Mr Andrew Rabel v Selmar Holdings Pty Ltd/Career Training Group Pty Ltd (CTG) T/A Selmar Institute of Education

[2014] FWCFB 8037

[2014] FWC 5073 [Note: An appeal pursuant to s.604 (C2014/5900) was lodged against this decision - refer to Full Bench decision dated 13 November 2014 [[2014] FWCFB 8037] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Andrew Rabel
v
Selmar Holdings Pty Ltd/Career Training Group Pty Ltd (CTG) T/A Selmar Institute of Education
(U2014/4938)

COMMISSIONER RYAN MELBOURNE, 28 JULY 2014

Application for relief from unfair dismissal.

[1] The Applicant was dismissed from his employment with the Respondent on 7 February 2014.

[2] The Applicant had been employed with the Respondent (and previous transmittors of the business) for about 2 years and 7 months and as the date of termination was employed as a Collections Officer within the finance team of the Respondent.

[3] The reason for the termination as given by the Respondent was that as a result of a restructuring the Respondent no longer required a Collections Officer and therefore the Applicant was made redundant.

[4] The Respondent filed an Objection to Application for Unfair Dismissal Remedy on the basis that the termination was a case of a genuine redundancy.

[5] The matter was listed for a 3 day hearing in relation to both the jurisdictional objection raised by the Respondent and for determination of the application.

[6] The matter was subsequently dealt with at a one day hearing at which the Applicant represented himself and the Respondent was represented by Ms Robyn Lyons, Chief Operating Officer of the Respondent.

[7] Both parties were offered the opportunity to give sworn evidence to the Commission. Neither the Applicant nor the Respondent led any oral evidence at the hearing with each party being content to rely on the unsworn material they had filed in accordance with the Directions given by the Commission in this matter.

[8] The Applicant and Respondent were each given and accepted the opportunity of making oral submissions to the Commission both in relation to the jurisdictional issue and in relation to the substantive application.

Background

[9] The Applicant was originally employed by Selmar Services P/L. In November 2013 the Applicant had his employment transferred to Selmar Holdings P/L. A new contract of employment was entered into between the Applicant and Selmar Holdings P/L on 29 November 2013. On 13 December 2013 Careers Training Group P/L acquired 100% of the business of Selmar Institute of Education and acquired Selmar Holdings P/L and the registered training organisation (RTO) which operated the Selmar Institute of Education. There were 5 other companies as part of a Selmar group of companies which were not acquired by Careers Training Group P/L. On acquiring the Selmar Institute of Education and Selmar Holdings P/L and the RTO the new CEO of Careers Training Group P/L initiated a review of the management and structure of the business.

[10] In relation to the finance area of the business the review recommended significant change to the finance structure. Payroll which had been done externally was to be brought back in house. A simplified corporate structure eliminated the need for accounting transactions between multiple group entities. 1

[11] The Board of Directors of Careers Training Group P/L decided on 30 January 2014 to accept the recommendations made in relation to the restructure of the finance team by making four existing positions redundant and replacing those positions with a Chief Operating Officer (COO) assisted by an accountant who could also do the payroll function. The COO position had been created in September 2013 for the purpose of assisting the CEO of Selmar Holdings P/L complete the sale to Careers Training Group P/L.

[12] Commencing on 3 February 2014 the Respondent commenced discussions with the four employees whose positions were to be made redundant. The discussions with three of the affected staff were relatively quick with the three staff accepting the redundancy and a separation package which included a redundancy payment.

[13] The Applicant refused to have discussions with the Respondent on 3 February 2014 as he exercised his right to have a representative present at any such discussions.

[14] On 5 February 2014 the Applicant together with his representative from the ASU met with the Respondent.

[15] The Respondent advised the Applicant of the basis for the Respondent’s decision that the Applicant’s job was redundant. The Respondent also offered the Applicant an alternative position in direct sales. The Applicant declined this position on the basis that it was not suitable alternative employment. The Applicant sought a transfer to work in administration. The Respondent advised the Applicant that there were no vacancies amongst the administrative positions.

[16] The Respondent terminated the Applicant’s employment that day.

The Applicant’s Contentions

[17] The Applicant made a number of contentions. The primary contention was that the termination was not a genuine redundancy. This contention had several elements:

• The job of Accounts Officer that the Applicant been performing was still required by the Respondent as it was being performed as part of the new role created for the Finance Manager.



