Ajay Konakalla v Bendigo and Adelaide Bank Ltd
[2017] FWC 3710
•18 JULY 2017
| [2017] FWC 3710 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ajay Konakalla
v
Bendigo and Adelaide Bank Ltd
(U2016/13806)
COMMISSIONER HARPER-GREENWELL | MELBOURNE, 18 JULY 2017 |
Application for relief from unfair dismissal - genuine redundancy.
[1] On 17 November 2016, Mr Ajay Konakalla made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act) for a remedy in respect of his dismissal by Bendigo and Adelaide Bank Ltd (BAB).
[2] Mr Konakalla commenced working for BAB on 30 March 2011. At the time of his dismissal he was employed as a Senior Siebel Configurator on the LINX program of work.
[3] Mr Konakalla was notified by letter dated 3 November 2016 that his employment was being terminated due to redundancy and that, if no suitable redeployment opportunities were found, the final date of his employment would be 1 December 2016.
Procedural Background
[4] BAB raised numerous objections to the application, namely the effective date of Mr Konakalla’s dismissal, that the dismissal was a genuine redundancy and that Mr Konakalla’s annual earnings exceeded the high income threshold whilst he was not covered by an award or agreement.
[5] On 25 January 2017, BAB advised the Commission that they were withdrawing their high income threshold objection.
[6] On 3 February 2017, BAB advised the Commission that they were withdrawing their objection regarding the effective date of Mr Konakalla’s dismissal and only sought to proceed with their objection that the dismissal was a case of genuine redundancy.
[7] The irregularity in the manner in which Mr Konakalla made his application was waived by a decision of the Commission 1 and the matter referred to me for consideration.
Representation
[8] This matter was listed for a mention/directions hearing before me on 19 April 2017. Mr Konakalla appeared on his own behalf and BAB was represented by Mr Dearden.
[9] Mr Konakalla objected to Mr Dearden representing BAB at both the mention/directions hearing and the arbitration hearing.
[10] The relevant considerations under s.596 of the FW Act are:
“596 Representation by lawyers and paid agents
…
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
…”
[11] The circumstances contemplated by s.596(3) and (4) of the FW Act do not apply here.
[12] Mr Konakalla made written submissions of which some of the matters raised did not go directly to the criterion for consideration under s.596. Mr Konakalla and BAB were provided with the opportunity to make additional oral submissions during the mention on 19 April 2017.
[13] In making my decision I took into consideration the parties’ written and oral submissions.
[14] The proper approach to the application of s.596 was discussed as follows by the Federal Court (Flick J) in Warrell v Walton 2:
“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...” The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.
[25] The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth)...”
[15] Mr Konakalla referred to the decision of the Full Bench in Asciano Services Pty Ltd v Hadfield 3 in which the Full Bench refused permission to appeal. The Full Bench in this matter made the following observation:
“[20] Two other relevant observations may be made. The first is that it is unclear whether Mr Hadfield’s unfair dismissal remedy application is to be dealt with in a determinative conference under s.398 or a formal hearing under s.399. The more informal procedures of a determinative conference may be more appropriate for a self-represented litigant such as the Appellant, and it remains open for the Appellant to apply to the Commissioner to have the matter dealt with in this way. The second is that, in the event that there is some relevant change in the circumstances of the case that might affect the applicability of the s.596(2) criteria - for example, some complex legal issue arises, or there remains a problem with the availability of relevant internal personnel - then the Appellant is not barred from making a fresh application for permission to be represented by lawyers.”
[16] In terms of complexity, in the unpublished decision of Commissioner Riordan which was the subject of appeal, the Commissioner determined that the matter before him did not involve any issues of complexity. Whereas in the matter before me there are some significant factual disputes and multiple witnesses. In most circumstances, these elements alone would not be sufficient to trigger a discretion in terms of s.596(2)(a). Neither does the fact that the hearing might be more efficient with representation on its own. However as indicated by the Full Bench in King v Patrick Projects Pty Ltd 4, representation is not relevant, unless such arises from the complexity of the matter itself.
[17] In this case, the Commission must first consider the jurisdictional issues before proceeding to the merits of the application. There are a number of matters to be considered which include consideration of the validity of the guarantee of annual earnings, as well as consideration of the coverage provisions of the relevant Enterprise Agreement and Award.
