Shant Safarian v Australian Institute of Company Directors

[2021] FWC 4909

[2021] FWC 4909

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shant Safarian
v
Australian Institute of Company Directors
(U2021/2981)

COMMISSIONER JOHNS SYDNEY, 10 AUGUST 2021

Application for Relief of Unfair Dismissal – Genuine Redundancy – Reasonable Redeployment.

Introduction

[1] On 9 April 2021 Shant Safarian (Applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work FW Act 2009 (FW Act) for a remedy in respect of his dismissal by Australian Institute of Company Directors (Employer/Respondent/AICD).

[2] On 23 April 2021 the Employer filed a response to the unfair dismissal application. It objected to the Commission exercising jurisdiction in relation to the matter on the basis that, it contended, the dismissal was a case of genuine redundancy.

[3] If the termination was a genuine redundancy, then the Applicant’s application for an unfair dismissal remedy must be dismissed. If the termination was not a genuine redundancy, it becomes necessary to determine if termination of employment was unfair.

[4] On 12 May 2021 I accepted the Applicant’s submission that in the interests of resolving the matter in a fair, just and quick fashion, the jurisdictional objection and the merits of the matter be heard together. Consequently, the matter was listed for jurisdictional and merits arbitration on 8 June 2021.

[5] At the arbitration the Applicant was represented by Ms Renae Kumar who was instructed by Mr George Azzi. Ms Kumar called the Applicant to give evidence on his own behalf and be cross-examined.

[6] At the arbitration the Respondent was represented by Mr Nicholas Condylis who was instructed by Ms Leila Moddel and Mr Thomas Du. Mr Condylis called four witnesses as follows:

Ms Kathy Russell	Human Resources Manager, AICD
Ms Elines Naranjo	Recruitment Business Partner, AICD
Mr Vince Di Chiara	Chief Digital and Information Officer, AICD
Mr Michael Sribney	Head of Digital Products and Platforms, AICD

[7] In coming to this decision, the Commission, as presently constituted, has had regard to the filed material (listed below), the oral evidence and other documents tendered during the determinative conference:

Exhibit	Document title
Directions dated 27 May 2021
Notice of Listing dated 12 May 2021
1	Forms: F2 – Unfair Dismissal Application dated 8 April 2021
2	Forms: F52 – Application for an order to production of Documents dated 15 May 2021
2a	Draft Order no date
3	Order for Production dated 27 May 2021
Documents Produced by Respondent
4a	1	Recruitment Request Form User Experience (UX) Designer dated 13 March 2017
4b	1	Position Description User Experience (UX) Designer dated 10 April 2017
4c	2	Position Description Service UX Designer with tracked changes no date
4d	2	Position Description Service UX Designer no date
4e	2	Position Description User Experience (UX) Designer no date
4f	3	Job Advertisement Product Designer x3 Vacancies dated 10 May 2021
4g	3	Job Advertisement Product Designer x3 Vacancies dated 21 April 2021
4h	3	Job Advertisement Service UX Designer dated 13 October 2020
4i	4	Letter of Offer dated 21 April 2021
4j	4	Letter of Offer dated 27 April 2021
4k	5a	Applicant’s Appraisal Rating dated 22 February 2018
4l	5a	Applicant’s Appraisal dated 30 March 2018
4m	5b	12 Month Performance Appraisal 2018/2019
4n	5b	OKRs and Performance Review – Mid Year dated 15 January 2019
4o	5c	12 Month Performance Appraisal 2019/2020
5	Applicant’s Outline of Submission dated 27 May 2021
6	Applicant’s Witness Statement of Shant Safarian dated 25 May 2021
4o	5c	12 Month Performance Appraisal 2019/2020
6a	SS-1	Seek Job Advertisements dated 21 May 2021
6b	SS-2	Letter of Offer dated 2 September 2016
6c	SS-3	Position Description User Experience (UX) Designer dated 10 April 2017
6d	SS-4	Letter of Offer dated 30 May 2017
6e	SS-5	Letter of Offer dated 24 October 2017
6f	SS-6	Letter of Offer dated 3 March 2020
6g	SS-7	Position Description Service UX Designer no date
6h	SS-8	Email from Vince Di Chiara re Response to your Questions dated 14 October 2020
6i	SS-9	Organisational Restructure Notification Letter dated 19 November 2020
6j	SS-10	CV no date
6k	SS-11	Redundancy Letter dated 12 March 2021
6l	SS-12	Email to Kathy Russell re Signed Agreement dated 22 March 2021
7	Forms: F3 Employer Response to Unfair Dismissal Application dated 23 April 2021
8	Respondent’s Outline of Submission of Jurisdiction dated 17 May 2021
8a	Annexure A	Differences between Enterprise UX Designer Role & Product Designer Role no date
9	Respondent’s Witness Statement of Elines Naranjo dated 14 May 2021
9a	EN-1	Position Description User Experience (UX) Designer dated 10 April 2017
9b	EN-2	Position Description Service UX Designer no date
9c	EN-3	Email to Kathy Russell re Record – Recruitment Conversations with Shant Safarian dated 19 April 2021
9d	EN-4	Email to Kathy Russell re Case Instructions and PD – Product Designer Role dated 8 March 2021
9e	EN-5	Email to Applicant re Interview for Product Designer Role no date
9f	EN-6	Differences between Enterprise UX Designer Role & Product Designer Role no date
9g	EN-7	Interview notes dated 4 March 2021
10	Respondent’s Witness Statement of Kathy Russell dated 14 May 2021
10a	KR-1	Position Description User Experience (UX) Designer dated 10 April 2017
10b	KR-2	Position Description Service UX Designer no date
10c	KR-3	Email to Applicant re Follow up Conversation no date
10d	KR-4	Email from Matthew Johnson re Shant Safarin dated 8 March 2021
11	Respondent’s Witness Statement of Matthew Johnson dated 14 May 2021
11a	MJ-1	Position Description User Experience (UX) Designer dated 10 April 2017
11b	MJ-2	Email to Kathy Russell re Shant Safarin dated 8 March 2021
11c	MJ-3	Termination by Redundancy Letter dated 12 March 2021
12	Respondent’s Witness Statement of Michael Sribney dated 14 May 2021
12a	MS-1	Position Description Service UX Designer no date
12b	MS-2	Position Description Service UX Designer with tracked changes no date
12c	MS-3	Position Description Product Designer no date
12d	MS-4	Differences between Enterprise UX Designer Role & Product Designer Role no date
12e	MS-5	Email to Applicant re Interview for Product Designer Role no date
12f	MS-6	Product Designer Case Study – March 2021
12g	MS-7	The Virtual Boardroom – Solution 1 & 2 no date
13	Forms: F53 Notice that a person has a lawyer or paid agent dated 28 April 2021
14	Forms: F52 – Application for an order to production of Documents dated 1 June 2021
14a	Draft Order no date
15	Order for Production 1 June dated 2021
Documents Produced by Applicant
16a	3	Invoice 1/6
16b	3 & 5	Invoice 2/6
16c	3 & 5	Invoice 3/6
16d	4	Design Estimate dated 30 March 2021
16e	7	University Enrolment – Semester 1
16f	7	University Enrolment – Semester 2
16g	7	University Enrolment – Semester 3
17	Outline of Submissions in Reply
18	Applicant’s Chronology
19	Applicant’s Witness Statement in Reply
19a	SS2-1	Emails regarding interview dated 2 March 2021 and 3 March 2021
19b	SS2-2	Medication label
19c	SS2-3	Dentist Letter
19d	SS2-4	University Course Enrolment
19e	SS2-5	Design Estimate dated 30 March 2021
19f	SS2-6	Invoices for Design Work
19g	SS2-7	2018-2019 Performance Appraisal
20	Respondent’s Outline of Reply Submission dated 4 June 2021
21	Respondent’s Witness Statement of in Reply Kathy Russell dated 3 June 2021
22	Respondent’s Witness Statement of in Reply Michael Sribney dated 3 June 2021
23	Respondent’s Witness Statement of in Reply Elines Naranjo dated 3 June 2021
24	Respondent’s Witness Statement of in Reply Vince Di Chiara dated 3 June 2021

