| [2018] FWC 2277 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Adam Choukrallah-Kazemi
v
Singapore Airlines Limited
(U2017/11837)
COMMISSIONER JOHNS |
MELBOURNE, 20 APRIL 2018 |
Application for Relief of Unfair Dismissal – whether employee was dismissed – whether conduct or course of conduct by the employer forced employee to resign – constructive dismissal.
Introduction
[1] On 6 November 2017 Adam Choukrallah-Kazemi (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 the cessation of his employment with Singapore Airlines Limited (SAL).
[2] On 22 November 2017 SAL filed a response to the unfair dismissal application. In its reply SAL objected to the Commission exercising jurisdiction in relation to the matter on the basis that, it submitted, the Applicant was not dismissed.
[3] Attempts at conciliation were attempted, but the matter remained unresolved.
[4] On 8 December 2017, the Commission sought submissions from the parties about whether the Commission should conduct either a Determinative Conference (section 398) or a Hearing (section 399) in relation to the matter.
[5] Taking account:
a) any differences in the circumstances; and
b) the wishes;
of the parties to the matter, and considering whether a Hearing would be the most effective and efficient way to resolve to the matter. I decided to conduct a Determinative Conference.
[6] At the Determinative Conference on 6 February 2018:
a) the Applicant represented himself. He had previously filed a Witness Statement (Exhibit “A3”). He was cross-examined.
b) SAL was represented by Frances Thomas from the AiGroup. She had with her Ms G Rips also from the AiGroup. SAL called the following people to give evidence:
i. Kieran O’Toole, Senior Manager HR/Admin, South West Pacific. Mr O’Toole had previously filed a Witness Statement (Exhibit “R3”). He was not cross-examined.
ii. Gregory McJarrow, Area Manager NSW and ACT. Mr McJarrow had previously filed a Witness Statement (Exhibit “R6”). He was cross-examined.
iii. Dale Woodhouse, Senior Manager Market Development and Projects. Mr Woodhouse had previously filed a Witness Statement (Exhibit “R4”). He was not cross-examined.
[7] Also in advance of the Determinative Conference the parties filed the following submission, that I have had regard to in coming to this decision:
a) the Applicant’s Outline of Argument (Merits) (Exhibit “A1”),
b) the Applicant’s Outline of Argument (re Jurisdictional objection) (Exhibit “A2”),
c) SAL’s Outline of Argument (Merits) (Exhibit “R1”),
d) SAL’s Outline of Argument (re Jurisdictional objection) (Exhibit “R2”).
[8] The following matters were either agreed between the parties or not otherwise substantially contested. 1 Consequently, I make the following findings of fact:
a) On 5 May 2008 the Applicant commenced at Singapore Airlines in the position of Passenger Services Executive.
b) On 18 January 2010 the Applicant commenced in the position of Marketing Executive.
c) On 11 July 2011 the parties entered into a written employment contract for the position of “Marketing Executive Corporate Accounts” (Employment Agreement).
The contract provided that,
“2.2 The Company, at its absolute discretion, may transfer you to another position at any time on the substantive terms and conditions of your employment, prevailing at the transfer time.”
“10.4 If your job function is varied consistent with your skills, qualifications and experience, this will not constitute termination of your employment and the terms and conditions of this Agreement will continue to apply unless otherwise mutually agreed. “
“11.4 Redundancy pay not be payable when the Employee is not entitled to redundancy under the NES or where the Company obtains suitable alternative employment for the Employee prior to the termination of the Employee’s employment.”
d) On 17 June 2013 the Applicant commenced in the position of Regional Marketing Executive.
e) On 4 February 2014 the Applicant commenced in the position of Regional Marketing Manager SWP.
f) It is accurate that each time the Applicant was promoted it involved an increase in his status, responsibilities and or remuneration, however, the Employment Agreement was never replaced.
g) On 1 April 2015 the Applicant commenced in the position of Corporate & Pricing Marketing Manager.
h) On 5 February 2016 the Applicant’s position was re-titled to Marketing Manager – Pricing and Planning (Pricing and Planning Position). The position description provided that,
“Pricing - MMPP will oversee the National Pricing Unit (NPU) and work with the NPU to develop National pricing strategy and initiatives to improve pricing efficiency and productivity with the objective of optimising pricing to achieve AU’s SQ and MI all-in revenue targets. The NPU is responsible for all AU retail, wholesale and corporate fair setting, fair filling and fair distribution: both national and state.
