’s time, accusations of shouting and yelling.
[11] Email from Satya Indukuri Chief of Staff, DHB p 68.
[12] DHB p 69.
[13] 19 June 2024.
[14] Further emails for 2023 were received from Ecommsys Pty Ltd regarding student intake data, DHB p 71.
[15] DHB pp 194-197.
[16] Email from Satya Indukuri Chief of Staff dated 2 July 2024, DHB p 129.
[17]DHB p 137.
[18] DHB pp 130-134.
[19] DHB pp 135-136; Excerpts from website of student enrolments, DHB p 262.
[20] Transcript PN166.
[21] DHB pp 194, 204 and Transcript PN215 – PN216 and PN717.
[22] The Respondent admitted to a recording of the meeting and would submit the recording if it was necessary. Transcript PN458 – PN460 and PN961.
[23] DHB pp 139-140.
[24] DHB p 287.
[25] DHB pp 139-140.
[26] DHB p 141.
[27] DHB p 144.
[28] Dated 6 September 2024.
[29] Transcript PN850 – PN857.
[30] DHB p 378.
[31] DHB p 150, 159.
[32] The Education Services for Overseas Students Amendment (Quality and Integrity) Bill 2024.
[33] DHB p 151 and Transcript PN142-144.
[34] Form F3 at 2.2, DHB p 150.
[35] DHB p 151.
[36] DHB p 380.
[37] DHB p 383.
[38] DHB p 379.
[39] Exhibit R1, Witness Statement of Chenicheri Sid Nair at [3]-[5], DHB p 406.
[40] Ibid at [19], DHB p 407.
[41] He was the Dean of the Sydney and Melbourne campus in respect to the higher education programs.
[42] Transcript PN354 – PN359.
[43] Transcript PN542 – PN550 and PN596.
[44] This includes its obligation to consult and consider redeployment opportunities, see also Transcript PN332, PN345 and PN351.
[45] Attachments SN-1 – SN-4, DHB p 408 and pp 411-415.
[46] Transcript PN353- PN359.
[47] Exhibit R1 at [33] – [46], DHB p 409.
[48] Attachment SN-9, DHB p 426.
[49] Transcript PN342 – PN345 and PN422 – PN429.
[50] Attachment SN-10, DHB pp 429-434.
[51] Which lacked any reliable detail. He refers to student numbers that he “thinks” were around 1000, but no corroborating evidence was submitted.
[52] Exhibit R2, Witness Statement of Raj Narayanan, DHB pp 439-441.
[53] Ibid at [3].
[54] Ibid at [6].
[55] Attachment RN-1 email dated 16 July 2024.
[56] Transcript PN699.
[57] Transcript PN706.
[58] Transcript PN853 – PN856.
[59] Transcript PN711 – PN712.
[60] Transcript PN718, PN782, PN786 – PN806 and PN818 – PN822.
[61] Transcript PN754.
[62] Transcript PN756 – PN762.
[63] See Ulan Coal Mines Limited v Honeysett and Others[2010] FWAFB 7578.
[64] Fair Work Act 2009 (Cth) s.389(1)(a).
[65] Yitzhak Shachar v Electrical Home Aids Pty Ltd t/a Godfreys[2018] FWC 4892 at [29].
[66] S.389(1)(b).
[67] [2011] FWA 4239 at [19].
[68] Ibid.
[69] Ibid at [20] quoting Sinfield v London Transport Executive [1970] 1 CH 550 [at 558].
[70] Sayer v Melsteel Pty Ltd(2011) FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd [2002] AIRC 317, [69].
[71] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[72] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[73] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 75.
[74] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[75] [2012] FWAFB 5241.
[76] Ibid at [27] and [29].
[77] Transcript PN600 – PN601.
[78] Transcript PN516.
[79] Transcript PN498 - PN503.
[80] He v Lewin [2004] FCAFC 161, [58].
[81] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] (‘Biviano’) citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
[82] Biviano, [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[83] S.392(3).
[84] S.392(4).
[85] S.392(5).
[86] PR787481.
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