Mr Mohammad Rahimi v Perth Education Group Pty Ltd T/A Technical College of Western Australia (Tcwa)

[2015] FWCFB 1427

[2015] FWC 7123 [Note: An appeal pursuant to s.604 (C2016/2074) was lodged against this decision - refer to Full Bench decision dated 18 March 2015 [[2015] FWCFB 1427] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Mohammad Rahimi
v
Perth Education Group Pty Ltd T/A Technical College of Western Australia (TCWA)
(U2014/13196)

COMMISSIONER CLOGHAN PERTH, 21 OCTOBER 2015

Application for relief from unfair dismissal - jurisdiction - genuine redundancy.

[1] This is an application by Mr Mohammad Rahimi (Mr Rahimi or Applicant) to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Perth Education Group Pty Ltd T/A Technical College of Western Australia (Employer or TCWA).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] In response to the application, the Employer asserts that the Applicant was not unfairly dismissed, as his dismissal was a case of genuine redundancy.

[4] At the hearing, the Applicant was represented by Mr Hulmes of counsel. Mr Rahimi gave evidence on his own behalf.

[5] The Employer was represented by Mr French of counsel. Evidence on behalf of TCWA was given by:

• Ms R Modgill − Principal Executive Officer; and



• Mr R Singh – Student Support Officer.

[6] This is my decision and reasons for decision on the Employer’s jurisdictional objection that Mr Rahimi was not unfairly dismissed pursuant to the provisions of s.389 of the FW Act.

RELEVANT LEGISLATIVE FRAMEWORK

[7] For a person to be protected from unfair dismissal, it is necessary that he or she be dismissed from their employment.

[8] Section 385 of the FW Act relevantly provides that a person has been unfairly dismissed, if the person has been dismissed, and that dismissal was not a case of genuine redundancy.

[9] The meaning of genuine redundancy can be found at s.389 of the FW Act, 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.”

[10] Shortly put, where the Commission is satisfied that a dismissal is a genuine redundancy, the dismissal cannot be an unfair dismissal.

CONSIDERATION

[11] The meaning of genuine redundancy in the FW Act has three statutory “tests”. The first test is whether the employer no longer required the person’s job to be performed by anyone because of the requirements of the business.

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

[12] The Explanatory Memorandum to the Fair Work Bill 2008 (Explanatory Memorandum) provides examples of changes to the operational requirements of an enterprise which will lead to a genuine redundancy at paragraph 1548. They are relevantly as follows:

“ 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.”

[13] Having considered the guidance provided by the Explanatory Memorandum, I find, on undisputed evidence, that the condition required in s.389(1)(a) of the FW Act is met. The Employer no longer required the position of Marketing Manager to be performed by a discrete person because of changes in the operational requirements of the business. As a consequence, Mr Rahimi was dismissed on the grounds of genuine redundancy.

[14] The Applicant conceded that the test in paragraph 389(1)(a) for a genuine redundancy has been met by the Employer. 1

[15] Consequently, the Applicant submitted that his dismissal could not be characterised as a genuine redundancy on the remaining two “tests”, which I now turn to.

s.389(1)(b) – Has the employer complied with any obligation in a modern award, or enterprise agreement that applied to the employee to consult about the redundancy?

[16] The Applicant was employed as Marketing Manager on or around 15 August 2012. The Marketing Manager reported directly to the “Principal Executive Officer” which, by another name, is the Chief Executive Officer (CEO). Ms Modgill is the CEO.

[17] It appears from the Employer’s organisational chart 2 that there are 11 positions in the structure. Mr Rahimi reported directly to the CEO and does not have any positions reporting directly to him.

[18] Mr Rahimi has provided, as part of his witness statement, a copy of the advertisement inviting applications for the position of Marketing Manager to which he replied. The advertisement states:

“Reporting to the Principal Executive Officer the position of the Marketing Manager is responsible for successful marketing of TCWA courses and recruitment of students. The role will particularly focus on marketing business courses to international students directly overseas and through recruitment agents located across the globe.

Key Responsibilities:

• Developing and implementing appropriate sales and marketing strategies for international target markets



• Actively seek potential students. Meet with prospective students;



• Seek professional assistance for prospective students and have sufficient knowledge of student pathways



• Recruit new agents in potential markets (locally and internationally) and manage all agent files



• Report on competitor activity, market trends and opportunities.



• Participate in formulating the College’s marketing budget on an annual basis with the Principal Executive Officer and check that it conforms to annual and monthly expectations”.

[19] The Applicant submits that his dismissal was not a genuine redundancy because the Employer did not meet the “test” of consulting with him about his redundancy pursuant to a modern award.