[18] In addition, those circumstances may also potentially have implications for the various statutory considerations in s.387 of the FW Act. Further there is the matter raised by the Respondent of the admissibility and relevance of some the Applicant’s evidence. These are all relevant factors going to complexity.
[19] Mr Konakalla’s written submission was that BAB is a large employer with a specialised Human Resources Department and therefore would have the capacity to deal with the case.
[20] In terms of the capacity for BAB to represent itself effectively, Mr Dearden in his oral submission raised that one of the key witnesses for BAB is the experienced member of the HR team who would ordinarily have carriage of the matter.
[21] I was satisfied this posed an issue for the conduct of proceedings. To have the same person who would be responsible for the running of the matter remain outside of the hearing until they had given evidence is nonsensical.
[22] Further, BAB does not have any other internal legal or advocacy expertise. This is a relevant consideration going to fairness.
[23] On balance, the considerations outlined above and the circumstances of the parties lead me to the view that the discretion should be exercised so as to give permission to BAB to be represented by a lawyer at the hearing of the matter.
Witnesses
[24] Mr David Webb, Service Delivery Manager and Ms Fiona Curtain, Senior Business Partner (People and Culture) gave evidence for and behalf of BAB.
[25] Mr Konakalla tendered two witness statements, Mr Sreekanth Suapaneni and Mr Sriram Veeraswamy. Both witnesses were available by phone to give evidence, however by agreement between the parties the witness statements were entered into evidence without the need for the witnesses to be cross examined. The parties made submissions on the relevance of the witness statements to the matter currently before me.
[26] Mr Suapaneni’s employment ended with BAB in March of 2015. Mr Veeraswamy also ceased employment with BAB in March 2015. Mr Konakalla conceded that as Mr Suapaneni and Mr Veeraswamy were no longer engaged in the business they did not have any first-hand knowledge of the current circumstances, being Mr Konakalla’s redundancy, nor were they directly involved.
[27] Mr Konakalla submitted that both the witnesses had grievances and “horror stories” they wanted to tell the Commission from their time at BAB. 5 I do not consider their personal experiences that took place over two years ago to be relevant to the matters I am required to consider in determining if Mr Konakalla’s dismissal was a case of genuine redundancy.
Both witnesses were former work colleagues of Mr Konakalla and both of their witness statements gave personal glowing references about Mr Konakalla’s performance during their time at BAB. It is important to note here that there was no suggestion by BAB that they had any concerns about Mr Konakalla’s performance therefore I do not find this information relevant to the matters I am required to determine.
[28] I have considered the submissions and the witness statements of Mr Suapaneni and Mr Veeraswamy, however there was little information that was relevant to the matters I am required to consider in determining whether or not Mr Konakalla’s dismissal was a case of genuine redundancy. To that end, in making my decision it has not been necessary for me to rely on the evidence of Mr Suapaneni or Mr Veeraswamy.
Consideration
Genuine Redundancy
[29] Mr Konakalla’s application for unfair dismissal arises in respect to redundancy circumstances. Mr Konakalla was not dismissed from his employment for reasons related to his performance or conduct. The decision to make Mr Konakalla’s position redundant arose from a decision by the business to withdraw 10.4 million dollars in funding from a program Mr Konakalla was working on.
[30] BAB raised a jurisdictional objection on the basis that the dismissal of Mr Konakalla was a case of genuine redundancy. Section 396 of the FW Act requires that four specified matters must be decided before any consideration of the application by Mr Konakalla’s can be undertaken. These are as follows:
(a) Whether Mr Konakalla’s application was made within the period required by s.394(2);
(b) Whether Mr Konakalla was a person protected from unfair dismissal;
(c) Whether BAB is a “small business employer” as defined in s.23 of the FW Act, and whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d) Whether the dismissal was a case of genuine redundancy.
[31] There was no contest between the parties as to factors (a), (b) and (c) above.
[32] Before I can consider whether Mr Konakalla’s dismissal was harsh, unjust or unreasonable I must determine whether the dismissal was a case of genuine redundancy.
[33] Section 389 of the FW Act provides as follows:
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
Did the Respondent no longer require the Applicant’s job to be performed by anyone because of changes in the operation requirements of the Respondent’s enterprise?
[34] In order to determine if Mr Konakalla’s dismissal was a genuine redundancy, I must first consider whether BAB no longer required his job to be performed by anyone.
[35] In Ulan Coal Mines Ltd v Henry Jon Howarth and Ors (Ulan Coal) 6, the Full Bench of the Commission made the following observation:
“[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” (at p. 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:
“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…” (at p.308)
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 Commissioner of Taxation (2004) 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.”