Background

[8] A substantial number of matters were either agreed between the parties or not otherwise substantially contested. I make the following findings of fact:

a) On 7 September 2016 the Applicant commenced employment with the Respondent, AICD, in the role of UX Designer on a fixed term contract. 1 Although the Applicant was initially employed for only 6 months his employment continued.

b) On 30 May 2017 the Applicant entered a second fixed term contract of employment with AICD as UX Developer. 2 It was a full-time role for 10 months.

c) On 3 October 2017 the Applicant started in the permanent position of Enterprise UX Designer with AICD. 3

d) On 3 March 2020 the Applicant was offered a fourth contract of employment for the role of Enterprise UX Designer.

e) In all the time of the Applicant’s employment he worked on the planned rebuild and relaunch of AICD’s new website. He worked with two other developers in a small team. He also worked closely with a design agency engaged by AICD called “North”. At no stage during his employment were there any concerns raised about the Applicant’s conduct or performance.

f) The Applicant’s employment was not covered by a Modern Award or an enterprise agreement.

g) On 4 May 2020 Vince Di Chiara commenced employment with AICD as its Chief Digital and Information Officer. 4

h) In or around mid-2020 senior management of AICD, informed employees that it was undergoing a restructure. 5

i) On 29 September 2020 the Applicant incorporated Some Group Pty Ltd (ACN 644 730 898) (Some Group) with two friends. 6

j) On around 30 September 2020:

i. the Applicant was informed by Vince Di Chiara, Chief Digital and Information Officer, that his role would become redundant as part of a restructure. 7

ii. Mr Di Chiara told the Applicant that three new roles were being created with the title Service UX Designer. 8

iii. The Applicant was invited to apply for the role. 9

k) Also on 30 September 2020 Mr Di Chiara provided the Applicant with a letter confirming what happened at the meeting. 10

l) Likely late September 2020 the Applicant accessed a copy of the position description for the Service (UX) Designer role.

m) On 7 October 2020 the Applicant was advised that the pay grade for the Service (UX) Designer role was “Grade 13” and that it paid $164,000 per annum.

n) On 14 October 2020 the Applicant applied for the Service UX Designer role. 11

o) On 20 October 2020 Mr Di Chiara again wrote to the Applicant. He confirmed receipt of Mr Safarian’s application for the UX Designer role. 12 Mr Di Chiara made it clear to the Applicant that the hiring decision was being left until the appointment of the new Head of Digital Products and Platforms. There was nothing unreasonable about the position taken by Mr Di Chiara. I reject the submission made by Ms Kumar that Mr Di Chiara should have redeployed the Applicant into the UX Designer role.

p) On or around 21 October 2020 Elines Naranjo, Recruitment Business Partner assessed the Applicant’s application for the UX Designer role. She also conducted a screening interview with Mr Safarian by telephone. Ms Naranjo considered the Applicant to be a strong candidate and was prepared to recommend him for interview. 13 Ms Naranjo was of the view that some of the functions that the Applicant was performing in his UX Designer role were transferable to the Service Designer role.14

q) On 19 November 2020 Mr Di Chiara sent the Applicant a letter 15 stating he recommended the Applicant for the Service UX Designer Role. Mr Di Chiara was prepared to recommend the Applicant because of his:16

i. UX design experience,

ii. passion and his enthusiasm, and

iv. ability to learn and grow. 17

r) On 18 January 2021 Michael Sribney commenced employment with AICD as the new Head of Digital Products and Platforms. 18

s) As Head of Digital Products and Platforms Mr Sribney was the decision maker about whether to appoint the Applicant to the Product Designer role.