[20] The Applicant submits that the Educational Services (Post-Secondary Education) Award 2010 (Post-Secondary Modern Award) applied to his employment.

[21] With the exception of the Applicant’s submission, the Commission does not have any documentary evidence demonstrating that the Post-Secondary Modern Award applied to his employment prior to his dismissal.

[22] The Post-Secondary Modern Award is an industry award and covers employees in various classifications. Mr Rahimi asserts that he falls within the classification “D.1.8 General Staff Level 5”.

[23] A “general staff member” is defined in clause 3 of the Post-Secondary Modern Award and includes employees engaged in “clerical, administrative, professional and technical work”.

[24] Clause 13 of the Post-Secondary Modern Award requires employers, on commencement of employment, to advise employees of their classification level in writing. I have no evidence that the Employer provided Mr Rahimi of his classification in writing, according to the Modern Award. Further, the Applicant’s annual salary was approximately 16.3% higher than the minimum annual salary in the Post-Secondary Modern Award for a Level 5 position.

[25] Mr Rahimi gave evidence that, prior to obtaining the position of Marketing Manager, he was employed with Ray Fort Migration (RFM), Malaysia. In RFM, he assisted university students migrating to Australia. Mr Rahimi, when employed by RFM, was a “marketing manager and senior consultant…managing all case officers, visa officers, as well as assistant consultant, and also in legislation assisting the registered migration agents…to make sure everything is updated, and the visas are going in a proper way and follow compliances”. 3

[26] As the Marketing Manager for TCWA, Mr Rahimi was, on a stand-alone basis, responsible for marketing and recruiting overseas students to the Employer’s courses, either directly or through recruitment agents, located worldwide.

[27] Relevantly sections 46, 47 and 48 of the FW Act are as follows:

“46 The significance of a modern award applying to a person

(1) A modern award does not impose obligations on a person, and a person does not contravene a term of a modern award, unless the award applies to the person.

(2) A modern award does not give a person an entitlement unless the award applies to the person.

47 When a modern award applies to an employer, employee, organisation or outworker entity

When a modern award applies to an employee, employer, organisation or outworker entity

(1) A modern award applies to an employee, employer, organisation or outworker entity if:

(a) the modern award covers the employee, employer, organisation or outworker entity; and

(b) the modern award is in operation; and

(c) no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity.

…

48 When a modern award covers an employer, employee, organisation or outworker entity

When a modern award covers an employee, employer, organisation or outworker entity

(1) A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to coverthe employee, employer, organisation or outworker entity.

…”

[28] Simply put, a modern award applies to an employee pursuant to the statute and not by submission. In considering the statute and whether a modern award applies, the Commission has ordinarily adopted the “principal purpose test”.

[29] Three particular cases are often referred to by Members of the Commission. They are:

• Leigh Carpenter v Corona Manufacturing Pty Ltd (PR925731) (Carpenter);



• R Branch v APIR Systems Limited (PR938031) (Brand); and



• Halasagi v George Weston Foods Limited [2010] FWA 6503 (Halasagi).

[30] In Brand, the Full Bench stated at paragraphs [13] and [14]:

“[13] We note that the Commissioner adopted and applied a test based on the principal purpose for which the applicant was employed. She relied upon the Full Bench decision in Carpenter v Corona Manufacturing Pty Ltd in that respect An analysis of the authorities referred to in that case shows that industrial courts and tribunals have at different times adopted different formulations of the test to be applied in determining whether the work of an employee or group of employees is within a particular occupation or classification. One formulation requires that the question should be decided by reference to the major and substantial employment of the employee. Another formulation requires that the principal purpose or purposes of the employment be identified. In some cases the formulations have both been referred to. In one case a Full Bench of the Commission held that the principal purpose formulation was a refinement of the major and substantial employment formulation. A Full Court of the Federal Court of Australia, without reference to other authorities, adopted a test based on whether the employees were "engaged substantially" in the duties of the relevant occupation.

[14] In this appeal both parties accepted that the "principal purpose" formulation as stated in Carpenter v Corona Manufacturing Pty Ltd should be applied. We are content to decide this application on that basis. We should add, however, that we are satisfied that whichever of the formulations referred to might be applied, in this case the result would be the same [footnotes omitted].”