[36] Mr Konakalla was employed at BAB as a Senior Siebel Configurator based in Melbourne. He was involved in customising and developing Siebel software into LINX, a customer relationships management tool used by BAB.
[37] The LINX program was part of a broader business initiative called the Customer and Partner Program. There were three main activities within the LINX Program being support, maintenance and development.
[38] At the time Mr Konakalla was advised of his termination, the LINX Competency Centre Team (LCC) was located at the head office in Bendigo, with only the applicant and two other employees from the team based in Melbourne. 7
[39] In July 2016 BAB announced that after a recent review of the LINX project they had decided to dismantle the Customer and Partner Program and also discontinue the LINX program. Funding for the LINX project was withdrawn, effective immediately. 8 The result of this was that LINX development would no longer be funded as a stand-alone project and that the development of LINX through customising Siebel software would be significantly reduced.9
[40] Mr Webb gave evidence that as a consequence of the loss of 10.4 million dollars in funding the 50-60 LINX staff would be reduced to a workforce that was focused on keeping LINX running and fixing software issues. This would be a completely different requirement to that of the current development and design team. 10
On 22 July 2016 a meeting was held with all members of the Customer Management Team (which included all LINX staff) to announce the decision of BAB to deconstruct the LINX Program. Mr Konakalla attended that meeting. Following the meeting an email was sent by Ms O’Leary (Head of Business Solutions) to effected employees confirming the details of the announcement. 11
[41] Mr Webb held a further meeting with his Technical and Test teams which included the LCC team to engage in more personalised discussions. 12
[42] Mr Webb’s evidence was that further meetings were held on 28 July and 4 August 2016. During this period three of the independent contractors from the LCC Team had their contracts terminated as there was no longer any work for them to perform. 13
[43] Mr Konakalla’s oral evidence was that his role was a very specialised role in the area of Siebel development. 14 Seibel was a popular product that “had its hay day last decade”. The product had not adapted with the times and “what has happened is suddenly they see more versatile, cheaper products”, the current technology is not adopted by anyone because there are cheaper more versatile products on the market. “This is why the jobs have declined”.15 Mr Konakalla went on to explain that Seibel is not meeting the future needs of the market, nor the whole of Australia.16
[44] Mr Webb’s evidence was that Mr Konakalla was specifically involved in customising Siebel software and was highly specialised in this area and LINX is not used anywhere else in the bank. 17
[45] Mr Konakalla continued to work on version 10.4, an existing development project, after the discontinuance of the LINX project was announced until its release in September 2016. 18
[46] BAB submitted that after this release there was a substantially reduced need for technical development of the LINX application, and that a review of the LCC team found that there was no longer a requirement or the necessary funding for as many employees in technical development roles. 19
[47] Both Ms Curtain and Mr Webb gave evidence that between 14 October and 25 October 2016 they met with Mr Camporeale (Head of Applications Services) and Mr Old (Program Manager) to undertake a review of the impact that the withdrawal of funding to the LINX Program would have on current resources. Mr Webb provided evidence of a business case he submitted to Ms Curtain by email two days later which outlines his rationale for reducing Siebel Development roles to one FTE Siebel Developer and his rationale for the work to be conducted in Bendigo. Consequently it was determined that there would be only one full-time Senior Siebel Configurator role, which would be based in the Bendigo head office, and that any additional requirements for Siebel development work would be met by contractors on an as-needs basis. 20 It was determined the technical development work that Mr Konakalla was performing was no longer required.
[48] Mr Webb’s evidence was at 7:36am on 3 November 2016 he sent correspondence to a number of management team members attaching documents that explained the changes that were to take place as a consequence of the withdrawal of funding to the LINX Program. One of those documents was a copy of the “Key Messages” document which provided information that the resource requirements for the LINX Program had been reviewed and the core LINX application support team would be located in Bendigo. 21 As there was already one Senior Siebel Configurator employee working in the Bendigo office, BAB determined that it would be Mr Konakalla’s Melbourne-based position that would be made redundant.
