[2019] FWC 4818

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alison Bleyerveen
v
Uniting Mission and Education
(U2018/12731)

COMMISSIONER JOHNS

MELBOURNE, 9 AUGUST 2019

Application for an unfair dismissal remedy – Jurisdictional objection – Genuine redundancy – Reasonable to redeploy.

Introduction

[1] This decision is about whether the termination of employment of Alison Bleyerveen (Applicant) was a case of genuine redundancy. The termination was effectedby an unincorporated association known as Uniting Mission and Education (Respondent/Employer/UME) on 28 November 2018.

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

[3] On 10 December 2018 Ms Bleyerveen made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) seeking a remedy for unfair dismissal. She seeks an order that the Respondent reinstate her into employment.

[4] On 14 January 2019 the Respondent filed a response to the unfair dismissal application. It objected to the Commission exercising jurisdiction in relation to the matter on the basis that, it contended, the dismissal was a matter case of genuine redundancy.

[5] Conciliation was attempted, but the dispute remained unresolved. Consequently the matter was listed for a jurisdictional hearing on 6 March, 9 April and 17 April 2019.

[6] At the hearing;

a) the Applicant was represented by herself. The Applicant gave evidence on her own behalf and was cross-examined. The Applicant also called the following witnesses:

i. Reverend Duncan Macleod, Minister – Team Leader, Port Phillip East Presbytery,

ii. Reverend Katherine Louise Merrifield, Director, Pathways Secretariat,

iii. Reverend Ronald Niall Forest Reid, a Minister of Northmead Uniting Church,

iv. Reverend Amelia Koh-Butler, Parramatta Mission’s Multi-faith Chaplin to Western Sydney University,

v. Reverend Rhonda Jane White, Lecturer in Practical Theology, and

vi. Reverend Ken Day, Minister at St Stephen’s Uniting Church, Sydney.

b) the Respondent was represented by Mr David Stewart of counsel. Mr Stewart called the following witnesses:

i. Reverend Tara Curlewis, from October 2017 the Interim Executive Director of the Respondent,

ii. Roxanne Harris, Human Resources Manager for Uniting Resources, and

iii. Dr Glen Brian Powell, from July 2018 a Board Member of the Respondent and from October 2018 chair of the Joint Nominating Committees appointed to conduct interviews as a part of a selection process that the Applicant participated in.

[7] In advance of the hearing the parties filed materials. In coming to this decision the Commission, as presently constituted, has had regard to the following documents in addition to the oral evidence and other documents tendered during the hearing:

EXHIBIT NO.	DESCRIPTION	TRANSCRIPT REFERENCE
1	Application form with annexures	PN41
2	Employer’s F3 Response	PN41
3	Applicant’s Objection Submissions	PN41
4	Applicant’s Merits Submissions	PN41
5	Respondent’s Submissions	PN41
6	Statement of Agreed facts	PN41
7	Statement of Alison Bleyerveen dated 22 February 2019	PN41
8	Statement of Reverend Duncan Macleod dated 19 February 2019	PN41
9	Statement of Reverend Katherine Louise Merrifield dated 20 February 2019	PN41
10	Statement of Reverend Ronald Niall Forest Reid dated 20 February 2019	PN41
11	Statement of Reverend Amelia Koh-Butler dated 13 February 2019	PN41
12	Statement of Reverend Rhonda Jane White dated 18 February 2019	PN41
13	Statement of Reverend Ken Day dated 17 February 2019	PN41
14	Statement of Sue Kaldor undated	PN41
15	Applicant’s further documents	PN41
16	Statement of Reverend Tara Curlewis dated 8 February 2019	PN179
17	Statement of Roxanne Harris dated 8 February 2019	PN973
18	Number not used
19	Statement of Dr Glen Powell dated 8 February 2019	PN41
20	Statement in Reply of Roxanne Harris dated 28 February 2019	PN979
21	Statement in Reply of Dr Glen Powell dated 1 March 2019	PN41
22	Number not used
23	Number not used
24	Number not used
25	Number not used
26	Number not used
27	Respondent’s Role Comparison Table	PN41
28	Notes of Interview of Dr Powell	PN1238
29	Supplementary Statement of Roxanne Harris dated 20 March 2019	PN1264
30	Respondent’s Table of Potential Redeployment positions	PN1273
31	Section 5 of Employment Manual	PN1288
32	Typed Interview Notes of Glen Powell	PN2273
33	Further supplementary Statement of Roxanne Harris dated 16 April 2019	PN2304
34	Email from the Applicant dated 16 April 2019	PN2304

[8] I have also had regard to the final submissions made by the parties following the hearing. They were as follows:

a) Respondent’s Final Submissions dated 3 May 2019,

b) Applicant’s Final Submissions dated 17 May 2019, and

c) Respondent’s Reply Submissions filed 24 May 2019.

Background

[9] On 4 March 2019 the parties filed a Statement of Agreed Facts (SoAF). Having regard to the relevant matters in the SoAF, other matters that were largely uncontested and the evidence in the proceedings I make the following findings of fact:

a) On 1 July 2011 UME was formed and was registered for an ABN being 73 734 074 344. 1

b) For all relevant periods UME was an unincorporated association. 2

c) On 3 December 2012 UME was registered with the Australian Charities and Not-for-profits Commission. 3

d) From November 2004 Vicki Roper has been the Employment & IR Manager for Uniting Resources. 4

e) From January 2014 until December 2018 Reverend Duncan Macleod was the Uniting Learning Network Director for UME. 5 He was the Applicant’s line manager.

f) From October 2017 until February 2019 Reverend Tara Curlewis was the Interim Executive Director of UME. 6

g) From February 2018 Roxanne Harris was the Head of Human Resources for the Synod and provided Human Resources advice to UME. 7

h) Between 1999 and 2014 the Applicant was a secondary school teacher of English and Religious Education. The Applicant holds a Masters of Theology and is a candidate for a Doctor of Ministry. She has undertaken a range of professional development. 8

i) From 1 July 2014 the Applicant commenced employment as a ‘Mission Resourcing Consultant’ (MRC Role) reporting to the Head of Uniting Learning Network of UME. 9 The Position Description for the MRC Role was annexure TC-1 to the witness statement of Reverend Curlewis.

j) The Applicant was initially paid a base salary of $44,717.00 per annum plus superannuation subject to tax, $19,164.00 tax free salary, a housing allowance of $12,652.00 per annum, motor vehicle allowance of $14,885.00 per annum and a resource allowance of $1,405.00 per annum. 10

k) As at the date of dismissal the Applicant received the following earnings: 11

i. taxable base salary of $50,223.25 per annum;

ii. non-taxable base salary of $21,524.25;

iii. book allowance of $1,510.00 per annum;

iv. housing allowance of $12,956.00 per annum;

v. work provided motor vehicle;

vi. superannuation.

l) The Applicant was not employed pursuant to any Award or enterprise agreement as defined in the FW Act. 12

m) At all times the Applicant directly reported to employees of UME. 13

n) The Applicant’s position in the original structure sat in the Resourcing Team (a part of the Uniting Learning Network) which was constituted of the following positions: 14

i. Next Gen Consultant;

ii. RE & Safe Church Consultant;

iii. New Initiatives Consultant;

iv. Lay Discipleship Rural Consultant;

v. Mission Resourcing Consultant (Applicant’s position);

vi. Multi-Cultural Consultant; and

vii. Leadership Consultant (x 2).

o) On 16 February 2018 the Standing Committee of the Synod authorised the General Secretary to engage Good Provider Pty Ltd (Good Provider) to conduct a review of UME. 15

p) On 8 March 2018 all staff of UME were advised by Jane Fry, General Secretary of the Church, that there would be a restructure of UME. 16

q) In March 2019 Good Provider was appointed to conduct a review of operations. In April 2019 the Applicant was consulted as a part of the review. In total in excess of 40 interviews were conducted by Good Provider.

r) On 25 May 2018 Good Provider produced a report which contained 14 recommendations. 17

s) On 25 May 2018 the Board of UME agreed to accept the 14 recommendations which included the creation of 4 separate divisions being: 18

i. Mission Strategy;

ii. Mission Enablement;

iii. Vital Leadership; and

iv. Uniting Theological College;

t) Within the Mission Enablement team there were the following positions created: 19

i. Head of Mission Enablement;

ii. Director of Rural & Regional;

iii. MSM Contractor (although this position was not ultimately advertised); and

iv. Mission Facilitation Consultant (MFC Role) (x 3);

u) The change in structure as between the Resourcing Team and the Mission Enablement Team is best represented by the following table:

Resourcing Team (pre-restructure)	Action taken re position	Mission Enablement Team (post-restructure)	Action taken re person (outcome)
1. Next Gen Consultant	Abolished	N/A	Braydon French (resigned) 20
2. RE & Safe Church Consultant	Moved to Uniting Resources	N/A	Emma Parr (moved to Uniting Resources) 21
3. New Initiatives Consultant	Redundant	N/A	Raymond Joso (became Mission Facilitator in new structure) 22
4. Lay Discipleship Rural Consultant	Abolished	N/A	Bronwyn Murphy (moved to new position within Synod) 23
5. Mission Resourcing Consultant	Redundant	N/A	Alison Bleyerveen (Applicant) (employment terminated)
6. Multicultural Consultant	Redundant	N/A	Fie Marino (employment terminated) 24
7. Leadership Consultant	Redundant	N/A	Sue Caldor (elected to take redundancy) 25
8. Leadership Consultant	Redundant	N/A	Peter Caldo (elected to take redundancy) 26
Head of Mission Enablement	Jorge Rebolledo 27 (external appointment)
Director of Rural & Regional	Mark Fawkner 28 (internal appointment)
MSM Contractor	Not filled or advertised 29
Mission Facilitation Consultant	Raymond Joso (internal appointment from Resourcing Team) 30
Mission Facilitation Consultant	Falepaine Maile (external appointment) 31
Mission Facilitation Consultant	Cameron Eccelstone (external appointment) 32

v) As is apparent from the table above, within the original 8 person Resourcing Team,

i. 1 resigned,

ii. 2 were reassigned to other Uniting entities,

iii. 2 took redundancy packages,

iv. 1 took up a new position in the restructure,

v. 2 (one of which was the Applicant) had their employment terminated.

w) As is also apparent from the table above, specialist consultant roles (including the MRC Role) were made redundant and, 3 generalist and multi-disciplinary roles (MFC Role) were created.

x) One of the transformation strategies was for UME to become more “user focused”. The June 2018 strategy document contained the following:

“Users (presbyteries and congregations) will be our primary focus. UME will reshape itself so the user experience through integrated mission, discipleship and leadership support that enables church health and growth. Been user focused will require “hardwiring” the relationships between UME, presbyteries and other key Synod agencies. It is expected that significant limb or time will be spent in the field listening to and providing support to users.” 33

y) The task of implementing the restructure was delegated to a taskforce comprising, David Cornford (UME Executive Officer), Duncan Macleod (Acting Head of Mission Enablement), Gerard Moore (Academic Dean representing UTC), Browyn Moore (General Secretariat) and Reverend Tara Curlewis (UME Interim Executive Director).