[31] Brand was also considered by the Full Bench in McMenemy v Thomas Duryea Consulting Pty Ltd T/A Thomas Duryea Consulting[2012] FWAFB 718 at paragraph [11]:

“[11] As already suggested above, her Honour approached the determination on the basis of whether or not the Appellant was employed in the above classification by reference to the principal purpose test as articulated in the Full Bench decision of the Australian Industrial Relations Commission (as it then was) in R Brand v APIR Systems Limited. That decision, in turn, cited the decision of the Full Bench of the Australian Industrial Relations Commission (as it then was) in Carpenter v Corona Manufacturing Pty Ltd, which stated relevantly as follows:

In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed. In this case, such an examination demonstrates that the principal purpose for which the appellant was employed was that of a manager…[footnotes omitted].”

[32] In Mr Rahimi’s circumstances, he was employed as a Manager (although not managing employees) in a senior strategic role within the Employer’s organisation. Mr Rahimi was not working “within” sales and marketing strategies but creating them for the Employer on an international basis.

[33] The descriptors in the job classifications in the Post-Secondary Modern Award are generic in nature. The descriptors are general in nature for a purpose. That purpose was explained on 28 March 2008, by the then Minister for Employment and Workplace Relations who made a request pursuant to s.576C(1) of the Workplace Relations Act 1996, that the AIRC undertake award modernisation (Request).

[34] The Request, amongst other matters, required modern awards:

• to be simple to understand, easy to apply and reduce the regulatory burden on business.

[35] Modern awards are not intended to:

• extend award coverage to those classes of employees, such as managerial employees who, because of the nature or seniority of their role, have traditionally been award free.

[36] As can be seen from the Request, the purpose of modern awards was not to extend coverage to “managerial employees who, because of the nature or seniority of their role, have traditionally been award free”.

[37] Mr Rahimi was at the second level in the organisation and reporting directly to the CEO. Some aspects of Mr Rahimi’s duties, because they are administrative in nature, will inevitably “fall” within the generic descriptors in the classification of General Staff Level 5. However, I am not satisfied, applying the principal purpose test, that his duties and responsibilities “fall” within such a general classification.

[38] In my view, the nature, quality of work performed and expected of the Marketing Manager went beyond an employee undertaking clerical and administrative tasks. While not determinative, Mr Rahimi’s tertiary qualification in engineering and a Master of Business Administration, illustrate that he was employed by TCWA for the principal purpose of achieving a significant business imperative. Applying the “principal purpose test” to Mr Rahimi’s position, is more appropriate, in my view, than attempting to correlate general duties of his position, to a job classification in the Post-Secondary Modern Award.

[39] By way of observation, I find it somewhat contradictory for Mr Rahimi to claim 60% of his duties as Marketing Manager overlapped with that of the Enrolment Officer, 4 and at the same time, assert that he undertook duties which, assume and require knowledge or training equivalent to, “a degree with subsequent relevant experience” or “extensive experience and specialist expertise or broad knowledge in technical or administrative fields”. In my view, the Applicant has downplayed his duties for one purpose and correlated them for another purpose.

[40] For the above reasons, I find that the Post-Secondary Modern Award did not apply to Mr Rahimi’s employment, and consequently, the Employer had no obligation to consult with him about making the Marketing Manager position redundant.

[41] Mr Rahimi did not submit, nor is there any evidence, to indicate that an enterprise agreement applied to his employment.

s.389(2) – Would it have been reasonable, in all the circumstances, for the person to be redeployed within the employer’s enterprise or associated entity?

[42] The short point by the Applicant is that he should have been redeployed to the position of Enrolment Officer. 5

[43] The position of Enrolment Officer is at the “third level” or bottom level of the organisation, and according to the organisation chart provided by the Applicant, reports to the “Student Support Officer”, Mr Singh.

[44] Mr Hulmes, quite correctly, submitted that what is “reasonable”, in the circumstances, has to be determined on a case by case reference to the objective facts.

[45] The objective facts are:

• the Employer is a small organisation of approximately 10 to 12 employees;



• Mr Rahimi was employed as the Marketing Manager;



• the Marketing Manager position reported directly to the CEO;



• the organisation has three (3) levels in its structure;



• the Enrolment Officer is on the third level (bottom level);



• the Marketing Manager position had, for example, an essential criterion of a “bachelor or higher qualification with specialization in marketing, sales or business administration”;



• the Enrolment Officer position is the first point of contact for potential students and the occupant is expected to have, for example, “good customer service and complaint management skills;



• other positions on the third level include the “Receptionist” and “Maintenance and Housekeeping”; and



• the Enrolment Officer reports to the Student Support Officer on the second level and a peer of Mr Rahimi, before his position was made redundant.

[46] Mr Rahimi describes, in his witness statement, the role of the Enrolment Officer as follows:

“Ms Tan’s primary duty was processing student applications and enrolments. This involved entering application details into a template letter of offer, and sending it to the applicant. Once the student’s fees were paid, she would send a template letter of confirmation to the student. I drafted each of these template letters in late 2012.”