t) On or around 25 February 2021 the Applicant was informed by Mr Sribney that the new Service UX Designer role was changing to a Product Designer role. Mr Sribney asked the Applicant to edit the position description for the new role to reflect the change. 19

u) On 26 February 2021 the Applicant provided Mr Sribney with his comments. 20 The changes were not substantial. The Applicant provided the marked-up document to Mr Sribney. Mr Sribney accepted the Applicant’s recommended changes and updated the Product Designer role description.21

v) Mr Di Chiara stood by his recommendation in favour of the Applicant when the role was changed Product Designer. 22

w) On 1 March 2021 Ms Naranjo met with the Applicant. She advised him of the role change. Further, Ms Naranjo advised the Applicant that he would need to present a case solution to Mr Sribney at a meeting on 4 March 2021. There was a contest in the evidence about whether the Applicant was advised (as he claimed) that the meeting on 4 March 2021 was not a formal interview. At best the information provided by Ms Naranjo was unclear. Consequently, at that point in time the Applicant was entitled to believe that it was an informal process that he was going through. Notwithstanding, that does not excuse the poor preparation made by the Applicant.

x) On 2 March Ms Naranjo sent the Applicant an email 23 which provided him with the “case instructions” for what was clearly described as “your interview”24 on 4 March 2021. Attached were case instructions. The case instructions25 were clear and included information about:

i. the purpose of the case study,

ii. the areas that will be assessed,

iii. "preparing and presenting your response”,

iv. the scenario background and an instruction that,

“Your challenge is to prepare a plan and recommendations around how you would design the virtual boardroom experience. As a part of designing the new experience, provide visual examples of what the new experience might look like and how you would go about validating the design and experience.”

y) Also on 2 March 2021 the Applicant attended a dentist appointment where an unplanned procedure was performed that required him to take the day as sick leave. 26

z) On 3 March 2021 the Applicant attended work as normal 27, however, the Applicant was taking pain medication.28

aa) On 4 March 2021:

i. The Applicant attended the meeting with Mr Sribney and Ms Naranjo. 29

ii. The Applicant himself ranked his strengths as “1 – Visual Design. 2 – UX research; and 3 – Service design”.

iii. Mr Scribney assessed the Applicant as “Not Suitable”. Ms Naranjo assessed the Applicant as “Not Suitable for the Role (but a good candidate).” 30

iv. In the interview the Applicant did not present any visual examples. 31

v. He was asked by Mr Sribney to provide a visual presentation by Monday 8 March 2021. 32

vi. The Applicant did not take the available time to provide the visual presentation on Monday, 8 March 2021, rather he provided it to Mr Sribney later that day. 33 The visual presentation was poor quality and included spelling mistakes.34

vii. Mr Sribney assessed the Applicant’s performance at the interview and in the visual presentation and formed the opinion that he did not have the skills or competencies required for the Product Designer Role. 35

bb) Around 4 March 2021 Mr Sribney advised Ms Kathy Russel, Human Resources Manager, that the Applicant was not prepared for the meeting. Ms Russel queried whether the Applicant may have misunderstood the instructions. 36

cc) On 5 March 2021:

i. A follow-up meeting with Mr Sribney, Ms Russel and the Applicant took place. 37

ii. The Applicant was asked if he understood the instructions for the interview. 38

iii. The Applicant said “Yes”. 39

dd) On 8 March 2021 Ms Kelly advised Matthew Johnson, Head of Human Resources about the outcome of the selection and the recommendation that Mr Safarian be made redundant.

ee) On 10 March 2021 the Applicant was advised that he would not be appointed to the Product Designer role. 40

ff) On 12 March 2021 the Applicant met with Mr Sribney and Ms Kelly where the Applicant queried the decision not to appoint him to the Product Design role. 41 Mr Sribney confirmed that the decision was primarily based on the Applicant’s performance at the meeting on 4 March 2021.

gg) On 12 March 2021:

i. The Applicant was informed of the requisite skills he lacked for the Product Designer Role, and

ii. The Applicant was advised that his employment had come to an end by reason of redundancy. 42

hh) On a phone call with the Applicant, Mr Di Chiara said words to the effect that he was surprised by Mr Sribney’s decision. 43

ii) Mr Di Chiara said words to the same effect of, “I’m surprised” to Mr Sribney. 44

jj) However, Mr Di Chiara later said he was not surprised when he looked at the case study provided by the Applicant. Mr Di Chiara observed that what the Applicant produced was not to the level that he would have expected in terms of details, visuals and subject matter. 45

kk) Mr Di Chiara said to Mr Sribney “Just go back and just double-check” that the Applicant understood the case study and what was involved. 46

ll) On 19 March 2021 the Applicant’s employment ended. 47 After 19 March 2021 the Applicant performed work for Some Group for the first time.48

mm) Following the Applicant’s dismissal two candidates were recruited for Product Designer roles, 49 although it took approximately 2 months to fill the vacancies.

nn) At the time of the dismissal the Applicant was paid a salary of $124,706 per annum.

oo) On termination the Applicant was paid 8 weeks redundancy and 3.2 weeks in lieu of notice (i.e. the Applicant was effectively paid up until the week beginning 7 June 2021).

pp) On 8 April 2021 the Applicant filed his unfair dismissal application.

qq) By reason of the payment of the redundancy and notice, by the time of the hearing on 8 June 2021 the Applicant has incurred negligible economic loss.

[9] The Applicant submits he was unfairly dismissed and seeks an Order that he be compensated.

Protection from Unfair Dismissal

[10] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[11] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“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.

[12] There is no dispute, and the Commission, as presently constituted, is satisfied, the Applicant has completed the minimum employment period, and earned less than the high-income threshold. Consequently, the Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal.