• The Respondent had not offered the Applicant the job of Payroll Specialist which was part of the new Finance Manager’s role.



• The Respondent should have commenced consultations with the Applicant when the Respondent first had concerns about the Finance team which was in November 2013.



• The Applicant’s employment was covered by the Educational Services (Post-Secondary Education) Award 2010 and the Respondent had not met the consultation requirements of that award.

[18] The Applicant relied upon a number of authorities which the Applicant contended supported his position. Attachment 1

The Respondent’s Contentions

[19] The Respondent contended that the termination of the Applicant was a case of a genuine redundancy.

[20] The decision to reorganise the finance area of the business was only made by the Board on 30 January 2014 and that consultation with the Applicant and the other employees whose jobs were redundant occurred soon after the decision had been made.

Alternative employment was offered to the Applicant but the Applicant declined to accept the alternative employment.

[21] The Respondent did not concede that the Applicant’s employment was covered by the Educational Services (Post-Secondary Education) Award 2010 but contended that the Respondent’s only obligations arose from the NES which did not include a consultation requirement.

[22] The Respondent contended that it did in fact consult with the Applicant immediately after the decision to reorganise the finance team had been made.

Consideration

[23] Before considering the central issue raised in this matter the Commission needs to consider and determine some initial matters.

Is the Applicant a person protected from unfair dismissal?

[24] The relevant provisions in the Act for considering this question are s.382 and 383 which are as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:

(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

[25] On the material before I am satisfied that the Applicant was employed for the minimum period of employment and that the Applicant’s annual rate of earnings is less than the high income threshold. I conclude therefore that the Applicant is a person who is protected from unfair dismissal.

Was the application in this matter filed with the Commission within time?

[26] S.394(2) of the Act requires that an application for an unfair dismissal remedy be filed within 21 days after the dismissal took effect.

[27] The Respondent concedes that the dismissal of the Applicant took effect on 7 February 2014. The application in this matter was filed with the Commission on 24 February 2014.

[28] I conclude that the application in this matter was filed within the time limit set by s.394(2) of the Act.

Is the Respondent a small business?

[29] The Respondent’s Form F3 - Employer Response to Unfair Dismissal Application identified that the Respondent had 68 employees as at 7 February 2014.

[30] I conclude that the Respondent is not a small business and therefore the small business dismissal code is not relevant in this matter.

Was the dismissal a case of a genuine redundancy?

[31] The starting point for a consideration of this question is the legislation. S.389 of the Act provides 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.”

[32] The three specific issues raised respectively by s.389(1)(a), 389(1)(b) and 389(2) will be considered separately.

Was the Applicant’s job redundant?

[33] The witness statement prepared by Ms Robyn Lyons, Chief Operating Officer of the Respondent includes details about the process undertaken by the Respondent to reorganise its finance team.

“1. I was employed as Chief Operating Officer at Selmar Holdings Pty Ltd at the start of September 2013. The company was going through a sale process and it was intended that I would relieve the CEO of some of the operational aspects of the business, to enable him to concentrate on Sales and Marketing. I am a qualified CPA and was to take over management of the finance function and the administration and HR departments.

2. In the first week of my employment, I was asked to assess the current business and IT systems that were in use, the financial reporting framework and the functions and requirements of the various departments under my direct management. A report was subsequently produced which outlined my initial & impartial observations and recommendations (Attachment 2).

3. In December 2013 the sale of the business was finalised and the new owners took control. The new CEO of the group, Neil Shilbury, asked the senior management team to review their departments and identify any areas where we might improve efficiency and productivity across the company. I provided Neil with a copy of the report that I had written for Marcus at the end of September.

4. Whilst early discussions about a possible restructure in Finance were had in December in the days leading up to Christmas, nothing was determined until mid-January 2014. I was asked to come up with a proposed structure for finance and the relevant position descriptions for any potential roles. As an experienced CFO with an extensive skill set, I determined that the department was not running as efficiently as it could and that there were a number of tasks being undertaken that could be simplified or eliminated. I also concluded that I would be able to manage the finance function with the assistance of an accountant with a particular skill set that included payroll.