Planning - the position provides WWP Regional Office, Area Marketing and State sales teams with a clear understanding of SIA’s sales and revenue performance in Australia and our position relative to our competitors. It is an initiator and proposer of marketing strategy to be implemented forthwith and on an ongoing basis.”
i) In or around early 2016 the Regional Vice President South West Pacific (the Regional VP), , in consultation with a number of senior commercial managers, formed the view that the marketing team in Australia, which had grown from 12 to 19 staff and a five-year period, had too many functions concentrated under the one senior manager, Dale Woodhouse. SAL began to explore possible new structures that would:
i. spread some of the commercial load and responsibilities more evenly across the management team; and
ii. optimise the portfolios across the sales and marketing teams to better achieve SAL’s commercial objectives, including driving direct sales alongside sales through the traditional distribution channels.
j) In or around early 2017, SAL also made the decision to centralise pricing globally. This meant that SAL did not need as many staff in the National Pricing Unit in Australia, nor the same level of expertise concentrated within the Unit.
k) On 24 July 2017 the Applicant and Dale Woodhouse had a telephone discussion. In that discussion:
i. Mr Woodhouse told the Applicant that his role would be changing and he would be reporting to Gregory McJarrow.
ii. Mr Woodhouse told the Applicant that he would need to speak further to Mr McJarrow for further detail.
l) On 4 August 2017 the Applicant and Mr McJarrow met and discussed the reorganisation of the marketing team and the portfolio of Manager of Marketing & Services NSW/ACT (Marketing and Services Position).
There was some dispute about the scope of the Marketing and Services Position in terms of whether it was Sydney-based or more broadly Sydney/ACT. At least by 22 August 2017 it was clearly understood that the position was NSW/ACT (although because the Ticket Office was located in Sydney, it remained a strongly Sydney focused role).
The position description provided that,
“This position is responsible and accountable for maintaining and generating passenger sales revenue by the Direct Sales channels for Singapore Airlines in NSW and ACT and helping Singapore Airlines meet and exceed business targets including passenger sales revenue for both SYD and CBR.
Care activities including fermenting sales, marketing and services strategies, aligned with national and Company objectives, to improve our overall standing and market penetration in wider community and specific trade groups, as well as cultivating business relationships to grow revenue and increase our brand awareness in the market. Event planning, management, development and implementation of initiatives and promotions with key trade/corporate/partners and sponsors to maximise our ROI and revenue opportunities.
The position oversees the day to day operation and administration of the Passenger Services Department which comprises Direct Sales and Ticket Office section is responsible for both SYD and ACT. This includes the management and development of the Ticket Office with implementation of strategies and initiatives to align Ticket Office functions and outcomes towards key commercial goals, whilst ensuring internal efficiency and high standards of external customer service in day to day dealings with all types of passenger/trade enquiries”
The relevant educational qualifications were said to be:
● recognise university degree in any discipline; and/or
● eight years or incapacity of direct sales manager/senior marketing executive/business development manager; verifiable track record will stop
The relevant experience was said to be:
● thorough understanding of the travel and market in both direct sales and marketing and its major distribution partners
● experience in pricing distribution
● understanding of airline revenue management
● interpersonal and negotiation skills; professional grooming
● high-level written and verbal presentation skills
● third party (trade, customer, partners, vendors, internal customers) engagement and negotiation
● sales strategy formulation, tactics and execution
● participating and/or leading stations/regional projects
● process redesign
● managing budgets and cost management
● data mining, data analysis and recommend solutions, benchmarking and reporting
● engage in appraised team staff members and handling of issues
● workplace efficiencies
● a degree of versatility is required to accomplish the tasks.