[13] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the FW Act.

Was the dismissal unfair?

[14] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

Was the Applicant dismissed?

[15] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the FW Act.
[16] In the present matter it is common ground that the Respondent dismissed the Applicant.

[17] Consequently, the Commission, as presently constituted, finds that the Applicant was dismissed from his employment with the Respondent within the meaning of s.386 of the FW Act.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[18] A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (the Code).

[19] In the present matter the Respondent was not, at the time of the dismissal, a small business. At the time of the dismissal the Respondent employed over 15 people.

[20] Consequently, the Commission as presently constituted, finds the Respondent was not a small business employer within the meaning of s.23 of the FW Act.

Was the dismissal a genuine redundancy?

[21] The Respondent submits I should dismiss the application because the dismissal was a case of genuine redundancy. Section 389 of the FW Act defines the meaning of genuine redundancy:

“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.”

Was the Applicant’s job no longer required to be performed?

[22] To be satisfied the dismissal was a case of genuine redundancy, I must be satisfied the role of Enterprise UX Designer with AICD was no longer required to be performed by anyone because of operational changes to the Respondent. The Applicant did not contest that the job of Enterprise UX Designer was no longer required.

[23] Having considered the evidence and the Respondent’s submissions I am satisfied that, following a restructure of AICD’s operations, the role of Enterprise UX Designer was no longer required to be performed.

Did the Respondent comply with any obligation to consult?

[24] Before considering whether a respondent complied with any obligation to consult it must first be established that such an obligation existed.

[25] In the present matter the employment of the Applicant was not covered by any Modern Award or enterprise agreement. Consequently, there was no obligation to consult with the Applicant about the operational decision. There being no obligation to consult, s398(1)(b) of the FW Act is not relevant in the present matter.

Was redeployment reasonable in all the circumstances?

[26] The only substantive contest between the parties relevant to whether the dismissal was a genuine redundancy concerned whether redeployment was appropriate in all the circumstances of this case.

[27] Section 389(2) provides that even if the Commission is satisfied the role of Enterprise UX Designer was no longer required to be performed by anyone and that all consultation obligations in a modern award or enterprise agreement that applied to the Applicant’s employment have been complied with, I must consider if redeployment was appropriate in all the circumstances.

[28] Whether redeployment of an employee is considered reasonable will depend on the circumstances that exist at the time of the dismissal .50

[29] In determining whether the redeployment was reasonable a number of matters may be relevant including:

a) whether there exists a job or a position or other work to which the employee can be redeployed; 51

b) the nature of any available position;

c) the qualifications required to perform the job;

d) the employee’s skills, qualifications and experience; and

e) the location of the job in relation to the employee’s residence and the remuneration (pay and entitlements) which is offered. 52

[30] The Applicant pointed to the newly created “Product Designer” role as a position that he could have been redeployed into. The Applicant gave the following evidence (not seriously contested) about the differences between a “UX Design” role and “Product Design” role:

•  “Product design is the process of creating products that solve users’ problems or addressing specific needs.

•  ‘UX’ is an abbreviation for User Experience. UX design is the process of designing products, which can be either digital or physical, with the objective of enhancing the experience of users of the product, to maximise the value the product provides to them.

•  The focus of UX design is to think about ‘how does the product look, feel and function (with an emphasis on useability) to the user?’

•  For me, the first task of UX design is research, using techniques such as ‘journey mapping’, ‘persona analysis’ and ‘heuristic review’. This involves putting yourself in the shoes of a potential product user and asking yourself questions such as ‘what function do they want from this product?’ and ‘how can the product best perform the function?’. The second task is strategy involves building an information architecture for the product, by designing how it should function and how users should interact with it. This involves the use of tools and software, such as Adobe and Axure, and can include the building of storyboards, sketches, sitemaps, prototypes, etc. The third task is testing the design of the product, including by techniques such as useability testing, heuristic review, and analysis of user feedback and activity.

•  Essentially, UX design is just a type of product design.

•  Generally, based on my knowledge and experience within the industry, a UX designer will have both product design and graphic design (also known as ‘UI’ or ‘user interface’) experience. However, based on my knowledge and experience within the industry, a UX designer will often, in addition to product design skills, also have tertiary qualifications in human sciences, including psychology.

•  I have often seen the terms product design and UX design being used interchangeably.

•  The skillsets of a product designer and a UX designer overlap:

•  each designs products;

•  each designs ‘touchpoints’ and how they interact with each other;

•  each can perform design work for the same types of products;

•  each generally uses the same tools (eg. Adobe, Axure) to perform the design work;

•  and each generally uses or has training in the same research techniques.”

[31] I accept the Applicant’s evidence about the similarities between the two roles. I am left in no doubt that his experience in UX Design was a very good foundation for the Product Designer role.

[32] However, there were differences between the redundant role and the new role. Ms Naranjo gave evidence that the “Product Designer role was different .. because it was a broader role focusing not only on the customer journey but looking at the overall customer experience and how it aligns with the business goals.” 53

[33] Mr Sribney gave evidence about his decision to change the proposed position from “Service UX Designer” to a “Product Designer” role. He said,

“The reasons for this was the role skills and experience that I was looking for were more suited to what I would call a “full-stack” designer. This meant someone who could carry out a broad range of duties including customer research, service design, UX design and all visual design aspects with an agile delivery squad.” 54

[34] Mr Di Chiara’s evidence supports a finding that the Product Designer role was a broader role that that of UX Designer. 55

[35] The Respondent submits redeployment was not appropriate in the circumstances because:

1. “The differences between the two roles:

a. The first relevant circumstance is the difference between the Enterprise UX Designer role and the Product Designer role. The relevant AICD officers gave close consideration as to whether there was an alternative role for Mr Safarian’s redeployment. The ultimate role identified as being potentially suitable was the role of Product Designer. Mr Safarian even played a part in setting the description of that role.