[49] In cross examination Mr Konakalla gave evidence that since the announcement the LINX program had been reduced in staff numbers. 22 After the release of the 10.4 project he agreed to assist with support work. Mr Konakalla committed to do this work on a temporary basis because at that time the role was based in Bendigo and due to his personal circumstances he did not want to commit to assisting on a full-time basis.23
[50] Mr Konakalla submitted that when the LINX program was expanding in August 2014, BAB hired a consultant whose contract was extended following Mr Konakalla’s dismissal. He submitted that BAB simply replaced him with this consultant. 24
[51] Mr Webb gave evidence that the consultant was an independent contractor employed to work on specific projects. One of the projects the consultant (Mr Sarron) was engaged to work on was bringing in customer information from the Agribusiness part of the bank and a specific project that was exclusively assigned to the consultant was a new payments platform. The new payments platform is an industry wide project involving 13 other financial institutions. The project had specific milestones and if the bank failed to deliver they risked being dropped out of the first phase. 25 Mr Webb’s evidence was that given the work assigned to the consultant he was not part of the core support team.
[52] Ms Curtain also gave evidence that at the time of Mr Konakalla’s dismissal the consultant was performing different work to Mr Konakalla which required skills he did not possess. 26
[53] Mr Webb gave evidence that the other contractors referred to by the Mr Konakalla were contracted for limited periods and were not performing ongoing work. 27
[54] Mr Webb’s evidence was that the development work being performed by Tata Consultancy Services required a high level of expertise and was not permanent ongoing work, therefore it was appropriate to contract that work out. 28
[55] Mr Webb gave evidence that, by December 2016, 3 of the 9 employees and 5 of the 8 independent contractors in the LCC team had left, and the EIM Siebel Developer was dismissed due to a lack of ongoing work. 29 Three of the developers that were engaged as independent contractors were performing specific work on specific projects.30
[56] In cross examination Mr Konakalla conceded that after the announcement there were a number of contractors whose contracts were terminated due to the down turn in available work. 31 Mr Konakalla could not identify any specific contractor who was engaged to perform his role alone.
Findings
[57] There is no evidence before me that suggests Mr Konakalla’s Senior Seibel Configurator role which was based in Melbourne exists within any capacity. The arguments presented by Mr Konakalla largely went towards attempting to establish that he should have been considered for either a support role or the Bendigo based role of Senior Seibel Configurator, which I will return to later in this decision, and not that the role he was performing still existed in its original capacity.
[58] Mr Konakalla did not dispute or challenge Mr Webb’s evidence that the three developers that were engaged as independent contractors were performing specific work on specific projects. Nor did Mr Konakalla dispute that Mr Sarron was performing work on specialised projects that did not form part of Mr Konakalla’s role. Mr Konakalla sought to argue that he was qualified to do the role Mr Sarron was engaged to perform. This was disputed by Mr Webb and Ms Curtain.
[59] It was not in dispute that BAB had withdrawn a significant amount of funding for the Seibel development program and that there was a reduction in the requirement to perform development work. It stands to reason that consequently a number of roles would no longer be required and therefore cease to exist.
[60] There is evidence before me that the withdrawal of funding coupled with the decline in work prompted Mr Webb to put forward a business case to Ms Curtain and others outlining his rationale for reducing, amongst other roles, the number of Senior Siebel Development roles. I accept the evidence of Mr Webb and Ms Curtain being that as a consequence of the deconstruction of the Seibel development project there was a decline in the work being required to be done by Senior Developers. The decline in work coupled with the reduction in funding lead to the need to reduce employee numbers within the team and unfortunately Mr Konakalla’s role amongst others was made redundant.
[61] I am satisfied on the basis of the evidence of Ms Curtain and Mr Webb that the deconstruction of the LINX program led to changes in BAB’s operational requirements. Because of those changes Mr Konakalla’s role is no longer required to be performed by anyone. These circumstances readily fit within the ordinary meaning of s389(1)(a), therefore I consider Mr Konakalla’s redundancy to be genuine.
Did the Respondent comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy?
[62] It is not in dispute that at the time of his dismissal, Mr Konakalla had a guarantee of annual earnings in accordance with s.330 of the FW Act and that his annual income exceeded the high income threshold.
[63] However, Mr Konakalla submitted by having been provided with a guarantee of annual earnings BAB failed to consult with him in accordance with the Banking, Finance and Insurance Award 2010 (Award) and therefore have not met their consultation obligations. 32
[64] Mr Konakalla submitted because he has a Bachelor’s Degree in Computer Science and Engineering and Master’s Degree in Information Technology, should he not be covered by the Banking, Finance and Insurance Award 2010 for the purpose of consultation, then the Professional Employees Award 2010 would be the relevant award. Mr Konakalla provided no other reasoning as to why he should be covered by the Professional Employees Award 2010.