z) On 7 June 2018 all staff were advised of the outcome of the external review of UME. 34

aa) On 12 July 2018 the Applicant sent an email to Duncan Macleod, Head of Uniting Learning Network, outlining her views of a position description for new positions. 35

bb) On 26 July 2018 the Applicant attended a meeting with David Cornford, Executive Officer of UME, about the design of teams. 36

cc) On 11 September 2018 the members of management met with the Applicant to advise that her position was to be made redundant, she could either accept a redundancy package or she could apply for any of the new positions. 37

dd) On 14 September 2018 all new positions were advertised to all affected staff. 38

ee) On or about 18 September 2018 the Applicant indicated that she wished to apply for a position which was subsequently determined to be the Head of Mission Enablement and one of the MFC Roles. 39

ff) An interview panel was constituted for the Head of Mission Enablement Role. It included Dr Glen Powell (Chair), Ian Weeks, Danielle Hemsworth-Smith, Alimoni Taumoepeau and Reverend Tara Curlewis.

gg) On 19 October 2018 the Applicant was interviewed for the Head of Mission Enablement position but was not successful. 40

hh) A separate panel was constituted to consider candidates for the MRC Role. It was called a Joint Nominating Committee (JNC). The JNC comprised Dr Powell, David Cornford, Head of Mission Strategy, Reverend Mel Pouvalu, Uniting Church Engagement Team Member and Reverend Dr Rob MacFarlane, Presbytery Minister. 41

ii) Thirteen applications were received for the MFC Roles comprising of 13 candidates. Nine people, including the Applicant, were offered a first interview. 42

jj) On 22 October 2018 the Applicant was interviewed for one of the MFC Roles and was offered a second interview. 43

kk) The Applicant was unsuccessful in securing a MFC Role. 44

ll) On 19 November 2018 the Joint Nomination Committee recommended three people for the MFC Roles. 45

mm) On 20 November 2018 Dr Powell telephoned the Applicant to advise that she had been unsuccessful in securing a MFC Role. 46

nn) On 21 November 2018 the Applicant attended a meeting with Reverend Curlewis and Dr Powell during which she was advised that her position would be made redundant effective from 28 November 2018. 47

oo) The Applicant’s employment ceased on 28 November 2018 and she was paid 4 weeks’ pay in lieu of notice, 8 weeks redundancy pay and plus accrued but untaken annual leave. 48

[10] The Applicant submitted that she was unfairly dismissed and sought an Order that she be:

a) reinstated; or, if reinstatement was not deemed an appropriate remedy, or

b) compensation.

[11] In its Final Submissions the Respondent submitted that,

“Section 389(1)(a) FWA – employer no longer required the job to be filled by anyone

1. The position held by the Applicant of Mission Resourcing Consultant (the MRC position) with Uniting Mission and Education (UME), ceased to exist. The MRC position was broken up with some of the duties going to Uniting Resources; and, some of the duties going to the three new Mission Facilitation Consultant positions (the MFC position). The Applicant (eventually) accepted that the unique position of MRC was gone. 49

2. It is axiomatic that the MRC position was no longer required to be filled by anyone and the position became redundant. 50

3. Accordingly, the Respondent has satisfied the legislative requirement under s.389(1)(a) FWA.

Section 389(1)(b) FWA – no modern award or enterprise agreement in this case

4. There was no modern award or enterprise agreement that covered the Applicant’s employment with the Respondent. The Applicant appeared to accept this proposition. 51 For completeness, the Applicant cannot “fill” the statutory requirement for a modern award/enterprise agreement by reference to an internal redundancy policy.

5. Accordingly, the Respondent has satisfied the legislative requirement under s.389(1)(b) FWA.

6. At this point, as both s. 389(1)(a) and (b) FWA are satisfied, the Respondent has established that the Applicant’s dismissal was a case of genuine redundancy. Accordingly, the Applicant has not been unfairly dismissed. 52

Section 389(2) FWA – redeployment of the Applicant was not reasonable in all the circumstances in this case

7. It was put squarely to the Respondent that it cannot/does not satisfy s.389(2) FWA in this case, because:

a. the Applicant was required to go through an open selection process, and that is inconsistent with the authorities in the area. 53

b. what the Respondent ought to have done before it went out openly was it ought to have made an assessment about whether, or not, the Applicant say, for example, could have been a mission facilitator; which would involve going through the key responsibilities and competencies and simply asking if she could fulfil them. If it made an assessment that she could, then it should have slotted her into the position. If it made an assessment that she was not, then it could have gone out to market; 54 and

c. regardless of the above, the Respondent should have offered to redeploy the Applicant to any role available, for example, a cleaning position in a Presbytery in Perth. 55

8. First, with respect, there is no warrant in the statute or the case law for the proposition that an employer must assess whether a current employee could do the new role before going to market. Put in another way, there is no absolute obligation to exhaust all opportunities for people who are likely to be displaced in a restructure before an employer goes out to market. 56

9. Of course, there may be such a warrant in an industrial instrument or via a term having been incorporated into a contract of employment from a redundancy policy. However, that is not this case. In the present case the Commission is only called upon to determine whether, or not, s. 389(2) FWA is satisfied. The sub-section operates as an exclusion to a ‘defence’ afforded to an employer against an unfair dismissal claim in the event of a genuine redundancy.

10. The sub-section cannot be elevated to the point where it stands for the proposition set out in paragraph 7(a) and (b) above, because that would require clear and unequivocal words in the statute. With respect, those words do not exist; and, to the contrary the sub-section directs the Commission’s attention to what is reasonable in all the circumstances.

11. Second, the relevant passage (albeit obiter) in Ulan Coal Mines Limited v A. Honeysett and Ors [2010] FWAFB 7578, that goes closest to supporting such a proposition (although it is submitted it falls well short), is found at paragraph [34] as follows:

… where an employer decides that rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other Applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy.

12. It is submitted that the passage goes no further than saying that if such a process is adopted it might be found that the dismissal was not a genuine redundancy; not that it will be found to be so.

13. Third, the passage in the context of that case was focused on the vacancy being a suitable role for the employee. This proposition is unsurprising given the facts of Ulan Coal.

14. In short, the case involved coal miners ceasing to work at the Ulan Mine (50 kms north of Mudgee) and then (potentially) working as coal miners at other coal mines in the Xstrata Group: at [6]. The only change was the location of the work; nothing about the work changed in any way.

15. Accordingly, it had to be accepted that the employees were suitable for the role (they were coal miners); the issue being whether the role, given the increased travelling, was suitable for the employee/should have been offered to the employees. With respect, that is a very different case to the present one. In the present case, the UME underwent a significant change programme. The change programme involved subjective/cultural/theological skills, whereas Ulan Coal involved objective/practical/manual skills.

16. Fourth, a suitable role is not just that it would suit the employee to fill the position. It is necessary that the employee must also be suitable for the role. This proposition is clear from the preceding words in paragraph [34] of Ulan Coal.

17. The critical part of the passage for the present case is:

Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or within a reasonable period of retraining. (emphasis added)

18. Accordingly, the Full Bench directed specific attention to the required standard. The employer sets the standard that is required; and, the employer then assesses a candidate against the standard. This evaluative process is entirely within the purview of the employer. There is a good reason for this – it is the employer who is undertaking this important function (mission and education); and, employing/paying people to do this work.

19. The Full Bench decision in Ulan Coal does not prescribe that there is a necessary process that requires an employer to:

a. First make an assessment about whether, or not, the incumbent employee could fulfil the role by going through the key responsibilities and competencies and simply asking if she or he could fulfil them.

b. Then upon making an assessment that he or she could, then it should just slot him or her into the position.

c. And, only if the employer made an assessment that she or he was not suitable, then can the employer can go out to market.

20. With respect, the authorities do not stand for the proposition that an assessment as to suitability must be made before going to market. There is no doubt that it may be a factor, but, it cannot be elevated to the point where it is fatal to an employer relying on the section if they have not gone to market before making an assessment of the incumbent’s suitability.

21. The decision in Wilson v North Rockhampton Bowls Club Inc [2011] FWA 1928 at [87] makes good this point, because in that case it was held:

Was that a reasonable decision? In my view it was on the basis of my findings above that the change from the old role to the new role was sufficiently different, broader and requiring particular skills that the Respondent was entitled to determine whether a more suitable candidate than the Applicant wished to apply for the position. The Respondent has also made submissions that the new role receives higher remuneration on the basis of the changed nature of the position.

22. The reason that there is no such proscriptive approach is because to adopt such an approach is to lose sight of the critical words of s. 389(2) FWA in that:

389(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.

(emphasis added)

23. Fifth, it is accepted that the Respondent needs to demonstrate that there is a material difference between the old role and the new role in order to demonstrate that the employee does not have the skills and competence required to perform it to the required standard either immediately or within a reasonable period of retraining.

24. In the present case some of the functions of the MRC position were now to be carried out by a person in the MFC position. However, contrary to the submission of the Applicant, the MRC position and the MFC position were very different. 57

25. The critical point which the Applicant refused to accept during the selection process and throughout the proceedings (as did the witnesses called on her behalf), is that the MFC position required an entirely new approach to mission and education.

26. With respect, the starting point for the analysis in this case is not the incumbent employee and the old role. The starting point (taking into account all the circumstances), was the need for change in the UME.

27. In October 2017, external consultants were engaged to conduct a review on the effectiveness of the UME Board. As a result of this review, it was determined that there was a need for increased governance of the UME and for there to be a complete review of the entire portfolio. 58

28. At a meeting in February 2018, it was determined that an external consultant conduct this review, which led to the appointment of Good Provider Pty Ltd (Good Provider) in March 2018. 59

29. Following in excess of 40 interviews (including with the Applicant), Good Provider submitted its report dated 25 May 2018; 60 which having identified the “the big issues” made a series of significant recommendations.61 The recommendations were adopted by the UME Board on 25 May 2018.

30. The Applicant was included in the review and received the document titled UME Transformation Strategy June 2018. 62

31. The implementation of the new structure is explained by Reverend Curlewis. 63 Dr Powell gave evidence about the interview programme. Ms Harris explained the HR process including the creation of the position description for the MFC role. The Applicant provided her input throughout the process.

32. Importantly, the main thrust of the change programme was the move to an end user system/being “hard wired” to congregations etc/enabling and supporting leaders at a grass roots level/collaborating with a diversity of theological and cultural groups in the Church. This significant change in the way things were to be done in the mission and education space needs to be fully understood. The change is embracing theological and cultural diversity. With respect, this could not be further from coal mine work.

33. The theological and cultural issues were somewhat skirted around 64. In short, the change means working within conservative congregations and giving credence to those congregations’ theological and cultural views.

34. The fact that the language around this change in the UME has been imprecise/poorly articulated/not crisply communicated, is part of, and indicative of, the change in the way things were to be done in the UME. The JNC, headed by Dr Powell, was tasked with finding the right people for these new roles.