…

b. It should be uncontroversial that the Product Designer role required greater depth and breadth of experience compared to the Enterprise UX Designer role. Mr Sribney described the Product Designer role in the following way:

A Product Designer is involved from end to end in the process of defining the product or experience. A Product Designer must be able to understand what the customer needs are and then develop a solution by creating a prototype, testing and validating that prototype, before turning the prototype into the final design to suit the client need. The role requires depth and breadth of UX and design experience. Typically, this experience is found in senior candidates who have a wide range of experience.

c. That is to be contrasted with the Enterprise UX Designer role, which was more focused upon the design of the customer journey and assisting in the creation of content to enhance the customer experience.

d. The Product Designer role carried more responsibility than the Enterprise UX Designer role and required extensive UX and design experience to be properly performed

e. The related point is the relevance of the higher remuneration of the Product Designer role. At the time of Mr Safarian’s termination, his role as an Enterprise UX Designer had a base salary of $124,706. The Product Designer role had a base salary of $150,000. The higher remuneration for the Product Designer role accorded with the greater responsibility the position carried.

2. Genuine and considered opinion of the AICD officers:

a. The second relevant circumstance is the fact that the key decision makers, namely, Mr Sribney, Ms Russell, Ms Naranjo, and Mr Johnson, all formed the same view that Mr Safarian did not have the necessary skills and competencies for the Product Designer role.

b. There is no suggestion that any of the relevant AICD officers were influenced by any irrelevant or illegitimate considerations when assessing Mr Safarian’s suitability for the new role, nor is there any suggestion of any hostility or negative sentiment between the employer and employee (save perhaps the final meeting on 12 March 2021 after the decision had already been made.

c. To the contrary, the evidence shows that Mr Safarian was personally liked by senior management, and it is unlikely to be in dispute he was even recommended for the position of Services UX Designer.

d. Mr Sribney, who may be described as the main decision maker, gave close consideration to Mr Safarian’s suitability for the new role. He assessed Mr Safarian’s performance at the 4 March 2021 interview and the visual presentation submitted later that day. In his opinion, Mr Safarian did not demonstrate the skills and competencies necessary for the Product Designer role at that interview or in the visual presentation. Ms Naranjo had a similar recollection of Mr Safarian’s performance at the interview and in the visual presentation subsequently submitted.

e. At the meeting later the same day, Mr Sribney stated the following to Ms Naranjo, Ms Russell and Mr Johnson:

I don’t think Shant is suitable for the role. Internal feedback from a member of the project he’s involved in mentioned he was not very hands on in his role. His response to the case study further reinforced this as he turned up to the interview with handwritten scribbles in a notebook and didn’t have a visual presentation. I gave him additional time to produce a visual presentation, and he’s sent through two slides, it clearly doesn’t demonstrate that he has the skills and competencies required for the Product Designer role”.

f. Mr Sribney then ensured in a follow up meeting on 5 March 2021 with Mr Safarian that his assessment was not misguided by any material misapprehension by Mr Safarian about the interview or the visual presentation. That follow up meeting confirmed to Mr Sribney that his assessment of Mr Safarian’s suitability for the Product Designer role was accurate.

g. On the information available to Mr Sribney it was his genuine and considered judgment that Mr Safarian should not be redeployed to the Product Designer role. That conclusion was based on:

i. Mr Safarian’s lack of requisite experience;

ii. Mr Safarian’s lack of key attributes including a creative, design and solution-based mindset, strong communication, storytelling and visual presentation skills, and strong research, analysis and mapping skills;

iii. the Product Designer role was a higher grade to the Enterprise UX Designer role and required extensive experience, which Mr Safarian did not demonstrate at the interview or in his visual presentation;

iv. negative internal feedback on Mr Safarian’s past performance; and

v. Mr Safarian’s failure to demonstrate competencies at the level required for the Product Designer role.

h. Mr Sribney’s decision was supported by Ms Naranjo, who was present at the 4 March 2021 interview and 5 March 2021 follow up meeting, and Ms Russell, who was also present at the 5 March 2021 follow up meeting. Mr Johnson accepted the view that was -arrived at by Mr Sribney, and supported by Ms Russell and Ms Naranjo.

i. These are all experienced professionals1 whose evidence demonstrates that they were acting in good faith when assessing Mr Safarian’s suitability for the new role. Their viewpoint on that question was genuine and considered.

j. Their viewpoint was also reasonable. Mr Sribney, in particular, assessed all relevant information available to him, and based on his professional experience and understanding of the requirements for the Product Designer role, determined in his mind that Mr Safarian was not suitable for the role. Mr Naranjo, Ms Russell and Mr Johnson all supported that determination.

k. Relating this back to s 389(2) of the FW Act, it would not have been reasonable in those circumstances, for any of the following things to then happen:

i. for Mr Sribney to still recommend Mr Safarian for the new role. He had formed a genuine and considered view against Mr Safarian’s redeployment;

ii. for Ms Naranjo to still recommend Mr Safarian for the new role. She had a similar amount of information available to Mr Sribney and voiced no opposition to Mr Sribney’s views at any time after the 4 March 2021 interview;

iii. for Ms Russell to still recommend Mr Safarian for the new role. She did not attend the 4 March 2021 interview and could reasonably rely upon Mr Sribney’s assessment, which was supported by Ms Naranjo;

iv. for Mr Johnson to ignore Mr Sribney’s assessment and Ms Russell’s recommendation, and still make the decision to redploy Mr Safarian to the new role. Mr Johnson could reasonably rely upon Mr Sribney’s assessment and Ms Russell’s recommendation.

l. In those circumstances, where experienced officers of the AICD gave close consideration to the question of Mr Safarian’s redeployment to the Product Designer role and thereafter formed the genuine and considered view that he was not suitable for that role, it would not have been reasonable for the AICD to still redeploy Mr Safarian to that new role.

