1
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.
[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.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB8037.htm
[2014] FWC 5073
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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.
[2014] FWC 5073
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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
[2014] FWC 5073
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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
[2014] FWC 5073
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(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.
[2014] FWC 5073
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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
[2014] FWC 5073
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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.”
[2014] FWC 5073
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[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.
[2014] FWC 5073
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[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
http://www.fwc.gov.au/awardsandorders/html/pr546288.htm
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(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
[2014] FWC 5073
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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
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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
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“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
[2014] FWC 5073
14
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.
[2014] FWC 5073
15
[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.
[2014] FWC 5073
16
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.
Printed by authority of the Commonwealth Government Printer
Price code C, PR553611
1 Witness statement of Neil Shilbury, CEO Careers Training Group P/L para 4)
OF FAIR WORK . ... AUSTRAI LY THE SEAL
17
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