35. Dr Powell set out clearly the reasons the Applicant was not offered a role at. 65 He was not seriously challenged on these reasons. The key areas of lack of competence included the poor understanding of the new structure, an inability to understand the position was more focused and collaborative, and a lack of vision for the new structure.

36. The Applicant maintained that the new role was substantially the same if not identical to the role she already occupied; 66 and, doggedly sought to say on one hand it was the same role and in turn if there was any difference then she was already doing that work.67 Not only is this a good reason not to offer her the role, it is why an approach of slotting the same people into the new roles is problematic as it is prone to perpetuate the old ways. The Commission put this to the Applicant - she appeared to reluctantly accept the proposition.68

37. The Applicant also sought to have the Commission accept that her MRC position description (and the one for the MFC position description) was rubbish and never reflected what I did from the first day that I began. 69 Her evidence in this regard was not only undermined but demonstrated that she was unwilling to accept, despite it being obvious, that the roles were markedly different.70

38. It is submitted that the Applicant’s evidence on the whole was prolix and difficult to comprehend yet it tended towards her trying to put forward that she was capable of accepting other views that did not accord with her own and she was collaborative 71 in the sense of end user focussed/from grass roots up and had the capacity to work across theological and cultural diversity. Of course, these are the other areas that Dr Powell had identified as being where the Applicant lacked competence.72

39. That the Applicant had these requisite skills can be rejected because:

a. As to being end user focused she was squarely asked – Just give me the best example that you – of being user focused in the six months prior to June 2018 that you did? The Applicant’s answer was with respect to her joining a strategy committee at their request. The description of her work (despite her being at pains to use the terms collaboratively/developing a dream), was sitting on a standing committee, drafting position descriptions and being on a JNC recruitment panel. In short, she provided a resource to the Presbytery. 73

b. The Applicant having accepted that views in certain congregations that homosexuality was against god was an ongoing big issue in the Church, did not include this anywhere in her notes with respect to the new roles. 74 The Applicant understood that this was an issue going forward in the new roles, although it was not particularly well articulated during the process.75

c. Cultural and theological diversity and a “bottom up” or “grass roots approach” was squarely raised with the Applicant in cross-examination. 76 The Applicant was specifically asked for the best example of her dealing with a Tongan congregation that was anti-homosexual.77 The Applicant sought to have the Commission believe that her example, Griffith Uniting Church, involved dealing and engaging with cultural and theological diversity at a grass roots level. With respect, that is not correct. It is not correct because not only did her answers go only to a dispute over resourcing (i.e. a funding grant being used for multi-cultural celebrations); but, because in her application for the MFC role,78 the work with Griffith Uniting Church is described by her as her facilitating a consultation process between Anglo and a range of Pacifica cultures who held different views about resourcing mission. With respect, she was a third-party facilitator. The MFC role required direct engagement with culturally and theological diverse congregations i.e. different from the Applicant’s perspective.

40. The Applicant has been recognised as having valuable skills and experience, but she was not the right person for the new role of MFC.

41. Sixth, with respect, it is wrong to approach the question of re-deployment in this case on the basis of slotting the same people into the new roles because it was not simply about roles. It was a change in culture and an approach to theology in the congregations.

42. The only way to really grapple with this change was to go to the market. If the employer was wrong, then the current employees would have been placed in the new roles – two were. That is simple merit-based selection in action. Section 5 of the Employment Manual makes clear that the merit principle will be applied in all instances where affected employees are being considered for a vacant position. 79 Leaving aside whether the Church is a “business”, the UME being a National System Employer should be afforded this flexibility pursuant to the Objects of the Act.

43. Not only is this a different case from Ulan Coal, it is a case about change –change that is at times esoteric/rubbery – but that is the very space in which this change programme took place at UME.

44. That became and only could have become apparent from an open selection process. With respect, to prevent an open selection process/to slot the Applicant into the new role provided she had the basic competencies is to:

a. ignore the significant change that was required, and took place, at UME;

b. exclude other potential and, as it turned out, better candidates; and

c. make the organisation hidebound and ossified. An organisation that has declining membership and needs to directly engage with its culturally and theologically diverse congregations.

45. Seventh, it is not surprising in this case, where significant change was taking place, that it was difficult to precisely articulate what the employer was looking for in a prospective employee. However, the employer undertook an open and transparent selection process.

46. While a selection process is never ‘perfect’ and there are always disgruntled candidates who miss out on a position; in the present selection process a Joint Nominating Committee (JNC), interviewed a number of candidates (twice) and chose the candidates they were “looking for” to fulfil the roles.

47. The Applicant, despite having many attributes, was unsuccessful, in circumstances where she was given every opportunity, including a guaranteed first interview as well as a second interview despite having the lowest ranking (other than ‘not acceptable’) in the first interview. 80

48. Additionally, to only focus on her application for the position is to lose sight of the other candidates. In the present case, there were far more suitable candidates for the role. A review of the first and second round interview notes 81 clearly demonstrates why candidates other than the Applicant were chosen for the positions. Of course, not only was the Applicant not the next best candidate, it was most likely that if the other candidates had not accepted the positions, the positions would have been re-advertised.82

49. Eighth, it was put by the Commission that Reverend Duncan MacLeod, as the Applicant’s direct supervisor/line manager, was the best person to give evidence about whether or not the Applicant could fulfil the position description. 83 Dr Powell agreed in this exchange that this was possibly the case.

50. With respect, it was apparent from Reverend MacLeod’s evidence that he was in fact entirely unsuitable to give a view on the Applicant’s suitability for the role. Reverend MacLeod’s statement 84 displayed real animosity towards the change process.

51. In cross-examination, having been taken through the Good Provider report dated 25 May 2018 85 he refused to accept:

a. there was any need for real change, as all that was required was a stronger focussed strategic framework under which staff would be more effective; 86 and

b. that it was a direct indictment on his management. 87

52. It is submitted that Reverend MacLeod’s evidence displayed one of the fundamental problems in the Applicant’s case. The fundamental problem is that Reverend MacLeod, like the Applicant, did not believe there was any need for change in the UME.

53. It is submitted that the evidence of the Applicant and her witnesses, while all maintaining the Applicant should be placed in a new role as she had dealt with cultural and theological diversity (which is not the case): appeared to oscillate between the notion that there was no need for change in the UME because it was already doing what the report recommended, or, any need for change could be achieved by tweaking the structure and having a stronger focus on strategy. 88 Reverend Reid as her academic supervisor added nothing.89

54. It is submitted that the evidence of each witness called by the Applicant did not assist her because the witnesses did not accept that there was any need for fundamental change in the UME. It followed that they each believed that the Applicant was suitable for the new role.

55. If the proposed “internal” assessment was carried out prior to going to market in this case, it would mean placing significant emphasis on the flawed and somewhat myopic views of the Applicant’s witnesses.

56. Ninth, it is submitted that in cases such as the present which involve ‘cultural’ change there are six good practical reasons for going to market in all the circumstances:

a. If the employer goes to market it is a fortiori the case that it does not think that the employees in the old roles are entirely suitable for the new roles.

b. The employer necessarily believes that there are external candidates who may be better suited to the new roles.

c. The employer is in a position to assess its current staff and the external candidates to find the best person for the job. While the incumbent may well be the best person for the job the employer can only know this once it has tested the market.

d. The current employees simply do not have an elevated security of employment that provides - so long as they are able at the most basic level to do the new job - then they should be kept on in the new role.

e. It facilitates change in the way the work is done where there is significant resistance to this change from the current staff (as was the case here).

f. Proper regard is had to the requirement laid down by the Full Bench in that the employee must be able to perform the role to the required standard.

57. The Objects of the FWA are clear in this regard. The Act is to provide a balanced framework for co-operative and productive workplace relations - that promote national economic prosperity and social inclusion for all Australians - that are … flexible for businesses. 90

Re-deployment within the employer’s enterprise

58. Dr Powell suggested the Applicant apply for the education position; she did not want to as it was more in her past than her future. 91

59. The proposition that the Applicant should have been re-deployed to any role available, whilst problematic, as a matter of reality does not go very far in this case. 92

60. The Commission called on the production of every single vacancy that existed within the entire Uniting Church all over the country as at 28 November and the four [then six] weeks thereafter. 93

61. The Respondent complied with the call. 94

62. With respect to the available positions in UME and Uniting Resources, 95 it was clear that of the 13 ‘available’ positions, the Applicant was never in the running for 10 of the positions, for example, Senior Business Analyst IT.

63. It is submitted that there were only three possible positions on the face of the job title, being:

a. a Guest Relations Officer;

b. a Casual Venue Attendant; or

c. a Corporate Communications Manager.

64. As was submitted, 96 the three roles, while on the face of the job title, may have been roles within the Applicant’s skill set; when the position description for each was considered, the Applicant was entirely unsuited for the role. An aide memoire was provided by the Respondent that became Ex. 30. As is noted the first two positions were award covered; part time and casual respectively; and paid $26,130.62 and $13,145.00 respectively. It is fanciful to suggest that these roles were suitable. The Corporate Communications Manager position was salaried and paid $152,000.00 per annum.

65. The Guest Relations Officer position 97 required, inter alia, three years’ experience working in office administration. It was desirable also that the candidate had a sound knowledge of hospitality general operations and front of house or bookings and reservations. The Applicant’s office administration experience was a long time ago, and she conceded that she did not have a sound knowledge of hospitality and no formal hospitality qualifications98.

66. The Casual Venue Attendant position, 99 required, inter alia, experience in housekeeping, catering, gardening, grounds work or building maintenance and a basic food hygiene certificate. The Applicant conceded that she had did not have work experience in the former and did not have the latter.100

67. The Corporate Communications Manager position, 101 required, inter alia, relevant tertiary qualifications in Public Relations, Communications and/or Business. The Applicant conceded that she had did not any of these qualifications.102

68. There were also 9 vacancies listed on the Advisory Committee on Ministerial Placements (ACOMP). 103 The Applicant had applied for the position of Uniting – Church Engagement Leader – Parramatta Nepean Presbytery. It is submitted that this was not a vacancy available at the time of her redundancy as it only became available from 14 January 2019. In any event, the Applicant was unsuccessful in her application. UME had no control over the recruitment for the position as it was determined by the Presbytery.104

69. The other Uniting position 105 again only became available from 14 January 2019, so after the Applicant’s redundancy.

70. The Canberra Region Presbytery position at Braidwood 106 required demonstrable congregational preaching experience as an inherent requirement of the position. In fact, the successful Applicant had in excess of 10 years congregational preaching and pastoral experience serving congregations throughout rural NSW and Victoria.107

71. It is submitted that the Applicant’s evidence as to her experience in this regard was directed at her giving narrative sermons - within a service presumably conducted by a Minister or lay preacher. 108 With respect, that does not qualify her for the role at Braidwood. In any event, the successful candidate was far better qualified.