5. My recommendation was that the four existing positions in finance become redundant and that an assessment be done to determine who in the existing team may be suited to take on the newly identified role. After careful consideration, I advised Marcus Sellen that I did not believe there was anyone in the current team that had the experience or skills that would be required for the new role. Marcus accepted my recommendations and we presented our plan for restructure at the meeting of the Directors of the new company on 29'h January 2014. They were supportive of the proposed plan and asked me to proceed as soon as possible.”

[34] Attachment 2 to Ms Lyons’ witness statement was a copy of the report she prepared in September 2013. In relation to the Finance Team that report said:

“Finance
Once the company restructure has taken place, post completion, I would envisage the staff requirements in Finance will reduce. At present there are 3.75 FTE's with an annual cost of approx $330K (incl. on costs but excluding my time to be allocated).

Based on previous experience and current view of complexities of SELMAR reporting, I believe this cost could be reduced to approx $108K (incl. on costs but excluding my time to be allocated). This may change depending on requirements of Career Training Group or unexpected workloads within, but this a "best guess" based on current knowledge.”

[35] It is clear from the report produced by Ms Lyons in September 2013 that she envisaged and was recommending a wide range of changes in the operational structure of the business and many of her observations and suggestions went beyond the Finance team.

[36] Mr Marcus Sellen, Chief Executive Officer for the Respondent in his witness statement described the changes adopted by the Board decision as follows:

“7. The recommendations that had been made were accepted by the new board of directors on 29th January 2014. These recommendations included simplifying the reporting regime as a direct result of the new corporate structure, consolidating tasks, bringing payroll in-house and reviewing the potential of outsourcing the management and collection of our student loans. It was a substantial change to the existing team structure and to the daily accounting processes and tasks that were being undertaken at the time.”

[37] Ms Lyons also filed a supplementary witness statement which provided further detail around the Finance Manager’s position which was created to replace the redundant employees in the finance team.

[38] The position description created for the new Finance Manager’s position clearly described both the work to be performed and the skill set required for the position and clearly describes a position requiring greater skills than that of a Collections Officer.

[39] Ms Lyons in her supplementary statement described how the new Finance Manager came to be employed. Although the position description for the new Finance Manager was drafted immediately after the Board approved the revised finance structure on 30 January 2014 the new position was never advertised as other events, which had nothing to do with the Applicant, caused the Respondent to seek immediate temporary assistance from a person with accountancy experience. The temporary proved to be so effective that that person was offered the new fulltime position of Finance Manager. Ms Lyons in her first witness statement described the qualifications of the Finance Manager as follows. “The new FM is completing a Masters in Professional Accounting, has a background in the Education sector and extensive payroll and accounting experience.”

[40] It is absolutely clear that the reorganisation of the finance part of the Respondent’s business was real and substantial. The four positions which comprised the previous finance team and which included the Applicant’s position as Collections Officer were each made redundant and two new positions replaced them. One of the replacement positions was that of Ms Lyons as Chief Operating Officer and the second was that of the new Finance Manager.

[41] The Applicant contended that as at the time of his dismissal there was a requirement for his job. This is simply stating the obvious. Of course the Applicant’s job existed as long as the Respondent had him employed in that job. That however is not to the point. The question posed by s.389(1)(a) cannot be answered by having regard to the Respondent’s previous need for someone to be doing the Applicant’s job. The question posed by s.389(1)(a) is whether the Respondent has an ongoing need for the Applicants job to performed by anyone.

[42] The Applicant contended that there was an ongoing need for a Collections Officer role and that therefore his position could not be considered to be redundant.

[43] I have no doubt that part of the work which made up the Applicant’s job is still being performed within the Respondent’s business and most probably by the Finance Manager. However the issue is not whether some of the Applicant’s work is still being performed but whether the Applicant’s job is still required by the Respondent.

[44] In Ulan Coal Mines Ltd v Howarth, [2010] FWAFB 3488 at [16] to [18] a Full Bench of the Commission considered the meaning of the term “the person’s employer no longer required the person’s job to be performed by anyone” in s 389(1)(a) of the Act.

“[16] Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy:

1547 Paragraph 389(1)(a) provides that a 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, activity, 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 employee;
• 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.”

