Andrew Jewell v Broadspectrum (Australia) Pty Ltd
[2016] FWC 5787
•18 AUGUST 2016
| [2016] FWC 5787 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Andrew Jewell
v
Broadspectrum (Australia) Pty Ltd
(U2016/5454)
DEPUTY PRESIDENT BARTEL | ADELAIDE, 18 AUGUST 2016 |
Termination of Employment - jurisdictional objection – whether dismissal a case of genuine redundancy.
Introduction
[1] Andrew Jewell (the applicant) was engaged in the position of Supply Manager with Broadspectrum (Australia) Pty Ltd T/A Broadspectrum (Broadspectrum or the respondent). His employment was terminated on 29 February 2016 after a restructure of the ANZ Plant and Equipment Team (P&E), in which he worked.
[2] Broadspectrum is a major employer within Australia. It operates in various sectors including defence, infrastructure and resources and provides a range of services including logistics, operations, maintenance and business support services.
[3] The applicant accepts that the position of Supply Manager no longer existed as a result of the P&E restructure. He also accepts that he was not covered by a modern award or enterprise agreement and that the respondent had no obligation to consult with him in relation to the restructure. The applicant’s case is that it would have been reasonable for Broadspectrum to redeploy him into another position and that its failure to do so meant that his dismissal was not a case of genuine redundancy.
[4] The respondent argued that, despite being under no obligation to do so, it consulted with the applicant in relation to the restructure. The respondent considered the applicant for redeployment within the new structure but he did not have the necessary skill set and/or qualifications for the available roles, or was unable to relocate to fill an available role. Accordingly, the applicant’s dismissal was a case of genuine redundancy.
[5] Ms Clarke, of counsel, was granted permission to appear for the respondent. The applicant was self-represented.
The statutory context
[6] The applicant is a person protected from unfair dismissal within the meaning of s.382 of the Fair Work Act 2009 (the Act) and therefore has the right to bring an unfair dismissal application before the Fair Work Commission (the Commission).
[7] In order to establish that he has been unfairly dismissed, the applicant must satisfy the Commission on the four criteria set out in s.385 of the Act as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[8] The Commission is required to decide certain matters before it considers the merits of the application, and for present purposes this relevantly includes whether the dismissal was a case of genuine redundancy. 1
[9] Section 389 of the Act deals with genuine redundancy and provides:
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
[10] If the applicant’s dismissal is a case of genuine redundancy, then that is a complete defence to an unfair dismissal application and the application must be dismissed. Section 389(2) of the Act places a limitation on the employer’s capacity to mount such a defence by making it unavailable if it would have been reasonable to redeploy the employee.
[11] The applicant identified four new positions created as a result of the restructure that he could have been redeployed into: Category Specialist; Asset Engineer; Executive Manager – Business Engagement Plant and Equipment (the Business Engagement role); and Project Manager at Defence Base Services (the Defence role). He contends that management were not serious about his redeployment because it had not sought appropriate information about the work he had performed and the skills he possessed.
The applicant’s employment
[12] The applicant commenced employment with Broadspectrum (then known as Transfield Services) in 2009 in the position of Logistics Co-ordinator. He was appointed to the position of Asset Buyer within P&E in July 2012 and then to the newly created position of Supply Manager in November 2014. At the time of appointment the position carried a remuneration of $127,000 per annum including superannuation.
[13] Until February 2015 the applicant reported to Michael Bourke, who held the position of Executive General Manager Plant and Equipment. Mr Bourke was summonsed to attend. 2 He confirmed the work undertaken by the applicant and that the applicant was a capable employee with a willingness to undertake projects outside the scope of the Asset Buyer and Supply Manager positions. Mr Bourke also confirmed that he was not consulted in relation to the applicant’s skills and abilities before the applicant was made redundant.
[14] A job and person specification (JPS) for the Supply Manager position 3 identifies the purpose of the position as follows:
“The Plant & Equipment Supply Manager is responsible for the provision of purchasing of all capital assets including computers, disposing of surplus assets and master data management in Australia and New Zealand.
