Mr Mansoor (Marcus) Khoshaeen v Laing O'Rourke Australia Pty Ltd T/A Laing O'Rourke

[2015] FWC 5239

[2015] FWC 5239

FAIR WORK COMMISSION

DECISION

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

Mr Mansoor (Marcus) Khoshaeen
v
Laing O'Rourke Australia Pty Ltd T/A Laing O'Rourke
(U2014/16610)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 3 AUGUST 2015

Summary: unfair dismissal application – whether applicant made “genuinely redundant” – s.385(d) – s.389 – selection process – requirement to apply for available position – ethnic bias – concentration of Irish nationals.

[1] This decision concerns an application under s.394 of the Fair Work 2009 (“the Act”) by Mr Mansoor (Marcus) Khoshaeen, who is seeking an unfair dismissal remedy in relation to his dismissal by Laing O’Rourke Australia Pty Ltd T/A Laing O’Rourke (“the employer”).

[2] Mr Khoshaeen performed duties as a Land Surveyor for the employer on various APLNG projects from November 2013 until such time as his position was declared redundant, and he was dismissed on 10 December 2014.

[3] The employer has objected to the Commission hearing Mr Khoshaeen’s application in this regard because it contends that Mr Khoshaeen’s employment came to an end because of “genuine redundancy” for the purposes of s.389 of the Act.

[4] In this regard, s.385(d) of the Act provides as follows:

385 What is an unfair dismissal

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

…

(d) the dismissal was not a case of genuine redundancy.

[5] Section 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.

[6] The onus to make out the grounds under s.389 of the Act falls upon the employer.

[7] The Explanatory Memorandum to the Fair Work Bill 2008 provides some insight into the scope of meaning of a redundancy as contemplated under the Act:

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 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.

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 a dismissal is not a case of genuine redundancy if it would have been reasonable in all the 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. [...]

Consideration

[8] The work performed by Mr Khoshaeen was subject to the Professional Employees Award 2010 (“the award”). Clause 9 of the award concerns the consultation requirements for major change.

[9] The employer contended that Mr Khoshaeen’s employment came to an end for reason his position was no longer required owing to the project on which he was working (the Condabri South project) being wound up, and there being no alternative project to which he could have could have been redeployed.

[10] The cessation of the APLNG projects generally caused the employer to reduce its establishment from 300 staff and 650 wages employees (as at September 2014) to 180 staff and 350 wages employees (at December 2014). The number of Land Surveyors fell from 16 to 5 during the same period (September 2014 to December 2014). The Condabri South project had always been scheduled for completion by mid-December 2014.

[11] There is no reasonable challenge to the evidence of the employer in this regard, and Mr Khoshaeen did not so insist in any event. The Condabri South project wound up as it approached completion and the employer’s requirements for Land Surveyors declined as a consequence. The requirement of s.389(1)(a) of the Act is made out by the employer.

[12] At the time the completion of the Condabri South project became imminent, the employer notified in writing the affected employees of the circumstances, explained the reasons for the decision it had taken, and undertook to discuss measures to avert or mitigate the adverse effects of the change. The affected employees also met with their supervisors immediately prior to the written notification being provided. Mr Khoshaeen was provided 4 weeks’ notice of his dismissal, and during that time he met with representatives of the employer about the redundancy and alternative employment options.

[13] The employer contended that it liaised with Mr Khoshaeen over some weeks to discuss the prospects of alternative employment. Amongst other steps, this included bringing to Mr Khoshaeen’s notice a vacancy - at that point not yet listed - on the Wheatstone project in Western Australia (in the employer’s Western Region of operations).

[14] There is no challenge to the employer’s claim that it discharged its obligations under s.389(1)(b) of the Act, in so far as the employer, in the context of the consultation provisions in the award, engaged with Mr Khoshaeen for the purposes of making efforts to mitigate the effects of the redundancy decision.

[15] In the context of s.389(2) of the Act, I note that Mr Khoshaeen was required to make an application for the position on the Wheatstone project. However that position was filled by another person who was made redundant from the Condabri South project, and who had applied for the same position. The other person was selected for the position, according to the employer’s evidence, presumably because in the view of the relevant decision maker in the Western Region, the other employee had the required skills and was preferred for the role.

[16] The evidence given on behalf of the employer was that there were other Land Surveyors from the APLNG projects who had been made redundant who applied for the position on the Wheatstone project. Upon interviews being completed, resumes being reviewed and discussions with the Senior Land Surveyor being completed, a particular Land Surveyor was selected.

[17] Whilst applying for an advertised position on a competitive basis is not a common approach to dealing with redeployment in a redundancy context, it will be appropriate where more than one employee seeks to be redeployed to a vacant position, or where the employer places reasonable weight upon the attraction of a required skill set. I indicate further – in the context of s.389(2) of the Act - that the decision maker in respect of the offer of employment at the Wheatstone project was independent of the employer in respect of the Condabri South project. That is, the immediate or local employer could not influence the outcome of the decision made in the business’ Western Region. There was no reasonable challenge (or any challenge at all) to this claim. The employer, thus, was unable to redeploy Mr Khoshaeen to the Wheatstone project at its own initiative, in any event.

[18] Mr Khoshaeen’s principal contention in relation to the Wheatstone project position concerned the selection process for the project, which he believed was corrupted, in so far as the successful candidate was underqualified, and only preferred because he was an Irish national, and there was said to be a concentration of Irish nationals on the Wheatstone project. Mr Khoshaeen agitated for the Commission to inquire into the recruitment conduct on the Wheatstone project and ethnic bias therein - but that is not a matter that is within the scope of the current application.

[19] The employer, for its part I add, claimed the Wheatstone project was multinational in its ethnic profile and submitted that the claim by Mr Khoshaeen was not able to be made out.

[20] Mr Khoshaeen did himself identify another position at the Roy Hill site in Western Australia. The employer took steps to assist Mr Khoshaeen in ensuring his application was considered within that recruitment process. However, that position was withdrawn subsequently and no appointment was made. Thus, the Roy Hill position was not a position to which Mr Khoshaeen could ever have been reasonably redeployed in any event.

Conclusion

[21] The employer has satisfied the requirements of s.389 of the Act and Mr Khoshaeen’s employment, therefore, came to an end for reason of a “genuine redundancy.” Because of the operation of s.385(d) of the Act - as set out above - Mr Khoshaeen’s application under s.394 of the Act must be dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr M. Khoasheen, Applicant

Mr D. Miller, of Australian Industry Group, for the Respondent

Hearing details:

Brisbane

2015

30 July

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