[65] Section 47(2) of the FW Act provides that a modern award does not apply to an employee at a time when the employee is a high income employee.
[66] Section 329 of the FW Act relevantly provides as follows:
“329 High income employee
(1) A full-time employee is a high income employee of an employer at a time if:
(a) the employee has a guarantee of annual earnings for the guaranteed period; and
(b) the time occurs during the period; and
(c) the annual rate of the guarantee of annual earnings exceeds the high income threshold at that time.”
[67] BAB submitted that, by reason of the guarantee of annual earnings provided to Mr Konakalla, his employment was not subject to the operation of the Banking, Finance and Insurance Award 2010 (Award) and as such there was no requirement for them to consult with him.
[68] However, BAB also submitted that they had nevertheless made extensive efforts to advise Mr Konakalla of the decision to withdraw funding for LINX development and to consult with him regarding the redundancy of his position. 33
[69] BAB submitted that their decision to discontinue the LINX project was announced to staff, including Mr Konakalla, during two meetings on 22 July 2016, an email from the Head of Business Solutions on 22 July 2016 and in an email from the Executive – Business Enablement on 11 August 2016. 34
[70] They submitted that further discussions regarding the discontinued project took place during meetings that Mr Konakalla was invited to on 28 July 2016 and 4 August 2016. 35
[71] Mr Webb gave evidence that at the numerous meetings that took place with Mr Konakalla’s team it was made clear that the discontinuation of the LINX program would mean that LINX related work would be significantly reduced, and that there would be very little development work required. 36
[72] Mr Konakalla’s oral evidence was that he attended a meeting in July 2016. During that meeting he was informed about the deconstruction of the LINX program, however he was provided with no real guidance as to who was going to lose their jobs. 37 Mr Konakalla submitted that whilst BAB discussed the deconstruction of the LINX program in July 2016 they did not discuss job losses or a new structure.38
[73] He submitted that the team were invited to three further team meetings and then, in August 2016, the LINX Program Manager stated that the Siebel team would return to LINX production support as the team had too few staff. Mr Konakalla submitted that he assumed he had been allocated this work as per his initial job role at BAB. 39
[74] Mr Konakalla gave evidence that even though he was advised that there was no funding for the LINX program, it did not raise any concerns for him. 40
[75] He gave evidence that, whilst he understood that there would be an impact on the contractors, he considered that as LINX support was understaffed he believed that he would simply be returning to work in support. 41
[76] Mr Konakalla relied on the decision of the Commission in Paul Williams and Ors v Staples Australia Pty Ltd 42 submitting that BAB’s approach was similarly unduly hasty, largely tokenistic and grossly deficient.43
Findings
[77] I have considered the submissions of the parties and the evidence before me. It is not in contention that Mr Konakalla was a high income employee who had accepted a guarantee of annual earnings.
[78] Mr Konakalla’s submission as to which Award covered him was what one could say to be akin to hedging an each way bet. Mr Konakalla failed to understand the relevance of the coverage clause of each of the Awards he submits he is covered by.
[79] The coverage clause in the Banking, finance and insurance award provides as follows;
“4.1 This industry award covers employers throughout Australia who are engaged in the banking, finance and insurance industry in respect of work by their employees in a classification in this award and those employees to the exclusion of any other modern award. (emphasis added)
4.2 Definition of banking, finance and insurance industry
Banking, finance and insurance industry means the industries of banking, lending, loaning, providing credit, investment, finance, superannuation, all forms of insurance, credit unions, building societies, financial intermediaries, trustee creditors and agencies, money market dealers, credit or charge card institutions, wool broking, agribusiness and services to the above industries such as broking, trading, debt recovery, financial consulting, valuation, money changing, data processing, transaction accounts, telephone enquiries and transaction processing.”
[80] Whereas thecoverage clause in the Professional Employees Award 2010 provides;
“4.1 This award covers employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule B—Classification Structure and Definitions of the award and those employees.
4.2 This award covers employers throughout Australia principally engaged in the information technology industry, the quality auditing industry or the telecommunications services industry and their employees who are covered by the classifications in Schedule B.”