The Plant & Equipment Supply Manager together with direct reports will develop asset specifications, develop strategies to standardise asset categories and negotiate purchases with suppliers focusing on best value. They will be responsible for the creation and maintenance of asset master, governance of financial asset register and execute all assets disposals surplus to business.
They will ensure all activities are performed in accordance to organisation wide strategies, policies, guidelines and standards.”
[15] The Supply Manager position had line management responsibility for two positions, one based in New Zealand. The key responsibilities appear under the following headings: Financial, Supplier Management, Commercial Administration, Internal Operations Liaison, Procurement Policy and Procedures, and Business Development.
[16] The Technical competencies of the incumbent are set out in the JPS as follows:
“ Knowledge and experience in asset sourcing with specific emphasis on asset categories applicable to Transfield Services business.
- Knowledge and experience of procurement principles and practices and supplier management
- Proven negotiation skills
- Strong communication, analytical and problem solving skills.
- Leadership and teamwork
- Listening and influencing ability with key stakeholders in a multi-site and industry environment
- Superior writing and presentation skills
- Administratively self sufficient, including experience in using an SAP ERP system, CRM/SRM systems, data warehouse, e-procurement systems and Microsoft office software”
[17] The applicant undertook the following projects in addition to his responsibilities in the Asset Buyer role and the Supply Manger role: 4
- Provide whole of life (WOL) P&E costing schedules to Base Services (Defence) Bid Team;
- Worked in Nauru to establish critical service agreements for immigration contract;
- Worked in Christchurch New Zealand to support Fleet Manager and ‘Enable’ contract;
- Manage & deliver ‘Sale & Leaseback’ of P&E assets program;
- Worked in Manus Island to support the integration of P&E in the new immigration contract;
- Worked in Sydney to assess the viability of IT Procurement being added to the P&E service catalogue;
- Base Services Contract (Defence) – hiring and management of additional resources to deliver 3,500 P&E items;
- Manage the migration of P&E data from the existing operating version to an upgraded version;
- Acquisition Program – Defence Firefighting and Refueller Appliances.
The restructure of P&E
[18] Mr Reuben Bird, General Manager of P&E, stated that in mid-2015, a strategic decision was made to move P&E away from a transaction/processing group to an advisory group. One of the consequences of this transition was that the supply function of P&E was restructured into three different roles that would be managed within the business as follows:
Demand – managed by P&E
Supply – managed within the separate business groups of Procurement, Infosys and Finance & Administration
Strategic Advice – managed by P&E 5
Category Specialist Officer
[19] Many of the supply functions previously performed by the applicant were to be allocated to the new position of Category Specialist, which was to be based in Sydney, reporting to the Procurement Portfolio Manager.
[20] The applicant contends that during his discussions with management about the restructure he was not advised that the Category Specialist position was to be based in Sydney and further, that this position would be more appropriately based in Adelaide.
[21] Mr John Browne, General Manager of Category Management stated that the Category Specialist role was strategic in nature and the role was based in Sydney to create a degree of separation from the transactional activities conducted in Adelaide.
[22] The respondent was entitled to locate the position where it viewed it would be most appropriate. Notwithstanding that the applicant holds a different view as to the location of the position, I am satisfied that the respondent took the decision based on operational considerations and it was not part of a strategy to deny employment to the applicant.
[23] It is apparent that, in the initial discussions about the Category Specialist position, it was not made clear to the applicant that the position was to be based in Sydney. This was unfortunate. Nonetheless, the applicant acknowledges that he was unable to move interstate and accordingly this was not a suitable position for redeployment.
The Defence role
[24] Mr David Temby, the National Estate Appraisal and Projects Manager for the respondent, stated that the applicant did not have the necessary experience or qualifications for this position. The person who was selected for this position has qualifications in civil engineering and experience in Project Management. The applicant accepted that he did not have the necessary qualifications for this role 6 and accordingly it was not a viable option for redeployment.