m) On 10 August 2017 the Applicant and Mr McJarrow met. The content of the meeting is not agreed.
n) On 16 August 2017 the Applicant applied for the position of Manager, Commercial and Consumer Insights with FOX SPORTS Australia.
o) On 16 August 2017 the Applicant applied for the position of Director of Revenue with TMS Asia.
p) On 16 August 2017 the Applicant applied for the position of Pricing Manager with Vodafone.
q) On 18 August 2017 the Applicant applied for the position of Strategic Pricing Manager with LexisNexis.
r) On 22 August 2017 the Respondent wrote to the Applicant in the following terms,
“… I am pleased to advise effective from 01 September 2017, your position will be retitled to Marketing & Services Manager NSW/ACT.
2. In addition to the re-title, you will now be responsible to the Area Manager NSW & ACT.
3. Please note all other terms and conditions of your employment will remain unchanged…” 2
s) On 22 August 2017 the Applicant was invited to a phone interview with LexisNexis.
t) On 23 August 2017 the Applicant was unsuccessful for the role of Pricing Manager – Vodafone.
u) On 1 September 2017 the Applicant commenced in the Marketing and Services Position. The Applicant did not immediately treat this appointment as a repudiation of his contract of employment. He did not accept that purported repudiation and resign with immediate effect. Rather he worked in the role until he resigned on 27 September 2017. He worked in the new position while he engaged in a job search.
v) On 7 September 2017 the Applicant wrote to Kieran O’Toole and stated that his position of Marketing Manager – Pricing and Planning was made redundant and he was entitled to redundancy pay.
w) On 8 September 2017 Mr O’Toole wrote back to the Applicant advising that he was not redundant and his employment was never terminated.
x) On 11 September 2017 the Applicant and Mr O’Toole met to discuss the Applicant’s redundancy query.
y) On 26 September 2017 the Applicant accepted an offer of employment from LexisNexis pursuant to contract dated 26 September 2017. Terms included
i. a commencement date of 13 November 2017,
ii. base salary of $130,000 (less applicable tax), and
iii. target incentive of 10% of base salary.
z) On 27 September 2017 the Applicant met with Mr McJarrow and informed him that he was resigning. The Applicant provided Mr McJarrow with letter of resignation and advised that he would work out notice in accordance with his Contract (with his last day being on 27 October 2017). The Applicant wrote,
“Further to our earlier discussion, I would like to formally notify you that I’m resigning from my position as Marketing & Services Manager NSW/ACT.
As required by my employment contract, I’m giving one calendar months’ notice, effective today. The last day at work will be 27 October 2017.
Having studied my corporate career at Singapore Airlines over nine years ago, I’ve enjoyed the many opportunities to develop both personally and professionally and I appreciate the support provided to me during my time with the company.
If I can be of any help during this transition, with training or hiring please let me know as I’ll be happy to make myself available.”
aa) It is to be noted that the letter of resignation said nothing about repudiation of contract or acceptance of the same.
bb) On 27 October 2017 the Applicant ceased working for SAL At that time he was earning $91,227 per annum (gross).
cc) Both the Pricing & Planning Position and the Marketing & Services Position were “Manager Admin Officer” (AO) roles and consequently, fell outside the scope of the Singapore Airlines Enterprise Agreement 2015.