[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” Jones v Department of Energy and Minerals (at 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that (at 308):

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

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Federal Commissioner of Taxation (2004) 136 FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.

[18] In Kekeris v A Hartrodt Australia Pty Ltd [2010] FWA 674 Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said (at [27]):

“When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a “genuine redundancy” where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists.”

[45] What is apparent from the material provided to the Commission is that the job the Applicant previously had no longer exists.

[46] When the test set out in Ulan Coal Mines Ltd v Howarth is applied to the circumstances in this matter the only reasonable conclusion is that the Respondent no longer required the Applicant’s job to be performed by anyone.

Did the Respondent comply with any award consultation requirements?

[47] This question presupposes that there is a modern award which covers and applies to the Applicant and which therefore creates an obligation on the Respondent to consult with the Applicant about significant changes in the workplace or about redundancy.

[48] The Applicant contends that his employment was covered by the Educational Services (Post-Secondary Education) Award 2010. The Respondent did not concede that the Applicant was covered by any modern award.

[49] The Educational Services (Post-Secondary Education) Award 2010 is an industry award which provides at clause 4.1 that:

“This industry award covers employers throughout Australia in the post-secondary educational services industry and their employees (other than trades, cleaning or maintenance staff) employed in the classifications listed in Schedule B—Classifications—Academic Teachers, Schedule C—Classifications—Teachers and Tutor/instructors and Schedule D—General staff, to the exclusion of any other modern award.”

[50] Having regard to both the inclusions and exclusions in relation to coverage identified in clause 4 of the Educational Services (Post-Secondary Education) Award 2010 and having regard to the material before the Commission I am satisfied that the Respondent is covered by the Educational Services (Post-Secondary Education) Award 2010.

[51] The Applicant was employed as a Collections Officer within the finance team of the Respondents business. As the Applicant described his role it was that of “debtor collections”. I have considered the descriptions of the several General Staff levels in Schedule D of the Educational Services (Post-Secondary Education) Award 2010 and it is clear that the Applicant would fall within the description for either or both General Staff Level 3 and 4.

[52] I am satisfied that both the Applicant and the Respondent are covered by the Educational Services (Post-Secondary Education) Award 2010 and that the award applies to the Applicant’s employment.

[53] The consultation requirement in the Educational Services (Post-Secondary Education) Award 2010 is found in clause 8.

“8. Consultation
[8—Consultation regarding major workplace change renamed and substituted by PR546288 ppc 01Jan14]
8.1 Consultation regarding major workplace change
(a) Employer to notify
(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.
(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.
(b) Employer to discuss change
(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.
(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).
(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.
8.2 Consultation about changes to rosters or hours of work
(a) Where an employer proposes to change an employee’s regular roster or ordinary hours of work, the employer must consult with the employee or employees affected and their representatives, if any, about the proposed change.
(b) The employer must:
(i) provide to the employee or employees affected and their representatives, if any, information about the proposed change (for example, information about the nature of the change to the employee’s regular roster or ordinary hours of work and when that change is proposed to commence);
(ii) invite the employee or employees affected and their representatives, if any, to give their views about the impact of the proposed change (including any impact in relation to their family or caring responsibilities); and
(iii) give consideration to any views about the impact of the proposed change that are given by the employee or employees concerned and/or their representatives.
(c) The requirement to consult under this clause does not apply where an employee has irregular, sporadic or unpredictable working hours.
(d) These provisions are to be read in conjunction with other award provisions concerning the scheduling of work and notice requirements.”

[54] The Respondent’s own material in this matter is conclusive of the fact that on 30 January 2014 the Respondent made a definite decision to introduce a major change in the organisation and structure of its finance area and that the major change would have a significant effect on the employees in the finance area as the effect of the major change would include termination of employment; major changes in the composition, operation and size of the Respondent’s workforce and in the skills required; the elimination or diminution of job opportunities, and the restructuring of jobs.

[55] Therefore the Respondent had an obligation under clause 8(1)(a)(i) of the Educational Services (Post-Secondary Education) Award 2010 to notify the employees who may be affected by the proposed changes and their representatives, if any. It is not in dispute that the Respondent did notify the affected employees of the proposed changes on 3 February 2014 which was the third workday after the definite decision had been made.