[81] Mr Konakalla is engaged in the banking, finance and insurance industry in respect of the work he performs. BAB is not principally engaged in the information technology industry, the quality auditing industry or the telecommunications services industry. BAB do not dispute and I am satisfied that Mr Konakalla is covered by the Banking, Finance and Insurance Award 2010 (Award).
[82] However, although Mr Konakalla may be covered by a modern award, section 46(1) of the FW Act makes it absolutely clear that a modern award does not impose obligations on, or create and entitlement for a person unless the award applies to them.
[83] Section 47(2) states that a modern award does not apply to an employee at the time if the employee is a high income employee. Therefore whilst an award may cover an employee at the time of their dismissal, pursuant to s.47 it may not apply to that employee because the employee accepted a guarantee of annual earnings in accordance with section 328(3) of the FW Act.
[84] Section 328(3) relevantly provides as follows;
“Employer must give notice of consequences
(3) Before or at the time of giving a guarantee of annual earnings to an employee covered by a modern award that is in operation, an employer must notify the employee in writing that a modern award will not apply to the employee during any period which the annual rate of the guarantee of annual earnings exceeds the high income threshold.”
[85] Mr Konakalla’s evidence included his contract of employment which at clause 12 Remuneration, states that the total remuneration package Mr Konakalla is to receive is “inclusive of, paid in satisfaction of and may be set-off against any payments that he may have been entitled to under the Banking, Finance and Insurance Award 2010 (Banking Award).”
[86] At Clause 13 of the Contract, Guarantee of annual earnings provides the following;
“As your base salary is more than the high income threshold (currently $108,300 per annum), this Agreement constitutes an undertaking by the Bank to pay you a guarantee of annual earnings in accordance with section 330 of the Fair Work Act 2009 (Cth).
The Banking Award will not apply to you while your guarantee of annual earnings exceeds $108,300 per annum (exclusive of superannuation), or the high income threshold as defined by the Fair Work Act 2009 (Cth) and as indexed each year.”
[87] I am satisfied that BAB has complied with its obligation in accordance with s.328(3) by notify Mr Konakalla in writing that the Award will not apply to him during any period which the annual rate of the guarantee of annual earnings exceeds the high income threshold.
[88] Mr Konakalla is covered by the award and is therefore eligible to make an unfair dismissal application. It is clear from the evidence and not in contention that Mr Konakalla was given a guarantee of annual earnings by BAB and consequently the effect of that guarantee is that although he is covered by the Award, the Award does not apply to Mr Konakalla.
[89] I am satisfied on the evidence before me that BAB had to some extent consulted with Mr Konakalla, however the effect of the guarantee of annual earnings is that BAB need not have complied with the requirement to consult as set out in the Award.
[90] Having found that the Award does not apply to Mr Konakalla and that his role with BAB was no longer required to be performed by anyone due to the deconstruction of the Seibel program, I must now consider whether it would have been reasonable in all the circumstances for the applicant to be redeployed either within BAB or an associated entity.
Would it have been reasonable in all the circumstances for the Applicant to be redeployed within the Respondent’s enterprise or the enterprise of an associated entity?
[91] Mr Konakalla’s oral evidence was at times inconsistent with his written submission. In his submission Mr Konakalla states that BAB had a lot of Siebel work within the bank and as such could have preserved his position. 44 However Mr Konakalla’s oral evidence was that Siebel was effectively running its course and there was a decline in requirements not only at BAB but throughout the industry.45
[92] He also submitted that between 2012 to 2014 BAB had deployed him into other specialised Siebel positions to replace contractors and that at the time of his dismissal there were numerous contractors whom he could have replaced. 46
[93] Mr Konakalla identified the role of Mr Sarron as one of those contract positions he could have performed. During cross examination Mr Webb gave evidence that Mr Sarron had remained with BAB and was involved in project development work. 47 Mr Konakalla put to Mr Webb that the role Mr Sarron was performing could have been performed by Mr Konakalla, that some of the work Mr Sarron was doing was the work Mr Konakalla was performing in 2011, and that he was a straight match for that work.48
[94] Mr Webb’s evidence was that Mr Sarron had broader and deeper technical skills, had worked in more complex environments and had 15 years more experience than Mr Konakalla. Mr Sarron was engaged as an independent contractor to perform specific project work within a specific timeframe and that the work he is engaged to do has nothing to do with the core support team. 49
[95] It was clear from the evidence that Mr Sarron’s role was that of an independent contractor and that Mr Sarron was engaged to do work that he was specifically qualified to do.