“associated entities”

72. Ms Harris gave evidence as to the way in which the Uniting Church operates in Australia through its Synods, unincorporated associations, presbyteries and congregations. 109 It is clear from this evidence that these other entities are not the employer, i.e. UME’s, enterprise. Accordingly, the “wider” Church is not part of the employer’s enterprise for the purposes of section 389(2)(a), even adopting the “wider concept” as discussed in Ulan Coal at [29].

73. The evidence is also that these entities are not corporations. The evidence is one of fact, in that it is not expert evidence. 110 The evidence was not challenged. In any event, even if it was challenged it would remain that there are hundreds if not thousands of unincorporated associations carrying out the work of the Uniting Church in Australia.

74. Of course, the FWA adopts the definition of associated entity from s 50AAA of the Corporations Act 2001: s. 12 FWA. For ease of reference, s 50AAA and the sections to which it refers, is attached to these submissions and marked “A”.

75. Accordingly, the issue of ‘associated entity’ of UME is relatively straightforward in this case, because as the entities are unincorporated associations, they are not a natural person, a body corporate (other than an exempt public authority), a partnership or a trust. 111

Sections 385-387 FWA – no unfair dismissal

76. No issue was taken by the employer with the Applicant’s capacity, conduct or performance; there was real and genuine consultation with the Applicant about the change programme; her redundancy; and, termination. 112

77. Accordingly, it is only as to any other matters the FWC considers relevant. 113 It is submitted that there are no other relevant matters and that the dismissal was fair.114”

[12] In her Final Submissions the Applicant submitted that,

“Pursuant to s389 a. FWA-employer no longer required the job to be filled by anyone because of operational changes in the employer’s enterprise.

1. Despite a change of title and a slightly changed reporting structure, the Mission Facilitation job, in intention, essence and disposition, is substantially the same as the Mission Resourcing job evolved to be in practice, and is in fact so important to the ‘operational requirements’ and missional strategy of UME that it is now being done by three newly hired people.

2. The Commissioner asked whether it was reasonable and logical to hold that a job now being done by three people could be the same as one, discrete position. He put it to me that my “unique position”, that is the position solely held by me, is gone, now to be done by three. 115 I agreed with this in a qualified way.116 In a technical sense it is true that the discrete position, with the title Mission Resourcing Consultant, and relating to other positions as part of a group known as the Resourcing Team, does not appear under that designation in the reorganisation of the UME Portfolio. However, I respectfully submit that this is not the same as the job no longer being required to be done by anyone. A job, very substantially the same in disposition, intent and practice, was advertised and is now being done by three people.

3. It is arguable, and on the evidence plausible, that I never held one discrete job to be done only by me, in the sense that my job was always intended to be a multi-disciplinary role working collaboratively in a multi-disciplinary team, with at least the Mission Initiatives Consultant but also a variety of others both within and external to the UME team. 117 I was employed on this basis. The Portfolio Review Report (PRR) Executive Summary, on which the Respondent claims to rely, indicates that multi-disciplinary teams were an essential element of its recommendations.118 The PRR also defines a multi-disciplinary team.119

4. The Mission Resourcing role was also a moveable feast of duties and responsibilities that took shape in relation to a variety of cross Synod multi-disciplinary teams who were listening for and responding collaboratively to the missional needs of users. The fact that I never solely carried out the discrete job described in the Mission Resourcing Consultant Position Description and always did far more, doesn’t mean that a job didn’t exist. A job existed, and I was paid to do it. My argument is that the Mission Facilitation role is substantially the same as the job I was always intended to do in the Mission Resourcing role, but in practice, in response to the user demands of the church, I did more than this. 120

5. The Commissioner asked if the new Mission Facilitation role took away parts of what I was doing, and whilst I agreed with this 121 I submit that the parts that were taken away were parts that could be broadly described as other duties as directed. It was an inherent and expected requirement that the Mission Consultant’s role would evolve iteratively in response to the discerned needs of the wider church.122 The part of the job that has been taken away is identified by Dr Powell123 and the Respondent in Closing submissions124 as “property work…moved to Uniting Resources”. Property work, except as it tangentially related to missional grants through the use of sales proceeds, was not an inherent requirement of my job. Property work has always been the primary responsibility of Uniting Resources (UR)125 but in response to the needs of the church there were many times I was asked by the Executive Director of UR to facilitate conversations and agreed outcomes with a missional focus because UR staff didn’t have the requisite skills and experience.126

6. The Commissioner asked whether I was “type cast” as a property officer and Reverend Macleod agreed that that was the view of people who had mainly worked with me as part of their work with Uniting Resources 127 but emphasised that my work with Uniting Mission and Education (UME) was so much more than that. Although I was identified by staff within UR, Uniting Financial Services, Uniting and various Presbyteries as the ‘property’ person for UME, this was never intended by my Position Description. It was not originally my skill set, nor do I have business management, insurance or building and engineering qualifications. I developed some expertise in these areas by being left as the default person when Reverend Niall Reid moved on from his role facilitating property conversations and projects on behalf of UR.128

7. The responsibility for Property was never explicitly mine nor UME’s. It has always been the responsibility of UR. Therefore, I submit that the work that has apparently been redirected to UR, was always and remains their responsibility and that what may appear to have been taken away from the new Mission Facilitation roles was never an inherent requirement of my job.

8. The need for flexibility and responsiveness or to embrace other duties as directed is still an inherent requirement of the Mission Facilitation roles and is expressed in Horizons 2 and 3 of the UME Transformation strategy. 129 The focus of the duties in the Mission Resourcing role varied and, in the future, the duties in the Mission facilitation role will vary from time to time. The inherent requirement and disposition of both roles are to be user focused, demand driven, collaborative, and to bridge theological and cultural diversity.

9. I clearly identify this in my first and second round interviews 130 where in the first interview I explicitly reference theological and cultural diversity in terms of both the multi-cultural and indigenous parts of the church and in the second interview emphasise the need to be sent into places beyond the UME bubble, as ‘persons of peace’, the need to listen, journey and partner with non-Christians, as well as the need to develop more focused goals to which everyone contributes. These references are both examples of my experience and practice, and an indication of the importance that I place on them going forward. It is also very evident in the scope, structure and language of both the job applications I wrote and tendered as evidence131 and in the work plan I submitted as evidence of the type of work I was doing.132

10. Notwithstanding that the scope and intent of the Position Description criteria for the Mission Resourcing role aligns with the advertised criteria for the Mission facilitation positions, a focus on the precise words used in relation to the duties of each role is unhelpful. Whilst it was always a multi-disciplinary role and I always worked in close collaboration with team members both within and outside of UME, the Position Description did not and could not anticipate the ways in which it would become necessary to work in order to be responsive and effective in relation to user focus and demand.

11. I have clarified that whilst they are not completely ‘rubbish’ the described duties were not a good indication of what the role entailed on the ground, when worked out in the complexities of inter-conciliar relationships within the Synod, and in response to perceived user needs at the time. 133 Word choice in position descriptions depend upon the disposition of the person who writes them and the presenting context at the time. Position descriptions are not the right or best indicator of what a role or job actually entailed. Mr Stuart, in his opening remarks on the first day says “what is important is the way that this job was to actually operate out in the missions”.134 I have made clear what actually happened in my job, all of which arose out of collaborative discernment across the breadth and diversity of the church, and how I responded with facilitation and resources that equipped people for effective leadership and discipleship. None of that is different from what is envisaged in the Mission Facilitation roles.

12. Respectfully, I draw attention to the fact that there are two parts to s. 389 a. which pivot on the word ‘because’. The word ‘because’ functions to imply a causal relationship between a job ceasing to exist and changes in operations in the employer’s business. Another way of putting this would be to say that the changes in operations made the redundancy inevitable.

13. To make this pertinent to my application the question becomes: Did changes in the operational requirements of the employer’s enterprise necessitate my role being made redundant and the employment of new people to do new work?

14. The Portfolio Review Report 135 named particular concerns and recommended changes. In Closing Submissions136 the Respondent has indicated that the “main thrust of the change programme was the move to an end user system being hard wired to congregations etc/enabling and supporting leaders at a grass roots level/collaborating with a diversity of theological and cultural groups in the Church.” The Respondent argues that the changes made in relation to the Mission Resourcing Consultant position responded to these concerns, however, this is to overlook or misconstrue the evidence available.

15. The need for change and to formally ratify this in a renewed structure that is hard wired to the grassroots is not in dispute, however, this does not represent an operational change necessitating my redundancy. Although some changes to the Uniting Mission and Education Portfolio are genuinely new, others identified in the Portfolio Review Report and endorsed by the UME Board are not in fact changes as they were already inherent requirements and expectations, particularly in relation to my job.

16. In the Mission Resourcing Consultant Position Description, under Selection Criteria, 137 the inherent requirements and expectations of the role are clear. The need to negotiate complex relationships across the breadth of the church, within the UME team and with pastoral sensitivity, is essential, as is flexibility and the ability to adapt to changing circumstances. Under personal attributes, an inherent requirement and expectation of the role is “strong, personal awareness, particularly in relation to interactions with others, being able to see things from other perspectives, including those from differing cultural backgrounds”. In order to be appointed to the Mission Resourcing role judgements were made that I could fulfil the essential, desirable and personal criteria required to carry out the role effectively. There was never any performance related issue raised with me in relation to any of these. To be clear, the supposedly new skills and competencies required by UME were already inherent requirements of my role and I carried these out effectively. They are not changes to the operational requirements of the business necessitating my redundancy.

17. The Respondent’s assertion that the differences between mission facilitation and mission resourcing are like the differences between coal miners and fitter and turners is spurious and not supported by the evidence. These are completely different trades, whereas on the evidence the qualifications, skills, experiences and competencies that I brought to the mission resourcing role were those needed in the Mission Facilitation role. 138

18. This is not to say that further change was not needed and I have never disputed that. My original letter of offer, under Accountabilities, makes clear that the description contained in the Mission Resourcing Position Description is “not intended to be exhaustive and the employer may require you to perform other duties in addition to those set out in the attached position description, provided that these duties are consistent with the nature of the position, or are otherwise consistent with your seniority, skills and experience”. 139 It is the nature of mission work to notice and be responsive to particular circumstances as they emerge. I was already doing this, in consultation, discernment and collaboration with my managers, other senior executive leaders within the NSWACT Synod, members and leaders of the various councils of the church and my team.140 These are not new changes responding to operational requirements that necessitated a redundancy of my role, nor my dismissal.