Asset Engineer
[25] Under the P&E restructure, the Demand and Strategic Advice functions were to be performed by the newly created position of Asset Engineer. It is agreed that some of the Supply Manager functions would form part of the Asset Engineer position but, according to Mr Bird, this latter position required more technical skills and had a different focus. 7
[26] Mr Bird gave the following evidence on the Asset Engineer role and the applicant’s suitability:
- The focus of the position is to create a model for the lifecycle of a piece of equipment, which requires assessment of maintenance, risk assessment within the business and replacement strategies. The Asset Engineer also creates a “feedback loop” which will show whether the model is functioning as intended with reference to the WOL maintenance options and replacement strategy; 8
- The applicant undertook WOL costing in the Supply Manager and Asset Buyer positions but did not have experience in the development of the “feedback loop”;
- The applicant did not have the required technical expertise, particularly in understanding the risks to business, how a piece of equipment performs over its lifecycle and how the feedback loop fits into the development of the strategy.
- There were two shortlisted candidates for the Asset Engineer role. One of the candidates has substantial experience in cost modelling, putting together the elements of an asset lifecycle cost, estimating bids and tender engagement. The second candidate has over 20 years’ experience in asset management, asset installation and project management of fixed and mobile assets. 9
[27] Mr Bird developed a position description for the Asset Engineer position and completed a skills matrix to assess the applicant’s suitability for the role against a potential internal candidate. 10 He stated that the applicant scored 110 against 174 for the potential internal candidate. Mr Bird concluded that that retraining the applicant was not viable in view of the extent of the gap in skills and experience.
[28] He stated that he had obtained information on the previous positions held by the applicant 11 and that he had some personal knowledge of the applicant’s abilities from having previously worked in P&E in the Business Engagement role from November 2014. He considered that he had sufficient knowledge to undertake a valid assessment of the applicant’s suitability for the role of Asset Engineer.
[29] The applicant contends that he could have fulfilled this role and that he performed most of the functions assigned to the Asset Engineer in his previous position of Asset Buyer and in the Supply Manager position. He considers that there were only limited areas within the Asset Engineer position that he had not previously undertaken and that he could learn these aspects with little difficulty.
[30] The applicant challenges Mr Bird’s evidence on the basis that he:
- Had limited knowledge of the work the applicant performed;
- Would not have obtained knowledge of the applicant’s skills and abilities from the time he spent in P&E because it was not a close working relationship;
- Had not spoken with Mr Bourke who was well placed to provide information on the applicant’s experience and skills; and
- Did not have access to the applicant’s current curriculum vitae (CV).
[31] The applicant also submitted that he had no opportunity to apply for the Asset Engineer position - the position description for the role was not made available and Mr Bird told him at a meeting on 13 November 2015 that he did not have the necessary skill set. These matters are generally agreed by Mr Bird, although he stated that he had expected that the applicant would have been provided with a copy of the Asset Engineer position description. 12
[32] The position description for the Asset Engineer 13 sets out the purpose of the position as follows:
“ To ensure that the business requirements are optimised in the request to procurement
- To advise the business on asset management strategic options and developing WOL cost estimates.
- To provide business visibility and intelligence on asset utilisation.
- To provide business visibility and intelligence on forward asset demand.
- To advise the category management team on asset related issues, particularly the authorisation of suppliers
- To ensure the wider business interests are reflected in AM strategies”
[33] The essential requirements of the incumbent are:
“ Deep knowledge of asset management principles and practices
- Deep knowledge of asset maintenance strategies
- Deep knowledge of asset WOL costing principles and practices
- Strong commercial acumen.
- Strong communication, analytical and problem solving skills
- Leadership and teamwork, listening and influencing ability with key stakeholders in a multisite and industry environment.
- Administratively self-sufficient, including experience in using an SAP ERP system, CRM/SRM systems, data warehouse and Microsoft office software.”