[96] Mr Konakalla submitted that from 3 November 2016 he did not have access to the Intranet or his work emails and as such could not view the internal job offerings or weekly job circular. 50
[97] However, consistent with the evidence of Mr Webb, Mr Konakalla’s evidence was that Mr Webb contacted him after he had been advised of his redundancy to request a copy of his resume and to survey his interest in any other roles. 51
[98] He also gave evidence that at any given point in time there are many jobs listed on BAB's website, but that he did not apply for any of those roles or contact Mr Webb regarding them as he had not been provided with a list of job opportunities. 52
[99] Mr Konakalla also submitted that he should have been provided with the opportunity to apply for the Senior Siebel Configurator role based out of the Bendigo head office, of which Mr McClellan was the current incumbent. 53
[100] Mr Konakalla in cross examination put to Mr Webb that he could perform Mr McClellan’s role and queried why he wasn’t given the opportunity to do so. Mr Webb’s evidence was that Mr McClellan has other software experience and he is a mainframe programmer. Mr McClellan had more transferrable skills, was more flexible in terms of activities he was prepared to pick up in a support role, he had a far more disciplined and logical approach to problem solving and investigation and was already based in Bendigo. 54
[101] He also gave evidence that, even if location had not been taken into account, Mr McClellan was a far stronger candidate for the role than Mr Konakalla. 55
[102] The argument presented by Mr Konakalla suggests that it should have been Mr McClellan that was made redundant and not Mr Konakalla. The explanatory memorandum makes it clear that the process for selecting who in an organisation is to be made redundant is not relevant to determining whether a dismissal is a case of genuine redundancy.
[103] Ms Curtain gave evidence that the weekly job circular referred to by Mr Konakalla is provided on request to employees who are on extended leave and is not offered to redundant employees. Instead, she submitted that BAB arranges for them to work one on one with their manager and a member of the People and Performance team to identify and investigate redeployment opportunities as it did in Mr Konakalla’s case. 56
[104] BAB submitted that prior to advising Mr Konakalla of his redundancy they considered other suitable alternative roles, but none were available. 57
[105] Mr Webb gave evidence that he was considering Mr Konakalla for a role in which he would provide backup for their Siebel administrator and provided a copy of an email sent in support of this. 58
[106] He gave evidence that he discussed this role with Mr Konakalla and believed that he was willing to cover that work, however the following day Mr Konakalla advised him that he did not see his career moving in that direction, that it was a step backwards, and that he wanted to continue his role as a developer. 59
[107] BAB submitted that Mr Konakalla was invited on 4 November 2016 to identify any non-technical or non-Siebel roles within the bank that may interest him, and continued seek other suitable alternative roles to which he could be deployed. 60
[108] BAB submitted that Mr Konakalla did not respond to their request to identify any non-technical or non-Siebel roles that interested him. 61
[109] Mr Konakalla however gave evidence that his email to Mr Webb on 5 November in which he responded with a single line stating “see where you can fit me in” 62 was intended to advise Mr Webb that he was interested in any role that was available.63 His evidence was that this was the only time he corresponded with BAB regarding redeployment opportunities with his reasoning being that due to his wife being pregnant and having a young child at home he was unable to respond to the selection criteria.64
[110] Mr Webb gave evidence that both himself and Ms Curtain looked for opportunities for Mr Konakalla, however the resume provided by Mr Konakalla’s was entirely focussed on the Siebel work he had performed, there were no suitable positions available. 65
[111] Ms Curtain gave evidence that she looked at the roles that were available at the time and, based on Mr Konakalla’s resume, experience with the bank and career aspirations, she was unable to find anything that met the criteria. 66
[112] She also gave evidence that prior to the decision to make Mr Konakalla redundant BAB went through a process of reviewing their current vacancies to determine whether there was anything suitable for Mr Konakalla, both in the same team and in the broader LINX programs and partner programs. 67
[113] BAB further submitted that since 22 July 2016, two employees and four contractors from Mr Konakalla’s team have had their employment or contracts terminated consequently there was no redeployment opportunities in his team. 68
[114] In Technical and Further Education Commission T/A TAFE NSW v L. Pykett 69 the Full Bench of the Commission considered an appeal against a decision of the Commission in which the employee was only considered for matched advertised permanent vacancies rather than considered for broader options. The Full Bench noted as follows:
“[40] The Commissioner erroneously focussed on the inadequacy of the appellant’s redeployment policy and failed to make a finding that there was a job, a position or other work to which Ms Pykett could have been redeployed. Such a finding is a necessary step in reaching the conclusion that it would have been reasonable in all the circumstances for Ms Pykett to be redeployed within the appellant’s enterprise. The failure to make such a finding is an error which warrants correction on appeal.”