[9] The Applicant submits he was unfairly dismissed (essentially constructively dismissed and forced to resign because of a contraction in his role from a national one, the Pricing and Planning Position, to one that was Sydney specific, the Marketing and Services Position). He says SAL repudiated his contract of employment and that he accepted that repudiation on 27 September 2017. He characterised the repudiation as follows:
a) In the Pricing and Planning Position the Applicant oversaw the National Pricing Unit (NPU) and developed National pricing strategy with the objective of achieving all in revenue targets for Australia through fair setting and distribution. The position required a clear understanding of the Respondent’s sales and revenue performance in Australia and its position relative to competitors through regular reporting/analysis. The position was National and was a technical/analytical role.
b) In the Marketing and Services Position the Applicant oversaw the operation and administration of the Sydney Passenger Services Department, which comprised Direct Sales and Ticket Office sections. He was responsible for event planning, management development and implementation of initiatives and promotions with key partners and sponsors to maximise return on investment. The position was sales oriented and carried accountability for specific areas-mainly Internet marketing and ticketing.
c) The Marketing and Services Position resulted in serious non-consensual intrusions upon his status and responsibilities. He says it was a diminution in status and responsibilities which constituted a repudiation of the contract of employment.
[10] The Applicant seeks an Order that he be compensated.
[11] 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.
[12] 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.
[13] There is no dispute, and the Commission, as presently constituted, is satisfied, the Applicant has completed the minimum employment period, and that the Applicant earned less than the high income threshold. Consequently, the Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal.
[14] I will now consider if the cessation of employment was unfair within the meaning of the FW Act.
[15] 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.”
[16] 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. Section 386 of the FW Act provides that:
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[17] It is common ground that s.386(1)(a) does not apply in the present matter.
Was the Applicant forced to resign?
[18] The Applicant submits that he was forced to resign from employment with SAL because of conduct, or a course of conduct, engaged in by SAL. The Applicant submits SAL in the movement from the Pricing and Planning Position to the Marketing and Services Position was a repudiation of his contract of employment. He submitted that,
“8. I was dismayed and humiliated by the decision to transfer me to the Marketing and Services Position because I considered it a significant demotion and was quite sure this is how it would be perceived by others. It was not commensurate with my skills or experience and in this regard and the absence of any reasonably comparable alternative, I felt I had no effective or real choice but to commence searching for alternative employment there was commensurate with my skills and experience.
….
14. The dimensions of the role listed at clause 3 further reiterate that this is a Sydney specific role. Included are such things as,
local pricing initiatives
SYD Passenger Services Department operations and efficiency (Trade, Corp VIP, PPS, Consumer),
Human resource management and development of section staff members
15. Further evidence of this role was a reduction in responsibilities can be found in the level of experience of my successor although she had previously held analytical roles, she wasn’t as tenured as me nor did she possess the same breadth of experience across pricing and distribution functions, particularly in commercial strategy.
16. In every way but salary, my transfer to this role was a reduction in status and responsibilities. I was confused about whether the respondent was allowed to diminish my role under the stated umbrella of a transfer due to restructure and I believe the transfer and consequent diminution status and responsibilities was unjust.
17. The respondent’s attempts to portray the position as a state-wide role cannot be sustained in the circumstances. The respondent’s attempts to lead the Commission to believe that the position was equal to my previous nationwide role cannot be sustained.
19. Clause 10.4 states definitively that if my “job function is very consistent with my skills qualifications and experience; this will not constitute termination…”
20. It is respectfully submitted that all evidence proves that my job function was not varied “consistent with my skills, qualifications and experience” 3
[19] SAL submits the conduct, or course of conduct claimed to have occurred by the Applicant did not fall within the meaning of s.386(1)(b) because, although the Pricing and Planning Position was deleted from its structure (i.e. that role was made redundant) the Applicant was not “forced” to resign because he was transferred to a new role of equivalent status and continuity of service. SAL maintained that the Marketing and Services Position was consistent with its rights under the employment agreement.
Consideration
[20] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli 4, a Full Bench of the Commission referred to a number of authorities dealing with “dismissal” under s 386(1). In relation to the operation of s.386(1)(b) the Full Bench held that,
“[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd , that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.
….
[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
….
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”
….