3. Mr Safarian was the only candidate being considered:

a. The third relevant circumstance is the fact that at the time the relevant decision was made, Mr Safarian was the only candidate being considered for the Product Designer role Mr Sribney states

On 4 March 2021, I attended an interview with Ms Naranjo, as co-interviewer, and Mr Safarian. The purpose of the interview was to assess Mr Safarian’s suitability for redeployment into the Product Designer role. The role was not advertised internally or externally. This was particularly so, as Mr Di Chiara had recommended Mr Safarian as the preferred candidate for the Service UX Designer, turned Product Designer role.

b. The absence of any internal or external recruitment process meant two things. Firstly, it meant that the AICD complied with what may be a requirement under s 389(2) of the FW Act to independently assess whether Mr Safarian was suitable for the new role before advertising internally or externally.

c. As the Full Bench stated in Ulan Coal Mines (emphasis added):

[34] … Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.

d. Secondly, it meant that the individuals making the decision as to Mr Safarian’s suitability were not influenced by considerations connected with another candidates preferred suitability.

e. That was the error made by the employer in Bleyerveen. In that case, the employer considered the employee’s suitability for the new role in the context of a broader competitive recruitment process. By considering other applicants concurrently with the employee, the relevant officers’ assessment of the employee was conflicted due to consideration of other ‘preferred candidates’. As Commissioner Johns stated:

[69] Having considered the evidence in its totality from the various witnesses put forward by both the Applicant and the Respondent I am satisfied that the Applicant had the skills, qualifications and experience to undertake the Key Responsibilities of the Mission Facilitation Consultant role. Although she was unsuccessful in the external recruitment process that only evidences the fact that she was not the preferred candidate when assessed against those with whom she was competing in that process. It is not evidence that she could not perform the role. The totality of the evidence establishes that the Applicant was skilled and competent to perform the Key Responsibilities of the Mission Facilitation Consultant role to the required standard.

f. The same finding would not be open in the present case given that Mr Scribney, Ms Russell and Ms Naranjo’s assessment of Mr Safarian’s suitability for the new role could not have logically been influenced by any other applicant’s comparative performance. There were no such other applicants, and external recruitment only commenced after Mr Safarian’s departure.

g. It follows that the integrity of the genuine and considered view arrived at by Mr Sribney, and supported by Ms Naranjo and Ms Russell, was not compromised by any other candidates’ comparative performance.

h. This supports the proposition that, as a matter of fact, it would not have been reasonable for the AICD to redeploy Mr Safarian to the new role given that such a decision was made even in the absence of any other candidate for the role.” 56

[36] The Applicant submits redeployment was appropriate in the circumstances because:

1. “First, the nature of the available Product Designer role was objectively within the Applicant’s qualifications, skills and experience. This is evident from:

a. Mr Safarian’s curriculum vitae,

b. the high degree of expected overlap between the work functions and activities of a (UX) Designer and a Product Designer in general and in particular within the AICD (which requires work to be performed on a small number of products), and

c. the AICD’s own internal documentation about Mr Safarian’s work performance.

2. Second, although the remuneration offered was higher than the role in which Mr Safarian had been employed, the Enterprise (UX) Designer Role was the same as that which had been offered for the Service (UX) Designer Role for which Mr Di Chiaro had determined Mr Safarian to be a suitable and recommended candidate.

3. Third, the decision-maker, Mr Sribney, and he was the only relevant decision maker as each of the AICD’s Human Resources employees relied on Mr Sribney’s assessment of Mr Safarian’s presentation, did not consider Mr Safarian’s performance reviews, speak to Mr Safarian’s previous supervisors or consider any other work by Mr Safarian. Instead, Mr Sribney acted upon a presentation delivered by Mr Safarian in circumstances where Mr Safarian was told the presentation was not an interview and believed it to be a forum to discuss his ideas. This was not a proper opportunity for Mr Safarian to demonstrate his skills. It was not reasonable and not fair for Mr Sribney to form a view about Mr Safarian’s skills, or capacity to perform in the Product Designer Role, based on the presentation or any subsequent discussions about the presentation.” 57

[37] Having considered the evidence, I make the following findings:

a) On 19 March 2021 (the date of dismissal) there was a vacancy in a Product Designer role.

b) In his redundant role, the Applicant performed much of the work listed as key responsibilities of the Product Designer role. 58 That is to say, there were significant similarities between the two roles. However, I accept that the Product Designer role was a more senior role with greater responsibility, depth and breadth of experience compare to the Enterprise UX Designer role. Upgrading the role was an intentional decision made by Mr Sribney as the newly appointed Head of Digital Products and Platforms.

c) The Applicant had a wide breadth of knowledge and understanding of key responsibilities of the Product Designer role. 59

d) The Applicant had relevant skills and experience for the Product Designer role with a Bachelor of Applied Design and 13 years’ experience in design with 6 years’ experience in user experience (UX) design. 60

e) Mr Sribney was aware that the Applicant was highly recommended for the position. 61

f) The process for determining the Applicant’s suitability included a single interview on 4 March 2021, assessment of visual materials provided by the Applicant and a follow up discussion the next day. 62

g) The Applicant was given 48 hours’ notice to prepare for the interview, 63 however, he was ill for at least one of the days. The Applicant took personal/sick leave on 2 March 2021. He attended work on 3 March 2021 but was taking pain relief mediation.

h) The Applicant made no request to adjourn the interview because of any medical condition.

i) The Applicant was given an “inside running” at winning the Product Designer role. He was the only internal candidate and was not required to compete with any external candidates. Having regard to the recommendation of Mr Di Chiara and initial assessment made by Ms Naranjo, it could be said that the appointment was Mr Safarian’s to lose.