[56] The Respondent also had an obligation under clause 8(1)(b)(i) and (ii) to commence discussions with the affected employees as early as practicable after the definite decision had been made by the Respondent. The definite decision was made by the Board on Wednesday 30 January 2014 and the discussions commenced on Monday 3 February 2014. I am satisfied in the circumstances of this matter that the Respondent did commence discussions with the Applicant, as an affected employee, as early as practicable after the definite decision had been made. The time gap of two clear working days between the date of the definite decision and the commencement of discussions with affected employees does not appear unreasonable. Once the Board made the definite decision some work would have to have occurred in order to enable the management of the Respondent to engage in discussions with the affected employees.

[57] In order to make the required discussions effective clause 8(1)(b)(iii) places a strong obligation on the Respondent to provide in writing sufficient information to enable the affected employees to engage in the discussions.

“8(1)(b)(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

[58] There is nothing in the material filed by the Respondent in this matter which contends that the Respondent met the obligation to provide the Applicant in writing with the relevant information required by clause 8(1)(b)(iii) of the Educational Services (Post-Secondary Education) Award 2010.

[59] In closing submissions Ms Lyons for the Respondent contended as follows:

“PN389. We put the proposition to the Board at the inaugural Board meeting on 30 January and the new Board agreed with the proposed structure that I had put forward. And we were given, on 30 January, permission to proceed with the restructure. That was a Thursday. On the following Monday we commenced discussions with the finance staff immediately. On the Monday we had spoken to the other three members of staff and they had all accepted redundancy on that day. We attempted to have a conversation with Andrew and he immediately did not want to talk to us until he had representation, which we absolutely agreed to.
PN390. The issue that we had was that the other three members of staff were not working out their notice period and we felt we had to let the business know so that they could have the opportunity to say goodbye to staff. In my email, which Andrew has presented here - on Tuesday 4 February I wrote to Andrew and explained what was going on with Andrew and Kenny (indistinct) . I say in this email, “I would like to stress that a decision around your role in the new structure has not yet been determined.” So I needed him to know what was going on so he wouldn’t be anxious. And I said, in here, “In the meantime I am available, should you have any questions.”
PN391. He came back to me that afternoon and he said, “Could you give me any documentation today to peruse or take home?” I went back to Andrew and I said, “Until we have been able to have a consultation discussion with you and your representative there is nothing to give you at this point.” So I’m comfortable, in that we did what we needed to do. Andrew was unable to get the representation til the Wednesday. We had that meeting with his Union rep on Wednesday. We offered him – we explained the situation why we were restructuring. Why we were considering redundancies of the role. We offered him another role and he turned it down on the spot.”

[60] Quite specifically, Ms Lyons concedes that the Applicant asked for information in writing and that the Respondent refused to give the Applicant any information in writing.

[61] I am satisfied on the basis of the submissions made by the Respondent that the Respondent did not “provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

Was redeployment reasonable in all of the circumstances?

[62] In the discussions held between the Applicant and the Respondent on 5 February 2014 the Applicant was offered the opportunity of taking on a role as a sales representative in the Direct Sales department of the Respondent’s business. The Applicant declined this offer and instead sought that the Respondent provide alternative employment for the Applicant in an administrative role within the Respondent’s business.

[63] Ms Lyons in her witness statement described the discussion around this point which took place on 5 February 2014 as follows:

“9. Andrew made it fairly apparent that he was not interested in the role that we were offering him in our direct sales team and requested that he instead be re-deployed to the Admin department. Our receptionist had experienced reduced duties when an automated phone system was installed during 2013 and we had been able to find her additional work within the administration team. Andrew stated that he should also have the same right that the receptionist did. I pointed out that the additional work that had been found for the receptionist constituted 3-5hrs per week at most and that there were no vacancies in the department and an unlikelihood of this occurring in the foreseeable future.”

[64] Mr Sellen in his witness statement describes the same discussion as follows:

“11. Robyn Lyons advised Andrew and Mr.O'Loughlin that his role of Collections Officer was being made redundant as a direct result of the sale of the business and the simplification of the company structure. I explained to Andrew that we had identified a redeployment opportunity for him in the Direct Sales Team and that we would provide him with any training and up-skilling he may require. No cold calling is required in this role as all sales are generated from inbound calls and emails. The key attributes of our sales team members are customer service skills and the ability to engage with prospective students, basic computer skills and some administrative work. The salary ($55K +commission) was also commensurate with Andrew's current level and provided him with the opportunity to move back to full time employment should he want that.”