[49] We do not consider it is particularly helpful in applying s.386(1) to refer to the concept of “constructive dismissal” - an expression nowhere used in the FW Act. In saying this, we acknowledge that the expression has been used in a number of the authorities and also in the passage from the explanatory memorandum earlier quoted. However, as explained by Greg McCarry in his 1994 article “Constructive Dismissal of Employment in Australia”, the concept of “constructive dismissal” in UK law was not a development of the common law, but rather a description of a statutory extension to the ordinary meaning of dismissal to encompass a situation where “the employee terminates the contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer’s conduct”. That is a much wider concept than just “forced” dismissal and is conducive of confusion, as McCarry warned:
“If the forced resignation is now to be regarded as a dismissal, at least under some statutes, then so be it. But it is not and should not be called a “constructive dismissal”, nor should that term come to be regarded as a separate concept in its own right, as may be happening. To regard “dismissal” as including constructive dismissal without the aid of a definition of extension is reading a lot into a statute by English and Australian standards of statutory interpretation, although as we shall see American courts have had no trouble doing just that. Moreover, unnecessary or loose use of the phrase “constructive dismissal” brings with it the inevitable, and erroneous, tendency to draw on English judicial pronouncements and examples which arise in the quite different situation adverted to earlier. Given the way the extended definition in England is to be interpreted, all kinds of breaches of contract and repudiatory conduct, as determined by the common law rules, can legitimately come within the statutory extension. There are good reasons for arguing that similar definitions should be inserted into our statutes, but at the moment they are not there. So care is needed that decisions on the English regime are not misunderstood or misapplied.”
[50] In the different statutory context of the NSW unfair dismissal scheme in the Industrial Relations Act 1991, a Full Bench of the Industrial Relations Commission similarly warned in Allison v Bega Valley Council, in relation to forced dismissal, that the term “constructive dismissal” could “deflect attention from the real inquiry ... Did the employer behave in such a way so as to render the employer’s conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?” In the current statutory context of s.386(1), the breadth of the concept of “constructive dismissal” may cause confusion and deflect attention away from whether a dismissal within the meaning of paragraph (a) or paragraph (b) is being considered. That occurred in this case.”
[21] I adopt the reasoning of the Full Bench. Consequently, it is necessary for me to focus on whether the Applicant was “forced to [resign] because of conduct, or a course of conduct, engaged in by [SAL]” rather than exploring notions of “constructive dismissal”. The onus is on the Applicant to establish that he was forced to resign: Banda v Mrs Australia Pty Ltd (t/a 7-Eleven). 5
[22] In the present matter SAL the evidence establishes that after announcing that the Pricing and Planning Position was to be made redundant representatives of SAL had a number of meetings/engagements/communications with the Applicant to explore the Marketing and Services Position. It is to be accepted that the two positions are different, but that does not mean that in appointing the Applicant to the Marketing and Services Position SAL breached the Employment Agreement or otherwise engaged in conduct, or a course of conduct, that forced the Applicant’s resignation.
[23] It is worth repeating that the Employment Agreement provided that,
“2.2 The Company, at its absolute discretion, may transfer you to another position at any time on the substantive terms and conditions of your employment, prevailing at the transfer time.”
“10.4 If your job function is varied consistent with your skills, qualifications and experience, this will not constitute termination of your employment and the terms and conditions of this Agreement will continue to apply unless otherwise mutually agreed.”
[24] In his submissions the Applicant relied upon the decision in Whittacker v Unisys Australia Pty Limited. 6 In that matter it was held that there had been a unilateral removal of an employee from his former position and that the proposed new role constituted a substantial diminution in status and responsibility. On that basis it was held that there was a repudiation of contract because the employer’s actions evinced a plain intention not to be bound by the existing contract. Because of what I say below about the Marketing & Services Position the decision in Whittacker can be distinguished. It can also be distinguished on the basis that, in Whittacker, at no stage did Mr Whittaker agree to undertake the proposed new role. In the present matter the Applicant took up the Marketing & Services Position while he commenced an external job search. Further, unlike in Whittacker the Applicant’s letter of resignation said nothing about repudiation of contract or acceptance of the same.