j) Although there was initially a confusing message from Ms Naranjo about whether the meeting on 4 March 2021 was to be a formal interview, the follow up email made clear that it was. Further, the Applicant was provided with clear instructions about what was expected during the interview.

k) The Applicant performed poorly at the interview. Further, he failed to follow instructions to bring visual materials to the interview.

l) Notwithstanding his failure to provide visual materials at the interview the Applicant was given a further opportunity to do so. The Applicant chose not to take all the time made available to him (i.e. over the weekend) to submit the visual material (presumedly because he had annual leave booked for the Monday and was taking a long weekend). The material provided by the Applicant was not at the expected standard.

m) Mr Sribney relied solely on the interview, the visual presentation provided by the Applicant and a conversation with Rebekah Mansour, Delivery Lead for the “Web 2020” project that Mr Safarian worked on, in assessing the Applicant and determining that he was not suitable for the role. 64

n) Mr Sribney did not review the Applicant’s performance reviews 65 or have discussions with his direct manager.66

o) Ms Naranjo relied solely on the interview for her assessment that the Applicant was ‘not suitable for the role but a good candidate.’ 67

p) The location of the Product Design role presented no barrier to appointment.

[38] I note that the Product Designer role was to be paid higher than the redundant UX Design role. The higher remuneration was an indication of the greater responsibility attached to the position. However, this fact need not have presented a barrier to the Applicant’s appointment. If he had been assessed as not quite at a standard to be entitled to the additional remuneration, the Respondent could have offered the position to him at a lesser rate, explaining the same to him and setting out a pathway to increases in remuneration subject to the attainment of certain performance measures and or additional training. I accept the evidence of the Applicant that he “would have engaged and undertaken … any training or upskilling that the AICD believed [he] needed.” 68

[39] I have carefully considered the interview notes of 4 March 2021. In focusing on the interview notes I observe that the Applicant confirmed the accuracy of them. 69 I have also considered the poor and inadequate visual material prepared by the Applicant and submitted by him later on 4 March 2021 (although he had been given all weekend to submit them and could have taken more time to prepare the same). He had annual leave booked for the Monday and, it seems, he preferred to get the visual material in earlier than was asked of him. The rushed job is evidenced in the visual material that he produced.

[40] For reasons that still escape me Mr Safarian squandered the opportunity provided to him as the preferred candidate for appointment to the Product Design role. I explored this with Mr Safarian during the hearing 70. His response was unconvincing.

[41] During the hearing 71 I also explored with Mr Safarian his non-compliance with the instructions given to him in relation to the case study:

The Commissioner: But the problem is you were given a specific instruction to bring visual examples to the interview?

Mr Safarian: I - I understand.  I understand, and I didn't do that.  I understand that I was asked to do that and I understand that I didn't do that.

The Commissioner: So when you're dealing with customers, when you talk about the notion of human centred design you weren't very human centred about the interview, were you?  The people who were interviewing you told you what they wanted - - -?

Mr Safarian: Yes.

The Commissioner: … and you decided not to give them what they wanted?

Mr Safarian: If you want to put it that way, yes, sure.  Yes.

The Commissioner: It wasn't focusing on them as the customer very much, was it?

Mr Safarian: No, I wasn't focusing on them, I was focusing on myself at the time.

The Commissioner: You made that choice?

Mr Safaraian: I made that choice.

[42] In the circumstances of this matter, the negative assessment made of the Applicant’s ability to perform the Product Designer role was reasonable. Mr Sribney was the decision maker. He is an experienced manager of digital product teams. He has “worked in product management for approximately 15 years”. 72 Consequently, I am satisfied that Mr Sribney has a depth of experience and understanding about product management and product design such that he was best placed to make an assessment about the Applicant’s application for the Product Designer role. Although Mr Safarian impressed me with his explanation of the roles, I am not an expert in the field of product management and design and I should not rush to correct the experienced assessment made by Mr Sribney.

[43] I am concerned that Mr Sribney did not consider all of the objective evidence about the Applicant’s past performance. However, Mr Scribney was entitled to assess the Applicant’s approach to solving problems as set out in the case study. The instructions were clear. I reject any contention that the Applicant did not understand what was expected of him. After the interview he confirmed on 5 March 2021 that he understood what was expected of him.

[44] It is somewhat perplexing that the Applicant performed so poorly at the interview and failed to follow the instructions about the presentation. I reject any suggestion that the dental procedure 2 days before and the fact that the Applicant was still on pain relief medication affected his performance. The Applicant did not seek to adjourn the interview. Consequently, the Applicant must bear responsibility for the negative assessment made of him by Mr Sribney (and Ms Naranjo). The fact that the Applicant performed so badly caused concern for those involved in the process. Consequently, they were concerned to ensure that the Applicant understood what was expected of him. He confirmed the same.

[45] It might be said that there was no urgent need to make the appointment. It might be argued that a more substantive enquiry could have been made of the Applicant about his poor performance at the interview. Indeed, some might argue that there is no reason why the Applicant could not have been given another opportunity or a second interview. However, the fact that other steps could have been taken, does not mean that the steps that were taken were unreasonable.

[46] Consequently, in all the circumstances referred to above, where the Applicant was given a preferred candidate opportunity, but failed to demonstrate the necessary skills and competencies for the Product Designer role, the Commission, as presently constituted, is satisfied that it would not have been reasonable for the Applicant to be redeployed within the Respondent’s enterprise.

[47] Consequently, I find that the dismissal was a case of genuine redundancy within the meaning of s.389 of the FW Act.

[48] The jurisdictional objection raised by the Respondent is upheld and the Applicant’s unfair dismissal application must be dismissed.

[49] An order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

Ms R Kumar, Counsel for the Applicant.
Mr N Condylis, Counsel for the Respondent.

Hearing details:

2021.
8 June.
Sydney.