And

“13. Andrew expressed a lack of interest in the role being offered but was asked to carefully consider his options and that we would talk further the following day.
In his written submission to the Commission the Applicant contended that the direct sales role was not suitable alternative employment because the role offered to the Applicant had hours of work from 10am to 7pm and these hours were unreasonable given the Applicant’s personal and family circumstances.”

[65] The Applicant was first employed by the Respondent in a full time capacity but this was, by agreement, changed to a part-time position and with reduced responsibilities when the Applicant suffered a family tragedy which necessitated him working reduced hours. The necessity to work reduced hours was still present as at the time of the dismissal.

[66] Ms Lyons in her oral submissions to the Commission said:

“PN398. ......we did make him an offer into the direct sales team.
PN399. Now, it might not have been the perfect job and the hours might not have suited Andrew at the time but it was a job and it was on the same salary that he was already receiving and it would have meant that, had he been in that role, had any jobs come up in our administration department he could have applied for that and been redeployed into that role. As we have done with direct sales staff in the past.”

[67] On the balance of probabilities I concluded that the offer of a direct sales role was not an offer of redeployment which was reasonable in all the circumstances of this matter.

[68] I understand the point of view of the Applicant that he considered the existing administrative work performed by the Receptionist was work that he could perform and which could have been the basis for an alternative job for the Applicant. However at the time the decision was made by the Respondent to dismiss the Applicant there simply was no available job in administration for the Applicant to do. The Reception/Administration position was already occupied.

[69] I also note the submission made by Ms Lyons that redeployment to another entity within the group was not possible as one entity only had one employee and the other entity was located in Brisbane.

Conclusion as to Genuine Redundancy

[70] A dismissal will only be a genuine redundancy if all of the requirements of s.389 are met.

[71] In the present matter the requirement of s.389(1)(a) has been met.

[72] In the present matter the requirements of s.389(1)(b) have not been met.

[73] Therefore the dismissal of the Applicant was not a case of a genuine redundancy.

Is the dismissal unfair?

[74] The decision that the dismissal of the Applicant was not a case of a genuine redundancy resolves the jurisdictional objection of the Respondent. This then requires the Commission to consider whether the dismissal is or is not an unfair dismissal within the meaning of s.387 which is as follows:

“387 Criteria for considering harshness etc.

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

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

[75] In this matter none of the criteria in s.387(a), (b), (c), (d) and (e) are relevant. The criteria in s.387(f), (g) and (h) are relevant to this application.

s.387(f) and (g) the degree to which the size of the employer’s enterprise and 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

[76] In the present matter the Respondent is a relatively small employer having 68 employees as at the date of dismissal and having no HRM specialists or expertise. However the issue which the Respondent was dealing with was a redundancy and for which there were specific processes detailed in the relevant modern award.

[77] It is clear from the way in which the Respondent has conducted this case that the Respondent has never conceded that it was covered by the Educational Services (Post-Secondary Education) Award 2010.

[78] Mere smallness of a business or mere lack of in-house HRM specialists or expertise cannot excuse an employer from failing to make appropriate enquiries as to which modern award or modern awards may cover and apply to the employer and its employees. Since the commencement of the Fair Work Act in 2010 it has been clear that private sector businesses are most likely to be covered by one or more modern awards. The wealth of information which is readily and easily available to the public about the modern award system means that the even the smallest employer with no in-house HRM expertise can find out what modern award will apply to their employees.

[79] Once the correct modern award is identified it doesn’t require any HRM specialist or expert to read and understand the basic obligations and entitlements provided for in a modern award.

[80] In the present matter the coverage of the Educational Services (Post-Secondary Education) Award 2010 is relatively clear and the language of clause 8 is relatively simple.

[81] In the present matter these two criteria would not operate in favour of a finding that the dismissal was fair.

387(h) any other matters that the FWC considers relevant

[82] It is specifically relevant to any consideration as to whether the dismissal was harsh unjust or unreasonable to take into account that the Respondent made a reasonable business decision to restructure its business and that this led to the Applicant’ job being made redundant.