[25] SAL submitted that,
“[The Applicant] did not inform the Respondent that he did not want to perform the position of Marketing and Services Manager NSW/ACT. He did not give the Respondent any opportunity to address the grievances he might have had about the change to his position. To the contrary, he created the opposite impression by emailing staff at the Respondent to say that he was performing the role, by successfully applying for a flexible work arrangement to perform the role, and by diligently performing the duties of the new position.” 7
[26] Further, it was the evidence 8 of Mr O’Toole that the Marketing and Services Position was not a contraction or significant demotion. He noted that,
a) “the Role was another AO2-level role,
b) the Role was created to give effect to the intention to redistribute previously centrally held responsibilities to the commercial Areas-the reduction in geographical scope was a relevant to the status or responsibilities of the Role,
c) while three equivalent portfolios were created in the other commercial Areas, the Role had the largest revenue responsibility, and
d) the Role had more direct reports-managing a multidisciplinary complement of 11 employees instead of a team of six.”
Further, his evidence was that,
“I disagree that the Role was “not commensurate with [the Applicant’s] skills, qualifications and experience”. In my view, most of the roles [the Applicant] performed during his time with [SAL] were focused on sales and marketing (and not the technical aspects of pricing). Based on his employment history [the Applicant] had a breadth of experience across corporate, sales, pricing and distribution functions, as well as knowledge of the business and strong IT competencies (from his time as a Passenger Services Executive) that made him a good fit for the direct sales aspect of the Role” 9
[27] Mr McJarrow gave evidence 10 that,
“12. In my view [the Applicant] was the obvious choice to manage this diverse team because he had experience in designing and recommending commercial strategies and from my experience of working with him in the past, I had formed the view that he had good analytical and financial skills (and this view was shared by our current Regional Vice President and our Senior Human Resources Manager) as well as good business acumen that would be advantageous in devising specific business strategies, particularly for e-commerce, direct sales and ticketing.”
“17. I do not consider that the portfolio of managing the Marketing and Services team to be a diminution of the status or authority for [the Applicant] because:
a) he retained his seniority in the organisational structure and, as far as I’m aware, his remuneration.
b) His previous portfolio was one where he recommended and orchestrated pricing strategies, but he did not have authority to implement these. In fact, any pricing strategy required at least two approvals following his proposal.
c) In [the Applicant’s] pricing portfolio, he worked in a small team. The new portfolio of Marketing and Services Manager NSW and ACT required him to spearhead the whole marketing and services function for NSW and ACT with a team of 13 and again reported directly to me. This was a portfolio with a higher profile and an increase in his actual authority in decision making opportunities in the business.
d) The Marketing and Services team was responsible for the marketing and sponsorship for Singapore Airlines’ most important stations in Australia (Sydney and Canberra) which accounts for about 50% of its business. This initial involved [the Applicant] overseeing staff who were responsible for major events and global product launches, such as the airline’s launch of the new A380 cabin products. However, to say that the portfolio of Marketing and Services Manager NSW/ACT was primarily a function is planning role, is very short-sighted. Is it because the portfolio with broader, more diverse, with a high profile, more responsibility and greater authority.
[28] During the Determinative Conference 11 I explored with the Applicant his fitness to fulfil the Marketing & Services Position:
MR CHOUKRALLAH-KAZEMI: I'd like to draw your attention, Commissioner, to my resume which is included in the notice to product submission, multiple times, but the first instance you will find at page 5 and 6. Page 5 is headed my name.
THE COMMISSIONER: Yes, I see that
MR CHOUKRALLAH-KAZEMI: Page 6 is headed with the title, Regional Marketing Manager South West Pacific.
THE COMMISSIONER: Yes.
MR CHOUKRALLAH-KAZEMI: The purpose for me drawing attention to this is to assist you in forming an objective view with regards to my qualifications, which in accordance with clause 10.4 of my employment contract which I submitted as exhibit ACK1 on page 6.
THE COMMISSIONER: I'll mark your CV as exhibit A5.