19. Other changes had already taken place in response to the listening the team was doing out in the field. All of us could see that a more collaborative, user focused and demand driven approach was needed. We had explicitly identified this in our Team retreat process at the end of 2016 and had made firm commitments in relation to this. 141 It is confirmed in Duncan Macleod’s testimony142 and his re- examination143 that the Portfolio Review report was responding to the transformation strategies suggested by members of the team, which arose from the firm commitments and changes to behaviour already made. To be clear, I was already working much more collaboratively with members of my team, and as a member of other teams, to listen and respond together to the needs of congregations, Presbyteries and other parts of the wider Uniting Church. This is very evident in my work plans which clearly identify outcomes, strategies and collaborations.144

20. Further, it is clear from these work plans that in the context of my work within UME, and in addition to the wider responsibilities that had been added to my role by different entities within the Synod, my main foci were listening and responding to the needs of Presbyteries and the congregations under their oversight in contextual, team based and agreed ways, the development and contextualisation of Mission Shaped Ministry as a mission, discipleship and leadership development tool, grants and non-real estate mission applications (NREMA) for mission, and various healthy church initiatives including Life and Witness consultations. On the evidence before the Commission the core platform proposed in the UME transformation strategy, was in fact, already well underway. 145

21. On the evidence before the Commission, it is clear that the Portfolio Review Report made recommendations based on the input of those who intimately knew and understood what mission looked like out in the field. 146 The Commissioner asked me whether the organisation thought it was a bigger change than I accepted.147 Whilst this was conceded, this is to do with a failure by the UME Board, the review team and the Interim Executive Director to understand how much change had already happened and was happening. They had no involvement at all in the day to day transactions of this work. My assertion that things had already changed and that I was already doing the role is not an example of me being inflexible, but rather an example of how the operational environment of UME was not understood by the Board, whom the Portfolio Review Report labelled as lacking the “technical capability for good governance”.148 and who were identified as “lacking the information and relational dynamic”149 needed “to make good, informed decisions”. Indeed Reverend Macleod indicates he “was struck by the lack of curiosity about how roles worked in practice” and the way that this led to “caricatures of the existing operational model and the development the team was going through” and that “nuances were sacrificed.”150

22. On the evidence tendered and accepted by Reverend Curlewis the transformation would require all of the staff to work together to affect the restructure and its recommendations and that there was no intention in the Portfolio Review Report to make staff redundant in order to support the operational changes it identified as being important. 151 To be clear, it was unreasonable on the evidence of the report to do so.

23. The Portfolio Review Report also counselled against “organisational blitzkrieg” as staff had already been negatively impacted by uncertainty and previous restructures. 152 This was explicitly named as a harmful approach, that could have wide ranging, unintended consequences on staff, and yet this is what has happened. There was no need for redundancy in order to meet the operational requirements of the organisation. It was unreasonable, unjust and harsh to proceed in this way, as it was contrary to the recommendations of the experts that had been asked to advise on the restructure.

24. It is not disputed that the UME Board engaged in a restructure that in some respects responded to the concerns and recommendations raised in the Portfolio Review Report. Some positions may well have been made genuinely redundant because of real changes to operational requirements. For example, the focus of the Lay Discipleship and Rural Consultant position has indeed been redistributed between different parts of the organisation, to different discrete positions, and with a changed focus that does make it more user and demand driven.

25. This was not universally the case. Some roles do seem to have been understood as suitable for redeployment of staff. On the evidence the original position held by Mr David Cornford, that of Executive Officer, was deemed by the Uniting Mission and Education Board to be similar enough to the position of Head of Mission Engagement to simply transfer him into this position with full continuity of service, 153 notwithstanding evidence which shows that the title of the roles have changed, the accountabilities have changed, the degree of positional authority and line management responsibilities have changed, the relationships with other staff have changed, and the nature of the specific duties have changed. The HR Manager, Roxanne Harris’ submissions show Mr Cornford’s position in the structure before the reorganisation,154 and the UME Transformation strategy diagram shows the relationships, accountabilities and duties of the Head of Mission Strategy role after the reorganisation.155

26. Further, Reverend. Curlewis made admissions in evidence that there was no review of the similarities or differences between the two positions carried out even though the EO duties were now only a part of a job with a broader scope. 156 It appears no proper comparison was done but rather assumptions were just made that he was suitable for the role even though it was clearly, at least on the surface, a different position. Clearly, where there was a will there was a way. The Commission can assume Mr Cornford must be a valued and competent employee. The Commission can also assume that the changes between Mr Cornford’s two roles, which are very similar to the changes between my role and the Mission Facilitation roles, were not so important as to affect the operational requirements of Uniting Mission and Education.

27. Although not conceded by me, all the things that the Respondent is arguing were so central to the decision to dismiss me, that is precisely worded Position Descriptions, the precise duties of the roles, the structure of the team, a user focused and demand driven focus and core platform of tools, a collaborative intra and inter team culture were waived in relation to the redeployment of Mr Cornford.

28. It is not reasonable and just for the Board to have made this call in the case of Mr Cornford and not in my case. On Reverend. Curlewis’s evidence I was a long standing, valued and competent employee. 157 Mr Cornford had only been employed in June.158 The Synod of NSWACT Employment Manual Chapter 5 states: “Employers support the principle of ‘procedural fairness’ and therefore will develop, promote and maintain systems and processes which are procedurally fair and respect the rights of individuals in the workplace”.159 It is clear that the Respondent has not followed their own policies. It is unreasonable and unjust to apply one set of rules to one employee and a completely different set to another.

29. In making the decision to redeploy Mr Cornford into this role without any independent and proper comparisons being made, and without an independent assessment of whether it was reasonable in all the circumstances given the nature of the role and Mr Cornford’s qualifications, skills, competencies and experiences, a role that I would have been suited to was not made available to me. To then assert that my job, in similar circumstances, with a change of title and a new structure around it, was radically different, is inconsistent, unreasonable, and because it led to me being made redundant, harsh. This is unreasonable, unjust and harsh because it was discriminatory and lacked procedural fairness. The result of such decisions is that I do not have a job and have lost my livelihood.

Pursuant to s389 (2) FWA A person’s dismissal will not be a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employers enterprise, or the enterprise of an associated entity.

30. The Act provides that in in determining whether redeployment was reasonable a number of matters may be relevant, including: whether there exists a job or a position or other work to which the employee can be redeployed^;; the nature of any available position; the qualifications required to perform the job; the employee's skills, qualifications and experience; and the location of the job in relation to the employee's residence and the remuneration (pay and entitlements) which is offered. An employer must consider whether it is reasonable to redeploy an employee to an associated entity. The degree of managerial integration between the different entities is likely to be a relevant consideration.

31. There were a number of suitable jobs available, or which would soon become available within UME, into which I could reasonably have been redeployed, including: 3 Mission Facilitation roles, the Head of Mission Engagement, the Head of Mission Strategy and Lay Pathways Educator. 160

32. I decided to apply for the Mission Facilitation roles and the Head of Mission Engagement role. The Mission Facilitation role was very close in scope and intent to the way I had been performing the Mission Resourcing role for the previous 21 months so cross examination largely focused on this role, with some cross over to the other role. Both the job advertisements, however, stated that Applicants would be assessed on their ability to demonstrate particular criteria. This was put to Dr Powell, specifically in relation to the Mission Facilitation role, and he agreed. 161 Both applications clearly addressed the advertised selection criteria, demonstrating with specific examples that my qualifications, skills, experiences and competencies made me suitable for the positions. Dr Powell was asked about this, again in relation to the Mission Facilitation role, and agreed.162 Dr Powell also agreed that my application addressed these criteria and that it was a very strong application.163

33. In relation to the Mission Facilitation role each of the Key Responsibilities in the Position Description 164 were closely examined on a number of occasions and by a number of witnesses. Reverend Curlewis agreed that in her capacity as Interim executive director she had not taken responsibility to assess whether I could perform these responsibilities even though it would have been reasonable to do so.165 The Commissioner established that Reverend Merrifield, as Executive Director of UME during much of my tenure, had a significant degree of direct knowledge of my competencies either personally or through conversations with my line manager.166 The Commissioner clearly put each responsibility in the Mission Facilitation Position Description to Reverend Merrifield asking her whether I had that competency and to give a specific example. In every instance she affirmed and elaborated on my capabilities.167 It is very clear that I have demonstrated all of the competencies required in the Mission Facilitation role.in practical, on the ground ways. This is because they were also inherent requirements of the job I had been doing.168

34. There were no performance related issues identified at the time of my dismissal and I was not dismissed for this reason. 169 During my employment I discussed my performance on a regular basis with both Reverend Macleod and Reverend Merrifield, and with my professional supervisor Reverend. Reid. At no time were concerns raised about my abilities to perform any of the responsibilities inherent in the Mission Facilitation Position Description.170 Some aspects of my role inevitably raised questions about how to proceed or caused tension or conflict, however, Reverend. Merrifield, Reverend Macleod and Reverend Reid have confirmed in their witness statements that I managed this honestly, collaboratively, flexibly and appropriately. There is no evidence that there was ever a time where concerns were discussed and I was unable to respond honestly, collaboratively, flexibly and appropriately.171

35. There is no evidence that I have ever shown any reluctance to think about or approach things in new ways. I have demonstrated through my willingness to take up training and coaching opportunities, throughout my time at UME and in my flexible and responsive approach to the scope of my duties and the need for change, that I had a positive interest and approach to new insights and approaches. 172 I participated enthusiastically in team planning and retreats and actively contributed to the Portfolio Review and restructure process, on the occasions that the team was invited to do so, in a future and user focused way.173 When asked in cross examination if he had ever seen me change my mind, Reverend Macleod gave a specific example of how the Civic Leadership Training I undertook had reshaped my thinking and practice in regard to the relationship between theology and leadership.174

36. The Employer had an obligation to me to make a proper and comprehensive evaluation of my qualifications, skills, competencies and experiences, and to ascertain whether any gaps could be addressed by re-training or coaching. They did not do this. They did not approach anyone who had managed my work. In fact, on the record, they acted in a prejudicial way towards me by relying on personal anecdotes about my personality based on how I was perceived as a teenager. 175 On the evidence of my professional supervisor, my colleagues, those I have worked with in the field and my managers, assertions that I am unsuitable for the Mission Facilitation role cannot be substantiated.176

37. The harshness of this in my particular case should not be overlooked. It is not an insignificant thing to be out of a job for anyone. However, in my case the supports available to ministers in the same position are not in place. Ministers who have had their placement terminated go back onto the ACOMP (placement) list and every month a group of people from across the Synod consider their profiles and actively seek to find them a new placement. This continues for at least two years, and sometimes beyond two years. As a lay minister, I am not supported in this way. Further my gender and my age make it statistically more likely that I will not be able to secure another full-time permanent position. In spite of applying for jobs within the church I have thus far been unsuccessful and I have only been able to secure irregular casual teaching, possibly and ironically, because of my experience which makes me more expensive than a younger, less experienced teacher.