Findings
[115] Although I have sympathy for Mr Konakalla and his circumstances at the time, I am satisfied that the evidence establishes BAB made attempts to redeploy Mr Konakalla. Even though their efforts focussed broadly on trying to find a suitable position for Mr Konakalla the activities taken by BAB would only just satisfy the requirements under s.389(2). Section 389(2) does not require BAB to find a position to redeploy Mr Konakalla to, rather the consideration is one of reasonableness in all of the circumstances. Although the process BAB undertook was not without its flaws, I am satisfied that BAB made numerous inquiries and a genuine attempt to find alternative employment opportunities for Mr Konakalla.
[116] Mr Konakalla was invited to, and given an opportunity to identify and express interest in any role he deemed suitable. By his own evidence he was aware of roles that were advertised on BAB’s website and did not make any concerted effort to express an interest in any of those roles. Instead he sent a single communication stating “see where you can fit me in” and then later expected this to be translated by Mr Webb as an expression of interest in a non-identified role.
[117] I am satisfied that Mr Webb in the absence of any genuine response from Mr Konakalla did ‘see where he could fit Mr Konakalla in’ and determined that there were no suitable redeployment opportunities for Mr Konakalla.
[118] Mr Konakalla’s evidence focused on two positions he says he could have been redeployed into. Those positions are currently occupied by Mr Sarron and Mr McClellan. As previously stated in this decision the process for selecting which employee is to be made redundant is not relevant to determining whether the dismissal is a case of ‘genuine redundancy’.
Conclusion
[119] For the reasons I have outlined above in this decision I am satisfied and I find that Mr Konakalla’s dismissal falls within the definition of a genuine redundancy in the FW Act. Accordingly Mr Konakalla’s dismissal is not unfair pursuant to s.385 of the FW Act. Therefore the s.394 application is dismissed. An order 70 dismissing the application is attached to this decision.
COMMISSIONER
A Konakalla on his own behalf
A Dearden for the Respondent
Hearing details:
2017
Melbourne
April 26-27
1 Konakalla v Bendigo and Adelaide Bank Ltd[2017] FWC 829
2 [2013] FCA 291
3 [2015] FWCFB 2618
4 [2015] FWCFB 2697
5 PN646
6 [2010] FWAFB 3488
7 Exhibit R1, [19]
8 Exhibit R2, [16]
9 Exhibit R1, [20]
10 Exhibit R2, [18]
11 Exhibit R2
12 Exhibit R2, [19]
13 Exhibit R2, [22]
14 PN306
15 PN129
16 PN132
17 Exhibit R2
18 Exhibit R1, [23] - [24]
19 Exhibit R1, [24]
20 Exhibit R1, [25]
21 Exhibit R2, DW6
22 PN318
23 PN247
24 Exhibit A1, [29] – [32]
25 PN426
26 Exhibit R5, [28]
27 Exhibit R2, [42]
28 Exhibit R3, [15] – [16]
29 Exhibit R2, [34]
30 Exhibit R2
31 PN233- PN238
32 Exhibit A1, [33]
33 Exhibit R1, [38]
34 Exhibit R1, [21]
35 Exhibit R1, [22]
36 Exhibit R2, [41]
37 PN138
38 Exhibit A1, [18]; PN137
39 Exhibit A1, [19] – [21]
40 PN142
41 PN145
42 [2017] FWC 607
43 Exhibit A1, [34]
44 Exhibit A1, [35]
45 PN129 – PN133; PN310
46 Exhibit A1, [35]
47 PN401- PN416
48 PN417
49 PN417- PN424
50 Exhibit A1, [37] – [39]
51 PN163
52 PN191 – PN192
53 PN434
54 PN438
55 PN445
56 Exhibit R6, [2m]
57 Exhibit R1, [27]
58 PN356; Exhibit R4
59 PN357
60 Exhibit R1, [30] – [31]
61 Exhibit R1, [31]; PN564
62 Exhibit A4
63 PN176
64 PN38
65 PN475; PN298
66 PN540
67 PN550, PN554
68 Exhibit R2, [51]
69 [2014] FWCFB 714
70 PR594554
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