MR CHOUKRALLAH-KAZEMI: Thank you. Just to clarify, the reason for my bringing this up in line with clause 10.4 of my employment contract on page 6, which reads:
If your job function is varied consistent with your skills, qualifications and experience, this will not constitute termination of your employment.
THE COMMISSIONER: But in the position of Marketing - in the marketing and services position, am I right that there's nothing in there that you didn't have the skill to do?
MR CHOUKRALLAH-KAZEMI: Correct.
THE COMMISSIONER: Hang on. Am I right in that? Am I also right that - just bear with me. There was nothing in that your qualifications meant you couldn't do?
MR CHOUKRALLAH-KAZEMI: To clarify - - -
THE COMMISSIONER: Hang on, am I right, that having regard to your qualifications, you could perform the role of the marketing and services position?
MR CHOUKRALLAH-KAZEMI: Yes.
THE COMMISSIONER: Having regard to your skills, you could perform the marketing and services position?
MR CHOUKRALLAH-KAZEMI: Yes.
THE COMMISSIONER: Having regard to your experience, you could perform the marketing and services position?
MR CHOUKRALLAH-KAZEMI: Yes. I guess my purpose - - -
THE COMMISSIONER: In that sense, the marketing and services position is consistent with your skills, qualification and experience.
MR CHOUKRALLAH-KAZEMI: I would tender that my qualifications and skills in certain areas were not commensurate in that they exceeded the requirements for the position. Specifically, my tertiary qualifications and also skills and experience I'd demonstrated of an analytical nature, pursuant to the previous role that I held as Marketing Manager Pricing and Planning.
THE COMMISSIONER: The gravamen of your argument then is, it was beneath you?
MR CHOUKRALLAH-KAZEMI: Yes.
[29] Having considered the respective position descriptions and the evidence of the applicant about his skills qualifications and experience (including his curriculum vitae) I find that, in moving him from the Pricing & Planning Position to the Marketing & Services Position, his “job function [was] varied consistent with [his] skills, qualifications and experience.” Even if I am wrong in this regard it is to be noted that, an employee has not been dismissed if they were demoted in employment and the demotion did not involve a significant reduction in their remuneration or duties, and they remain employed with the employer that effected the demotion. 12
[30] Having considered the evidence carefully concerning the events that occurred in the lead up to and after the Applicant took up the Marketing and Services Position, I have reached the conclusion that SAL’s conduct did not give rise to circumstances that amounted to a dismissal within the meaning of s.386(1)(b). SAL did not engage in conduct or a course of conduct that forced the Applicant to resign. There was no absence of effective or real choice. Having taken up the Marketing and Services Position the Applicant resigned on 27 September (providing 1 months’ notice) to take up a more lucrative position. Noting that he considered the Marketing and Services Position to be beneath him, he exercised his free will to find a better position. There was no compulsion or inevitability in the resignation.
[31] Consequently, I find that the Applicant was not forced to resign from his employment because of conduct, or course of conduct, engaged in his employer.
[32] I find that the Applicant was not dismissed from his employment with SAL within the meaning of s.386 of the FW Act.
[33] The Commission, as presently constituted, is satisfied that the Applicant was protected from unfair dismissal, but that there was no dismissal. Consequently, the application for an unfair dismissal remedy is dismissed.
[34] An order will be issued with this decision.
COMMISSIONER
Appearances:
Mr Choukrallah-Kazemi for himself
Ms Frances Thomas and Ms Gella Rips from the AiGroup for the Respondent
Hearing Details:
Sydney,
February 6
2018
Printed by authority of the Commonwealth Government Printer
<PR602178>
1 Exhibit “R5”.
2 Annexure KO-4 to Exhibit R3
3 Exhibit “A4”.
6 [2010] VSC 9
7 Exhibit “R1”
8 Exhibit “R3”
9 Ibid para 25.
10 Exhibit “R6”
11 Transcript PN481-502
12 s.386(2)(c)