38. A proper assessment of whether I could have been redeployed into other suitable jobs within UME was not done. Although Dr Powell expressed an opinion that I was well suited to the Lay Pathways role, and my indication that I would be prepared to consider this, or any other role that the church might feel I was suited to, nothing proactive was done about this. 177

39. Other suitable roles were also in the pipe-line or available across the associated entities of the church. 178 I indicated that two of these in particular could be considered suitable as I could demonstrate that I had the qualifications, skills, experiences and competencies needed to perform the roles effectively. One of these was a Church Engagement position with Uniting, which I applied for in an open, competitive interview process, and one was a part-time Lay Pastor position.179

40. The Respondent has not proven that the different entities of the church are not associated. 180 It is clear from evidence provided, and found under Proposals ii, ii a. b.. and c.181 and heard in cross examination182 that UME at least is associated and under the oversight of the broader Synod, through the Synod Standing Committee. The complexity and shifting relationships within the Uniting Church NSWACT Synod is also evident in my original letter of offer which claims that in relation to intellectual property created in the course of my job the employer should be regarded as The Uniting Church in Australia Synod of NSW and the ACT.183

41. Priority placements for lay persons are sometimes made via the ACOMP process, so it is not without precedent that I could not have been proactively assisted into a role for which I am qualified, skilled, competent and experienced, such as the Braidwood lay pastor role. Assumptions were made and continue to be made that I was not suitable without anyone even making me aware that it was a possibility 184 and without any proper assessment of my suitability. The assumption is made that there were better candidates than me. This is irrelevant, and not tested as I was not given the opportunity to have the conversation. The Respondent has not discharged its obligations to actively assist me to find employment in any way. Given its published policies and common practices this is unreasonable, and shows no care for me as a person.

42. I was not, at any stage prior to the decision being made to make my position redundant, consulted about or offered redeployment into any of these roles or any other roles. This is an established precedent of Industrial Case Law. 185 No-one made any attempt to consider or make inquiries about whether it would be reasonable to slot me into these roles.186 In spite of the Synod’s Employment Manual187 which states that “Employers will take all reasonable steps to assist any employee whose position will no longer exist”, on the evidence188 the HR manager took no proactive steps at all to redeploy me within UME or any other part of the NSWACT Synod, or any other part of the Uniting Church. Rather I was invited to apply for roles within UME in an open, competitive market process189

43. I should never have had to apply in an open competitive market with external candidates for roles into which it would have been reasonable in all the circumstances to redeploy me. Howarth vs Ulan Coal Mines Limited (2010) FWAFB 4817, and Ulan Coal Mines Limited vs Honeysett (2010) FWAFB 7578 make this plain.

44. In Howarth vs Ulan, the Commissioner writes at [20]: “While some of the ex-Ulan employees found jobs at other Xstrata mines, they had to apply for such positions”; and at [36]: “A stark point of difference between the parties concerns what is meant by ‘redeployment. I do not accept the definition put forward by Ulan. It says one must give the word a broad, practical and purposeful meaning. Its argument results, in effect, to mean employment in an associated entity. In my view, to suggest that redeployment equates to employment elsewhere is not to take an expansive view of the word redeployment. It is to alter its meaning”.

45. At 40] the Commissioner writes: Redeployment as envisaged by s389(2) requires a transfer of the employee. This is so even if it also might mean the entering into a new contract of employment”; at [41]: “Any action of Ulan to make some job vacancies known to employees, taking steps to have associated entities delay closing employment opportunities and then with those associated entities offering employment following an open selection process is not redeployment. It is merely assisting in the gaining of employment. Those engagements do not constitute redeployment.”; and at 47]: “Ulan made broad criticism of those Applicants who took no or insufficient steps to apply for available positions. This, it said, pointed to redeployment not being reasonable in those circumstances. I find that a failure to pursue job opportunities where they may have been competing against all comers is not on point. It would only be relevant if any available positions had been restricted to those retrenched and any Applicant had not shown sufficient interest”.

46. The above excerpts, together with the Full Bench dismissal of the employer’s appeal in Ulan, shows that Fair Work Australia sets a very high bar in terms of what is expected of employers when seeking to redeploy workers who would otherwise be made redundant. Not only will the employer be required to facilitate and make workers aware of other employment options, both internally and in its related entities, it will also be required to proactively assert that those employees be given jobs ahead of any competitive application process.

47. Once Sue and Peter Kaldor made it clear that they would be taking a redundancy I was the only employee within UME to whom the Respondent had obligations under the Fair Work Act and the National Employment Standards. UME’s obligation was first and foremost to me. If I could have done the job, or if I could have done it with a reasonable amount of upskilling or training, and if I was willing to take the job, UME had an obligation to prefer me and to redeploy me into the job.

48. I made UME aware of this in a letter to David Cornford, Michael Anderson, Jane Fry, Roxanne Harris and Duncan Macleod 190 which I wrote in the week immediately after I became aware that my position was to be made redundant. I asked in an interview at which Duncan Macleod, David Cornford, Fie Marino and Raymond Joso were present that a comprehensive internal process in line with the way the church assesses vitality of ministry take place before the positions went to open market.191 It was clear in both this conversation and in my letter which was widely addressed to those responsible that I wanted to have a conversation about this and that we sought a procedurally fair process to assess our suitability and ongoing sense of call.

49. On the evidence Reverend Curlewis and Ms Harris also did not consider it was part of their brief to personally follow up or act on this letter. 192 Surely it would be reasonable to expect them to do so given their roles and positional authority. Rather it seems that Ms Harris relied on the advice of others who had formed a view that they wanted to go to open market.193 Ms Harris made references to a ‘they’ who were explaining things to her rather than the other way round. Clearly the employer must take responsibility for the way ‘they’ have driven this process which has resulted in me being unfairly dismissed and without a job that adequately provides for my needs and commitments.

50. I clearly indicated that I believed that my position at least was substantially the same if not identical to the newly created MF PDs and provided evidence of this. The fairest, most reasonable, most ethical, most pastoral thing to do, under the standards set by the Assembly and in the Employer’s own Employment Manual would have been to take a consultative, collaborative, procedurally fair approach to assessing my suitability that drew from my own experience in the role, and from the evidence of my colleagues in ministry who I had worked with on various projects and initiatives, and most particularly from my line managers who were in the best position to know my capabilities. 194 This would have been in line with the Uniting Church’s published theological anthropology, which the intrinsic dignity of people and work as participation in Gods own image and work. They did not do this and in failing to do so fell well short of their own published guidelines, standards and procedures.

51. Given Reverend Curlewis’ position in the organisation and the fact that just before she went on annual leave she had put me and others on notice that we were in danger of losing our jobs, I submit that her lack of curiosity, and responsibility here is truly breathtaking in its lack of duty of care to me. It is seriously unreasonable for Reverend Curlewis not to have made herself aware on her return, wilfully unjust not to have taken steps once belatedly reading the letter to intervene in the illegal process unfolding, and extremely harsh not to have offered me every assistance to secure a suitable job because I was a valued long standing employee, had no performance issues, and was reliant on a full-time income to support myself and my family, particularly in maintaining a home and mortgage.

52. Further, the Employment Manual explicitly mandates that Employers will follow procedures and policies in accordance with the Fair Work Act 2009 and National Employment Standards, and this is confirmed by Ms Harris. 195 To my detriment this did not occur.

53. The process put in place did not address my claim that my job as it had evolved was essentially the same as the newly created ones in a procedurally fair way. The Employment Manual Chapter 5 clearly outlines a process where a grievance has been raised, indicating that the process must be in accordance with principles of natural justice. Explicitly, decision makers must act fairly and without bias and must not be the judge in their own cause. Parties must have the opportunity to put their case in a manner where all relevant issues are heard. 196 The reply to my letter ignored this completely, nor is there any evidence that my work plan was fairly and properly assessed against the criteria in the PD, nor that my line manager was consulted. Reverend Macleod has given evidence that my concerns were assessed by the people who had made the original decision, namely the UME Board Portfolio Review Committee, the HR manager and the Chairman of the UME Board.197 Ms Harris has indicated that she was the person who originally reviewed the PDs and determined on the advice of these same people that the positions were different.198 My concerns were judged by the same people who had made the original determination and the person most qualified to comment on my concerns and suitability for redeployment was not consulted. This, by the employer’s own standards, must be judged to be unfair and unreasonable.

54. What was communicated to be the process was done in a cold manner, lacking in any pastoral concern. Dr Powell and Reverend Curlewis both acknowledge this. 199 This denied me procedural fairness by failing to address concerns or give me an opportunity to elaborate my concerns.

Commissioner Johns: Thank you. Mr Stewart?

Mr Stewart: Nothing further, Commissioner.” 313

[67] In 2017 (for two semesters) Reverend White was seconded to the role of Acting Executive Director of the Respondent. That meant she had ultimate authority over the Applicant during this time. Reverend White also had oversight of the Doctor of Ministry programme in which the Applicant was enrolled. She gave evidence about the Applicant’s theological and pastoral capacity.

[68] Reverend Ken Day is a Minister at St Stephen’s Uniting Church, Sydney. Like the evidence of Reverend Reid, his evidence was of little utility.

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

[70] The Applicant’s application demonstrated sufficient competency for her to be selected for a first round interview. Her performance at the first round interview secured her a second round interview. It was the evidence of Dr Powell that only those candidates who demonstrated an ability to do the job in the first interview were selected for a second interview. 314 There is little doubt that the Applicant then performed poorly in the second interview. That poor performance at a single interview is not evidence that the Applicant could not perform the Mission Facilitation Consultant role.

[71] The Respondent submitted that “the main thrust of the change programme was the move to an end user system/being “hard wired” to congregations etc/enabling and supporting leaders at a grass roots level/collaborating with a diversity of theological and cultural groups in the Church.” The evidence establishes that the Applicant did not demonstrate her ability to achieve this, to the satisfaction of the Joint Nominating Panel, in her truncated second interview. However, having considered in greater detail the qualifications, skills and experience of the Applicant, it seems, more likely than not, that the Applicant could perform the MFC position. Had that deeper enquiry been undertaken by the Respondent into the qualifications, skills and experience of the Applicant (prior to requiring the Applicant to participate in open/external selection process), she would likely have been accommodated in the restructure process. There is simply no evidence that the Applicant is unable to work with conservative congregations or that she is unable to give credence to the theological and cultural views of those congregations.

[72] However, having determined that the Applicant was skilled and competent to perform the Key Responsibilities of the MFC Role, I have some concerns about whether there is alignment with all of the Key Competencies of the MFC Role. I had the opportunity to observe the Applicant over 3 days of hearing. That being the case I observed her for longer than the JNC. Admittedly, a hearing is different to an interview. However, while it is no doubt the case that the Applicant is passionate about working for an organisation that is responsive to its call to proclaim and exemplify the life of God and is committed to mission, what I also observed was a person who might be described as stubborn and inflexible. Her dogged insistence that the MRC Role and the MFC Role were the same is an example of that. It is very clear that the Applicant did not openly engage with and nor did she accept the review of UME and the resulting restructure. Even before me (some 10 months after the Board of the UME signed off on the new structure) the Applicant was arguing against the need for the same. Her apparent inability to “move on” was no doubt detrimental to her in the interview process. Some of the Key Competencies of the MFC Role include being “adaptable”, “open to new ideas” and being someone who “supports and drives organisational change.” I did not see the Applicant demonstrate these attributes. She would be well advised to seek some professional development in these areas.

What was the location of the job in relation to the employee’s residence and the remuneration (pay and entitlements) which was offered?

[73] Location and remuneration as between the MRC role and the MFC role were equivalent.