[83] Whilst the dismissal was not a genuine redundancy for the purposes of s.389 it was nevertheless a real situation of a redundancy.

[84] The Respondent can rightly be criticised for not complying with the consultation requirements of clause 8 of the Educational Services (Post-Secondary Education) Award 2010 but it is relevant to note that the Respondent did meet with the Applicant and his representative to discuss the redundancy and did so very soon after the decision had been made to restructure the finance team of the Respondent. That discussion included possible alternative employment.

[85] A practical question for consideration is whether the outcome in this matter would have been any different even if the Respondent had complied with its obligations under clause 8 of the Educational Services (Post-Secondary Education) Award 2010. Having considered all of the material before the Commission in this matter I would conclude that even if the Respondent had complied with its obligations under the award the outcome would have been the same. At the very most the date of termination may have been delayed by a few days.

[86] This criteria would support a finding that the dismissal was fair.

Conclusion

[87] Having considered each of the relevant criteria under s.387 I conclude that the dismissal of the Applicant was not harsh, nor unjust nor unreasonable.

[88] The application in this matter is therefore dismissed.

COMMISSIONER

Appearances:

Mr A. Rabel on his own behalf

Ms Lyons on behalf of the Respondent

Hearing details:

2014.

Melbourne:

June, 5.

Attachment 1

List of Authorities provided by the Applicant

Richard Goskowski v AGR Asia Pacific[2010] FWA 7507

Ulan Coal Mines Ltd v Henry Jon Howarth[2010] FWAFB 3488 (10 May 2010)

Kekeris v Hartrodt P/L[2010] FWA 674 (2010) 62 AILR 101-171

Brian Roy v SNC Lavalin Australia[2013] FWC 7309 PR5423230

Ulan Coal Mines v Honeysett & Others, [2010] FWAFB 7578, (2010) 199 IR 363,

Amadon Travel Management v David Joseph, [2014] FWC 1228

Joseph v Amandon Pty Ltd[2013] FWCFB 8539 (11 November 2013)

Roy Morgan Research Ltd [2013] FWCFB 8936 (20 November 2013)

UES (Internationl) Pty Ltd v Leevan Harvey[2012] FWAFB 5241

Jenny Craig Weight Loss Centres Pty Ltd v Margolina[2011] FWAFB 9137 (23 December 2011)

Deakin University v S Rametta[2010] FWAFB 4387 (15 June 2010)

Technical and Further Education Commission [2014] FWCFB 714 (29 January 2014)

Matthew Curtis v Djassagun College, [2011] FWA 6482, PR514836

Chamia v Quikfund Australia, [2012] FWA 7637, PR528760

Byrne v Australian Airlines (1995) 185 CLR 410 at 465

John Morissey v Transit Australia[2012] FWA 7988, PR529205

Carol Conlon v Anthony Dickinson T/A Pay Book P/L [2012] FWA 7989, PR529206

Christos Papathanasiou v HBS Group Pty Ltd, PR541626, [2013] FWC 6838

Michael Ball v Metro Trains Melbourne PR528877, [2012] FWA 7729

Jones v Dept of Energy and Minerals, (1995) 60 IR 304 at 308

Dibb v Commissioner of Taxation, (2004) 136 FCR 388

Shepherdson v Binders Compendiums Menu Covers T/A John Batman Group, [2012] FWAFB 7675, PR528802

MacLeod v Alcyone Resources, [2014] FWCFB 1542, PR548362

Maureen Dixon and Suzanne McCarthy v Natures Organics Pty Ltd[2013] FWC 9720, PR545568

Mackay Taxi Holdings v Kaye Wilson[2014] FWCFB 1043

Jones v Dunkel [1959] HCA 8

Suridge v Boral Windows[2012] FWA 3126

Iannello v Motor Solutions Australia[2010] FWA 3125

Ho v AP Eagers[2010] FWA 5897

Pitceathly, Stephen v Diona Pty Limited T/A Diona Pty Limited,[2011] FWA 478,  PR506172

Maswan v Escanda[2011] FWA 4239, PR511174

Monks v John Holland Group Pty Ltd,[2012] FWA 6453, PR527299>

 1   Witness statement of Neil Shilbury, CEO Careers Training Group P/L para 4)

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