[47] Before consideration of the objective facts, I now return to the Explanatory Memorandum at paragraphs 1551 and 1552:

“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.”

[48] There is a common misconception that, if an employee’s position is made redundant, there is an obligation upon the employer to redeploy the person into a position nominated by the employee and vacant. That is not the case, and unfortunately for the employee, it is not as easy as he or she thinks.

[49] For redeployment to another position to be reasonable, requires the employer, or in this case the Commission, to consider a number of factors.

[50] In the first instance, it is a question of whether a position is available. Obviously, if there is no position available, there is no capacity to redeploy a person into a position.

[51] If a position is available, the next question is whether there is a “match” between the skills and experience of the potential redeployee and the requirements of the vacant position. In some cases, there may be a “deficit” in the skills or experience of the potential redeployee and the vacant position. However, in other cases, the potential employee may be what is often described as “over qualified” for the vacant position.

[52] An employer, confronted with a potential redeployee who is either “under” or “over qualified’, is faced with two separate and distinct issues.

[53] If employers redeployed potential redeployees into vacant positions, irrespective of whether they were “under” or “over qualified”, it would be considered unwise. Such actions do not readily happen, and employers apply both a practical and a judgemental approach to redeployment. Put shortly, there is a necessity to be “wise before the event”.

[54] There is no dispute between the parties that the Employer advertised for the position of Enrolment Officer on 16 September 2014 because the incumbent was going on maternity leave for 12 months. The Employer’s evidence was that it considered redeploying Mr Rahimi into the position of Enrolment Officer, however, it was unable to do so because it was not an “eligible position” pursuant to an employer nominated visa scheme. The Employer came to this view after discussions with the Department of Immigration and Border Protection.

[55] The Applicant asserts that it was an “eligible position”. As I advised the parties in the hearing, it is not my role to make such a determination. The Employer acted on advice it received from the Department. In such circumstances, at most, it is arguable whether, or not, there was a vacant position into which Mr Rahimi could be considered for redeployment.

[56] I have evidence in which the Applicant describes himself as follows:

“Ryan [Mr Rahimi] is the Managing Director of World With No Boundaries Pty Ltd. He also advises clients for study options in Australia. Ryan completed his BA in Engineering at University of Tehran, one of the most prestigious universities in Asia in 1996. His 15-year experience in advertising, trading and service industry encouraged him to enrich his knowledge in international business. In 2007, he pursued his Master of Business Administration and graduated from Multimedia University (MMU), Malaysia in 2010. In 2010, Ryan was hired by Australian-Malaysian consulting firm in Kuala Lumpur as an Overseas Corporate Director. The company aided medium and above-medium class clients to migrate, establish a business, study, and invest in Australia. In 2012 he joined the Technical College of Western Australia as a Marketing Manager and Analyst in Perth. Ryan’s proposal “Innovative service marketing in Australian consulting firms” to two prestigious Australian universities was accepted and he was offered a PhD place in 2012. In 2015, Ryan establishes innovative company “World With No Boundaries Pty Ltd”, as a full-service immigration firm and international student placement agency based in Perth, WA.”

[57] It is said that management is a “balancing act”. Without hesitation, it can be said that a disinterested observer would say, “it would be unreasonable, if not perverse, to consider Mr Rahimi for routine clerical work required in the position of Enrolment Officer”. There would be a considerable imbalance between his skills and experience, and that required of the position of Enrolment Officer.

[58] Secondly, the same disinterested observer would say that, from an employer’s perspective, “deployment of Mr Rahimi into the Enrolment Officer’s position would most probably end up with employee dissatisfaction and associated difficulties”.

[59] On this occasion, the objective circumstances demonstrate such a wide variance between Mr Rahimi and the position of Enrolment Officer, to confidently say that it would have been unreasonable to deploy Mr Rahimi into the position.

CONCLUSION

[60] For the above reasons, I am satisfied and find that Mr Rahimi’s dismissal was a case of genuine redundancy and accordingly, is not unfair pursuant to s385 of the FW Act. Accordingly, the application must be dismissed. An Order dismissing the application is attached to this Decision.

COMMISSIONER

Appearances:

J Hulmes, of counsel, on behalf of the Applicant.

G French, of counsel, on behalf of the Employer.

Hearing details:

2015:

Perth,

16 April.

<Price code C, PR572972>

 1   Transcript PN619

 2   Exhibit A1 (2)

 3   Transcript PN80

 4   Transcript PN272

 5   Transcript PN805

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