Conclusion about redeployment

[74] For the reasons set out above, the Commission, as presently constituted, is satisfied that redeployment of the Applicant into one of the three Mission Facilitation Consultant positions would have been reasonable in all the circumstances. Having made that finding it is unnecessary for me to consider what other positions she might reasonably have been redeployed into.

Conclusion about genuine redundancy

[75] For the reasons set out above, the Commission, as presently constituted, is satisfied that:

a) the Applicant was protected from unfair dismissal,

b) the dismissal was not a case of genuine redundancy within the meaning of s.389 of the FW Act because redeployment was reasonable in all the circumstances.

Harsh, unjust or unreasonable

[76] Having determined that the termination of Ms Bleyerveen’s employment was not a case of genuine redundancy I must now consider whether I am satisfied the dismissal was harsh, unjust or unreasonable.

[77] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[78] The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s387 of the FW Act:

“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.”

[79] Ordinarily I would be under a duty to consider each of these criteria in reaching my conclusion. 315 However, because the dismissal was not a case of genuine redundancy the consideration of the matters specified in s.387(a), (b) and (c) are neutral, unless in the circumstances another valid reason is identified. No other valid reason was identified by the Respondent.

[80] Matters arising from the redundancy (e.g. if relevant, a failure to consult with an employee) fall within s.387(h). 316

[81] Therefore, in relation to the dismissal of the Applicant I am satisfied that:

Valid reason – s.387(a)

(a) The Respondent did not assert that the reason for the dismissal of the Applicant was related to her capacity or conduct. Accordingly there cannot have been, and there was not, a valid reason for the dismissal related to her capacity or conduct.

(b) In all the circumstances of this case I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of the Applicant was harsh, unjust or unreasonable.

Notification of the valid reason and opportunity to respond – s.387(b); (c)

(a) The matters in s.387(b) and (c) of the FW Act deal with whether there was procedural fairness in respect of a reason for dismissal related to capacity or conduct.

(b) The dismissal of the Applicants was not related to capacity or conduct.

(c) Consequently, in all the circumstances of this case I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of the Applicant was harsh, unjust or unreasonable.

Unreasonable refusal by the employer to allow a support person – s.387(d)

a) Where an employee protected from unfair dismissal requests a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

b) In the present matter this is not a relevant consideration.

c) In all the circumstances of this case I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of the Applicant was harsh, unjust or unreasonable.

Warnings regarding unsatisfactory performance - s.387(e)

(a) The Respondent did not assert that the dismissal of the Applicant related to her unsatisfactory performance, so this matter is not relevant to my consideration as to whether the dismissal was harsh, unjust or unreasonable.

(b) In all the circumstances of this case I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of the Applicant was harsh, unjust or unreasonable.

Impact of the size of the Respondent on procedures followed and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(f); (g)

(a) The size of a Respondent’s enterprise may impact on the procedures followed by it in effecting a dismissal. Further, the presence of dedicated human resource management or expertise in a Respondent’s enterprise should ensure a higher standard of management of human resources.

(b) In the present matter the Respondent is an odd creature. It is an unincorporated association that is a part of the wider Uniting Church community. It does not have its own in-house human resource function but relies on the human resource expertise within Uniting Resources. That resource appears limited and stretched.

(c) In all the circumstances I am satisfied that the size of the Respondent (as a part of the broader Uniting Church community) did not have any adverse effect on the procedures it adopted in dismissing the Applicant. The process of proceeding to an external recruitment in preference to first exploring internal redeployment for the Applicant was clearly open to the Respondent. The advice to proceed in that way was not fundamentally flawed, but was inconsistent with the stated policy of the Uniting Church which envisages a greater measure of support being given to internal employees displaced in a restructure.

(d) In all the circumstances of this case I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of the Applicant was harsh, unjust or unreasonable.

Any other matters that the FWC considers relevant – s.387(h)

[82] Having considered each of ss.387(a)-(g) of the FW Act, it remains necessary to now consider subsection 387(h) in respect of the Applicant. Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.

[83] Once I have considered s.387(h) in combination with each of ss.387(a)- (g) of the FW Act, I must then decide (in respect of the Applicant) if, in all the circumstances, the termination of the Applicant’s employment was harsh, unjust or unreasonable. Deciding whether the termination was ultimately unfair involves the exercise of discretion.

[84] Although s.387 includes matters that the Commission must take into account in deciding how to exercise its discretion, the discretion conferred is otherwise expressed in general, unqualified terms. Of course, the discretion conferred must be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative purpose. Further, the discretion is also confined by the subject matter, legislative context and purpose.

[85] In exercising the discretion, guidance can be drawn from s.381 of the FW Act. It provides that:

“381 Object of this Part

(1) The object of this Part is:

(a) To establish a framework for dealing with unfair dismissal that balances:

a. The needs of business (including small business); and

b. The needs of employees; and

(b) To establish procedures for dealing with unfair dismissal that:

a. Are quick, flexible and informal; and

b. Address the needs of employers and employees; and

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: the expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[86] In respect of Ms Bleyerveen I consider the following matters to be relevant to the determination of whether her dismissal was harsh, unjust or unreasonable:
Matters telling against a conclusion that the dismissal was harsh, unjust or unreasonable

a) the Respondent engaged in extensive consultation (despite no obligation to do so under an Award or enterprise agreement) about the new MFC Roles,

Matters that support a conclusion that the dismissal was harsh, unjust or unreasonable

b) the Respondent failed to give life to its own employment policies which provide that “Employers will take all reasonable steps to assist any employee whose position will no longer exist”, 317

c) the Respondent did not proactively assist the Applicant to find alternative employment within it or within the broader Uniting Church organisation,

d) the open merit selection committee process disadvantaged the Applicant in her ability to properly demonstrate her ability to undertake the MFC Role,

e) the age of the Applicant,

f) the very specialised nature of the work that she was undertaking with the Respondent that was not easily transferable outside the context of the Uniting Church,

g) the time of the year at which time the dismissal was affected which meant that it made it more difficult for the Applicant to obtain alternative employment in her previous career as a teacher.

[87] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is satisfied that, overall, and having regard to the obligation to afford a “fair go all round” the dismissal of the Applicant was unreasonable and harsh. The failure to redeploy the Applicant, leads me to the conclusion that the dismissal was unreasonable because it was decided upon incomplete information in circumstances where the Applicant was not provided with the fairest opportunity to display her capability to undertake the MFC Role. Further it was harsh because of the impact on the Applicant having regard to her age and the specialist nature of the employment that she was engaged in. The timing of the dismissal also impacted upon the Applicant’s ability to secure work in her other discipline of teaching.

[88] Accordingly, the Commission, as presently constituted, finds Ms Bleyerveen’s dismissal was unfair within the meaning of the FW Act.

Remedy

[89] Section 390 of the FW Act sets out the circumstances in which I may make an order for reinstatement or compensation:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The Commission may make the order only if the person has made an application under section 394.

(3) The Commission must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[90] I have already dealt with the issues at s.390(1)(a)–(b) above. The Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal pursuant to s.382 of the FW Act and the Applicant was dismissed unfairly. An order dismissing the jurisdictional objection will be issued with this decision.

[91] As a consequence of the above, the Commission is now required to determine whether to order:

a) the reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate,

b) compensation if it is satisfied such an order is appropriate in all the circumstances.

[92] However, noting that the termination occurred in November 2018 it is likely that the circumstances of the Respondent and the Applicant may have changed. It may be that the Applicant has found alternative employment and no longer presses reinstatement. It may be that any alternative employment found by the Applicant will reduce any amount of compensation that might be awarded. It may be that, with the passage of time, the Respondent now has other vacancies in which the Applicant could be redeployed. It might even be the case that there is now a vacancy in one of the MFC Roles. If there is no vacancy in one of the MFC Roles (and no order would be made compelling the Respondent to terminate the employment of one of the people in the MRC Role in order to make a vacancy for the Applicant) and there are no other vacancies within the Respondent or the broader Uniting Church it may be that the only remedy left available to the Applicant is compensation (if appropriate).

[93] Therefore, as a matter of procedural fairness, the parties should be provided with an opportunity to put on further evidence and materials in relation to relevant matters concerning remedy (if any).

[94] Consequently, the matter will be programmed for further hearing about the question of remedy (if any). A Notice of Listing for the conduct of a mention/directions hearing will be issued with this decision.

COMMISSIONER

Appearances:

Ms A Bleyerveen, for the Applicant

Mr D Stewart, Wentworth Chambers, for the Respondent

Hearing details:

6 March 2019, Sydney

9 April 2019, Sydney

17 April 2019, Sydney

Final written submissions:

Respondent’s Final Submissions, 3 May 2019

Applicant’s Final Submissions, 17 May 2019

Respondent’s Reply Submissions, 24 May 2019

Printed by authority of the Commonwealth Government Printer

1 SoAF, para 4

2 SoAF, para 5

3 SoAF, para 10

4 SoAF, para 6

5 SoAF, para 7

6 SoAF, para 8

7 SoAF, para 9

8 Statement of Applicant dated 22 February 2019

9 SoAF, para 11

10 SoAF, para 12

11 SoAF, para 13

12 SoAF, para 14

13 SoAF, para 16

14 SoAF, para 17

15 SoAF, para 18

16 SoAF, para 19

17 SoAF, para 20

18 SoAF, para 21

19 SoAF, para 22

20 Transcript PN74-78

21 Transcript PN80-85

22 Transcript PN86-106

23 Transcript PN109-118

24 Transcript PN119-127

25 Transcript PN128-137

26 Ibid

27 Transcript PN139

28 Transcript PN140-147

29 Transcript PN148

30 Transcript PN148

31 Transcript PN150-152

32 Transcript PN154

33 Exhibit 7, Annexure AB1, page 1.

34 SoAF, para 24

35 SoAF, para 25

36 SoAF, para 26

37 SoAF, para 27

38 SoAF, para 28

39 SoAF, para 29

40 SoAF, para 30

41 Exhibit 19, para 13

42 SoAF, para 31

43 SoAF, para 32

44 SoAF, para 33

45 SoAF, para 34

46 SoAF, para 35

47 SoAF, para 36

48 SoAF, para 37

49 PN1613 – PN1629

50 s.389(1)(a) FWA; Jones v Department of Energy and Minerals (1995) 60 IR 304 AT 308; Dibb v Federal Commissioner of Taxation (2004) 136 FCR 388

51 PN47 – PN48

52 S.385(d) FWA

53 PN51

54 PN51 – PN52; PN311; PN368; PN1047; PN1113

55 PN301; PN303; PN307

56 Cf PN311

57 PN23 – PN24; Exhibit 27, Respondent’s Comparison Table, Third Column

58 Exhibit 16, Curlewis 8/2/19 statement [11]

59 Ibid [16]

60 See exhibit 16, Curlewis 8/2/19 statement [17], ‘TC-1’ pp. 14-92

61 Summarised at exhibit 16, pp. 22-23

62Ex 7 Bleyerveen statement [13]-[18]