Printed by authority of the Commonwealth Government Printer

<PR732680>

 1   Witness Statement of Kathy Russel dated 14 May 2021 (Exhibit 10), at Court Book p 243.

 2   Witness Statement of Shant Safarian dated 25 May 2021 (Exhibit 6), at Court Book p. 125.

 3   Ibid.

 4   Witness Statement of Vince Di Chiara dated 3 June 2021 (Exhibit 24), at Court Book p. 443.

 5   Witness Statement of Shant Safarian dated 25 May 2021 (Exhibit 6), at Court Book p. 127.

 6   Further Witness Statement of Shant Safarian dated 7 June 2021 (Exhibit 19), at Court Book p. 333.

 7   Witness Statement of Shant Safarian dated 25 May 2021 (Exhibit 6), at Court Book p. 127.

 8   Transcript PN1005.

 9   Witness Statement of Shant Safarian dated 25 May 2021 (Exhibit 6), at Court Book p. 128.

 10   VDC-3 to Exhibit 24.

 11   Witness Statement of Shant Safarian dated 25 May 2021 (Exhibit 6), at Court Book p. 128.

 12   VDC-4 to Exhibit 24.

 13   Witness Statement of Elines Naranjo dated 14 May 2021 (Exhibit 9), at Court Book p. 219. See also EN-3 to Exhibit 9.

 14   Transcript PN838.

 15   VDC-5 to Exhibit 24.

 16   Witness Statement of Shant Safarian dated 25 May 2021 (Exhibit 6), at Court Book p. 129 and SS-9.

 17   Transcript PN1087.

 18   Statement by Michael Sribney dated 14 May 2021 (Exhibit 12), Court Book p. 271.

 19   Statement by Michael Sribney dated 14 May 2021 (Exhibit 12), Court Book p. 273.

 20   Statement by Michael Sribney dated 14 May 2021 (Exhibit 12), Court Book p. 274 and MS-2.

 21   Statement by Michael Sribney dated 14 May 2021 (Exhibit 12), Court Book p. 274 and MS-3.

 22   Transcript PN994-995.

 23   Witness Statement of Elines Naranjo dated 14 May 2021 (Exhibit 9), at Court Book p. 220.

 24   MS-5 to Exhibit 12, Court Book p. 294.

 25   MS-6 to Exhibit 12, Court Book p. 295.

 26   Further Witness Statement of Shant Safarian dated 7 June 2021 (Exhibit 19), at Court Book p. 331 and SS2-3.

 27   Further Witness Statement of Shant Safarian dated 7 June 2021 (Exhibit 19), at Court Book p. 331.

 28   Further Witness Statement of Shant Safarian dated 7 June 2021 (Exhibit 19), at Court Book p. 332.

 29   Statement by Michael Sribney dated 14 May 2021 (Exhibit 12), Court Book p. 275.

 30   EN-7 to Exhibit 9, Court Book p. 239.

 31   Statement by Michael Sribney dated 14 May 2021 (Exhibit 12), Court Book p. 275.

 32   Ibid.

 33   Ibid.

 34   MS-7 to Exhibit 12, Court Book p. 296.

 35   Statement by Michael Sribney dated 14 May 2021 (Exhibit 12), Court Book p. 276.

 36   Witness Statement of Kathy Russell dated 14 May 2021 (Exhibit 10), Court Book p. 246.

 37   Witness Statement of Kathy Russell dated 14 May 2021 (Exhibit 10), Court Book p. 246.

 38   Transcript PN489.

 39   Transcript PN494.

 40   Statement by Michael Sribney dated 14 May 2021 (Exhibit 12), Court Book p. 277.

 41   Witness Statement of Shant Safarian dated 25 May 2021 (Exhibit 6), at Court Book p. 133.

 42   Statement by Michael Sribney dated 14 May 2021 (Exhibit 12), Court Book p. 277-278.

 43   Transcript PN1085.

 44   Transcript PN1088-1089.

 45   Transcript PN1089-1090.

 46   Transcript PN1091-1092.

 47   Witness Statement of Shant Safarian dated 25 May 2021 (Exhibit 6), at Court Book p. 134.

 48   Further Witness Statement of Shant Safarian dated 7 June 2021 (Exhibit 19), at Court Book p. 334.

 49   Statement by Michael Sribney dated 14 May 2021 (Exhibit 12), Court Book p. 278.

 50   Ulan Coal Mines v Honeysett (2010) 199 IR 363, 370 [26].

 51   Technical and Further Education Commission (t/a TAFE NSW) v Pykett (2014) 240 IR 130, [36].

 52   Ulan Coal Mines v Honeysett (2010) 199 IR 363 [28].

 53   Statement of Elines Naranjo dated 14 May 2021 (Exhibit 9), Court Book p. 220.

 54   Statement of Michael Sribney dated 14 May 2021 (Exhibit 12), Court Book p. 273.

 55   Statement of Vince Di Chiara dated 3 June 2021 (Exhibit 24), Court Book pp. 444-445.

 56   Respondent’s Outline of Submissions on Jurisdiction dated 17 May 2021, Court Book p. 207-211.

 57   Applicant’s Outline of Submissions dated 27 May 2021 (Exhibit 5), Court Book p. 119-120.

 58   Transcript PN201-267.

 59   Ibid.

 60   Transcript PN271-285.

 61   Transcript PN1140.

 62   Transcript PN1141.

 63   Transcript PN289-290, PN488.

 64   Transcript PN1237-1238.

 65   Transcript PN1142.

 66   Transcript PN1146.

 67   Transcript PN289-290, PN808.

 68   Witness Statement of Shant Safarian dated 25 May 2021 (Exhibit 6), at Court Book p. 130.

 69   Transcript PN419.

 70   Transcript PN481-487.

 71   Transcript PN468-472.

 72   Statement of Michael Sribney dated 14 May 2021 (Exhibit 12), Court Book p. 271.