63 Ibid [22] – [31]

64 Until PN 825

65 Exhibit 19, [19]

66 Exhibit 7, [33]

67 PN1607 – PN1612; PN1667 – PN1683; PN1656 – PN1659 – PN1669

68 PN1685 – PN1869

69 PN46; The Applicant had previously put it slightly less stridently at PN24

70 PN1545 – PN1604; PN1613 – PN1629

71 The Applicant had described ‘collaboration’ as being a weasel word

72 Exhibit 19, para 19

73 PN1648 – PN1655

74 Exhibit 7, AB-03; PN1693 – PN1717

75 PN1757 – PN1777

76 PN1785 – PN1790

77 PN1787

78 Exhibit 7 “AB-8” under the heading – ability to work with diverse culture

79 Exhibit 31, page 7 last bullet point

80 Exhibit 19 [15]; [17]; [19]; [20]; [21]; [22]; GP-1 pp. 15 – 16; Exhibit 21, [4] – [11]; Exhibit 28

81 Exhibit 19 pp. 15 – 16; Exhibit 28

82 Exhibit 21, [9]; PN585 – PN588

83 PN395 – PN399

84 Exhibit 8, [7.15]

85 PN1985 – PN2030

86 PN2019

87 PN2029 – PN2030

88 Day XX PN1904 – PN1922; MacLeod XX PN1985 – PN 2096; Koh-Butler XX PN2164 – PN2176; Merrifield XX PN2323 – PN2383; White XX PN2407 – PN2422

89 PN2232 – PN2237

90 s.3(a) FWA

91 Exhibit 7 at para 62(c); See also para 67

92 Technical and Further Education Commission t/as TAFE NSW v Pykett[2014] FWCFB 714

93 PN305; PN307

94 Exhibit 29

95 Exhibit 29, para 4

96 PN1270 – PN1271; PN1276 – PN1285

97 Exhibit 29, pp. 36 – 41

98 PN 1801 – PN 1803

99 Exhibit 29, pp. 31 – 35

100 PN1804 – PN1805

101 Exhibit 29, pp. 47 – 51

102 PN1807

103 Exhibit 29, [6]

104 Exhibit 33, [5]

105 Exhibit 29, [6.8]

106 Exhibit 29, [6.1]

107 Exhibit 33, [9]

108 PN2288 – PN2330

109 Exhibit 17, [2]; Exhibit 29, [10] – [13]

110 PN1237 – PN1331

111 There is a statutory property trust under the Uniting Church in Australia Act 1977 (NSW): see Ex. 5 [3]-[7]

112 s.387(a)–(g) FWA

113 s.387(h) FWA

114 s 381(2) FWA

115 PN1628

116 Ibid

117 Exhibit 9, para 4.1; Exhibit 8, paras 4.2 – 4.3; 5.1

118 Exhibit 16, TC-1, page 22

119 Exhibit 16, TC-1, page 40

120 PN1733

121 PN1626

122 PN1604

123 Exhibit 21, page 3

124 RCS p.1, para 1

125 Exhibit 25; PN1530

126 PN1551

127 PN2052 – PN2055; PN2086

128 Exhibit 10, paras 1; 6.1

129 Exhibit 7, AB-1

130 Exhibit 32, page 1; Exhibit 21, GP-2, pages 1 – 2

131 Exhibit 7, AB-7 – AB-8

132 Exhibit 15, LSE 1

133 PN1525 – PN1551; PN1564 – PN1573; PN1591 – PN1592

134 PN53.

135 Exhibit 16, TC-1

136 Para 32

137 Exhibit 16, TC-1 pages 10 – 11

138 Exhibit 8, 4.1 – 4.3; 5.1; 6.1 – 6.3; Exhibit 9, 4.1 – 4.4; 5.2; annexures

139 Exhibit 16, TC-1, p.2

140 PN1646

141 Exhibit 7, AB-6

142 Exhibit 9, 5.1 – 5.3; 7.3

143 PN2100

144 Exhibit 15, LSE 1 and 2

145 Exhibit 15, LSE 1

146 Exhibit 16, TC-1, p.89

147 PN1685

148 TAB 16, TC-1, page 16, para 5

149 Ibid, page 21

150 Exhibit 8, 7.15

151 Exhibit 16, TC-1, p. 94, p. 242 – 243

152 Exhibit 16, TC-1, p. 24

153 PN325 – PN337

154 Exhibit 17, RH-1, p. 8.

155 Exhibit 16, TC-1, p. 47.

156 PN331; PN326.

157 PN446 – PN451

158 PN321 – PN322

159 Exhibit 31, 1.7

160 Exhibit 16, TC-1, p. 112 – 113

161 PN706 – PN708

162 PN713

163 PN732

164 Exhibit 16, TC-1, p. 99

165 PN385 – PN388

166 PN2352 – PN2353

167 PN2353 – PN2381

168 Exhibit 8, 6.1-6.4; Exhibit 9, 4.1-5.5

169 Exhibit 16, TC-1, p. 112

170 PN2096

171 Exhibit 8, 6.4; Exhibit 9, 5.4, 6.2; Exhibit 10, 5.3-6.2

172 Exhibit 7 AB 7, AB 8; Exhibit 33; Exhibit 34

173 Exhibit 7, AB 3, AB 5

174 PN2120 – PN2125

175 Exhibit 19, page 4

176 Exhibit 8 – Exhibit 14

177 Exhibit 7, Para 62.c

178 Exhibit 29

179 Exhibit 33; Exhibit 34

180 PN1328 – PN1331

181 Exhibit 16, TC-1, p. 93

182 PN215 – PN216

183 Exhibit 16, TC-1, p.4

184 Respondent’s Closing Submissions, paras 70 – 71

185 Alfred v Hutchinson PTY Ltd (2012) FWA 8289; Suridge v Boral Window Systems Pty Ltd T/A Dowell Windows (2012) FWA 3126

186 PN357 – PN371; PN351; PN370; PN388; PN1026 – PN1052

187 Exhibit 31, para 1.9

188 PN1399 – PN1403

189 Exhibit 16, TC-1, p.112

190 Exhibit 7, AB 4

191 Exhibit 7, para 36 – 38; Exhibit 8, para 7.12

192 PN 438 – PN440; PN1139 – PN1152

193 PN1149

194 Exhibit 7, AB 21; PN1376; PN1398; Exhibit 31, Para 1.9

195 Exhibit 31, para 1.1; PN994; PN1062

196 Exhibit 31, 3.2

197 Exhibit 8, para 7.12

198 PN1116; PN1124; PN129; PN1131

199 PN868; PN451

200 Exhibit 2, paras 10, 11; Exhibit 19, Para 17; PN875; PN514

201 Exhibit 7, AB-10

202 PN545

203 Exhibit 7, AB-10

204 Exhibit 2, paras 9 and 11

205 Exhibit 19; Exhibit 21

206 PN877 – PN888

207 Exhibit 32

208 Exhibit 2, para 10

209 PN875 – PN907

210 PN909

211 PN906 – PN907; Exhibit 19, paras 5 and 6

212 Exhibit 19, annexures

213 PN1377; PN1426; Exhibit 7, AB-21, pp. 72 – 73

214 PN699 – PN701; PN918 – PN934

215 PN917; PN924; PN937

216 PN734 – PN735; PN885 – PN888

217 Exhibit 7, AB-7, AB-8; Exhibit 8, 4.3, 6.4; PN2431 – PN2433

218 PN835; PN841

219 PN1757 – PN1770

220 PN1772; PN1777

221 PN1765 – PN1766

222 PN1772 – PN1775; PN1787 – PN1790

223 PN2093 – PN2095; PN2383

224 PN2096; PN2382

225 PN2096; PN2382 – PN2383

226 Exhibit 11, para 12; PN2164 – PN2165

227 PN2156

228 Exhibit 11, para 11

229 PN1746; PN1755 – PN1756

230 PN 2176

231 Exhibit 16, TC-1, p. 45

232 PN2171; PN2175

233 PN2174

234 PN2176

235 PN1772

236 PN1770

237 Exhibit 11, para 12; Exhibit 8; PN2094

238 Exhibit 9, paras 5.3 – 5.4

239 Exhibit 13, pp. 48 – 50

240 Exhibit 13, p. 49

241 Exhibit 13, pp. 49-50

242 Exhibit 16, para 18; Exhibit 19, para 11.4

243 Exhibit 12, para 6; Exhibit 14, para 5

244 Exhibit 7, AB-6; Exhibit 15, LSE 1 – LSE 2; Exhibit 8, para 5.1; Exhibit 14, p.58 Competencies of Colleagues

245 PN1668

246 Exhibit 7, AB-4

247 Exhibit 16, TC-1, p.6

248 As to another role in the employer’s enterprise or an associated entity the Respondent relies upon its final submissions dated 3 May 2019 in that regard.

249 The Respondent replies to the principal propositions put forward by the Applicant in her submission of 17 May 2019. Where the Respondent has not replied it is submitted that the point is immaterial or if it is contrary to its final submission, the Respondent relies upon its final submissions.

250 TC-16, pages 18-21.

251 Exhibit 19 at [19], RFS [35]

252 Exhibit 16, “TC-1”, pp.7-11

253 Exhibit 19, p. 16

254 See RFS [49] – [55]

255 See ACS, para. 4 on page 3

256 See last paragraph of page 3

257 See the paragraph at the top of page 4

258 Exhibit 7, AB 5

259 PN1759

260 See RFS [70] – [71]

261 Exhibit 3

262 SoAF, para 14

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

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

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

266 Exhibit 31, para 1.9

267 Exhibit 27

268 Transcript PN818-853

269 Transcript PN284

270 Transcript PN375

271 Transcript PN376

272 Transcript PN377

273 Transcript PN378

274 Transcript PN379

275 Transcript PN380

276 Transcript PN381–382

277 Transcript PN384

278 Transcript PN389

279 Transcript PN390

280 Transcript PN395

281 Transcript PN447

282 Transcript PN448

283 Transcript PN449

284 Exhibit 19, para 19

285 Exhibit 19, para 20

286 Exhibit 19, para 21

287 Exhibit 21, para 18

288 Exhibit 21, para 19

289 Transcript PN484-486

290 Transcript PN490-495

291 Transcript PN519

292 Transcript PN523

293 Transcript PN545

294 Transcript PN559

295 Transcript PN562

296 Transcript PN567

297 Transcript PN587-588

298 Transcript PN662-695

299 Transcript PN713-740

300 Transcript PN768-788

301 Transcript PN835

302 Transcript PN856-863

303 Transcript PN882

304 Transcript PN881

305 Transcript PN877

306 Exhibit 8, para 6.3

307 Transcript PN2086-2097

308 Transcript PN2120-2125

309 Exhibit 9, para 5.2

310 Exhibit 9, para 5.6

311 Transcript PN2353-2381

312 Transcript PN2382-2389

313 Transcript PN2170-2178

314 Transcript PN545

315 Sayer v Melsteel[2011] FWAFB 7498

316 UES (Int’l) Pty Ltd v Harvey (2012) 215 IR 263

317 Exhibit 31, para 1.9

Alison Bleyerveen v Uniting Mission and Education