The Business Engagement role
[34] This role was subsequently withdrawn by the respondent for budgetary reasons. Ms Clark correctly acknowledged that this position remained a ‘live’ issue in these proceedings, as it was potentially available for the applicant to fill at the time of dismissal.
[35] The Business Engagement role was at a higher salary band than the Supply Manager position. The applicant disputes that the position was at a level higher in relation to the business engagement activities than the work and projects he had undertaken. This position was based in P&E and was previously held by Mr Bird, who holds a degree in Operations Management and Logistics and has experience as an Operations Manager.
[36] Mr Bird described the role as being responsible for the delivery of projects requiring the integration of the different functional areas of P&E. He stated that the role requires an understanding of project management principles, estimating resource requirements and managing resources and budgets. Experience and background in reporting and analytics were required, as well as technical aptitude and experience in contract and business level reporting.
[37] Mr Bird undertook a skills matrix assessment of the applicant against a range of candidates for the position. The applicant scored 141 whereas the candidates shortlisted for selection each scored in excess of 200.
[38] The applicant maintained his general complaint that Mr Bird made a decision as to his suitability for the role without a detailed knowledge of the work he had undertaken or access to his CV. The applicant referred to his engagement with senior management on the various projects he undertook and who relied on him for strategic advice, as well as his experience at operational and business service levels throughout his employment. He submitted that he could have comfortably transitioned into the Business Engagement role “with some support”. 14
[39] In response to questions on the type of support he would need, the applicant referred to the financial responsibilities of the Business Engagement role to “Manage and coordinate resource budgets, forecasts for all projects with stakeholders”. 15 He stated that he may need some technical support and training in relation to managing resources as he had no experience in “who can be assigned to do what within the group” to meet this requirement.16 He also stated that he may require some technical support to undertake the reporting requirements of the position due to his unfamiliarity with the reporting system.
[40] The applicant maintained that he would not require any external courses to fulfil the role; he was experienced in operations; and he referred to various projects that he had been assigned by Mr Bourke. 17
[41] The Business Engagement role reports to the General Manager Plant and Equipment, the same report as the Supply Manager position. An overview of the role states that it is responsible for business engagement across P&E advisory services and the management of assets in Australia and New Zealand. The role will develop an “engagement framework” to be applied within P&E, lead tenders, transitions and one-off projects; ensure assets are managed appropriately; and undertake performance reporting.
[42] The skills and experience required to perform the role are generally as per the Supply Manager role, other than the following two primary attributes:
Business Engagement Role | Supply Manager Position |
Knowledge and experience in external and internal business engagement. | Knowledge and experience in asset sourcing with specific emphasis on asset categories applicable to Transfield Services business. |
Knowledge and experience of P&E service functions deliverables. | Knowledge and experience of procurement principles and practices and supplier management |
Consideration
[43] The criticisms made by the applicant of Mr Bird’s assessment of his abilities using the skills matrix, have some weight in my view. Mr Bird did not have the applicant’s CV and had not spoken to his previous Manager. The applicant did not have a copy of the Business Engagement and Asset Engineer position descriptions so he did not have an opportunity to address the specific responsibilities of the roles. Consequently, the applicant was prejudiced against the other candidates for the Business Engagement role as ranked in the skills matrix. More generally, I find that Mr Bird did not have a sufficiently comprehensive understanding of the applicant’s skills and experience.
[44] The question for the Commission is whether a reasonable period of training would have enabled the applicant to perform the Asset Engineer and Business Engagement roles.
[45] In Ulan Coal Mines Ltd v Honeysett 18a Full Bench of Fair Work Australia considered the genuine redundancy provisions of the Act and made the following observations about the operation of s.389(2) of the Act:
“Thirdly, the question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. … The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.”
“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 with a reasonable period of retraining.”
[46] An assessment of the applicant’s suitability for the Asset Engineer and Business Engagement roles presents certain difficulties because it involves the consideration of positions at a managerial and/or advisory level, where factors such as responsibility, experience and technical skills are measured in degrees. The breadth and complexity of Broadspectrum’s operations means that this assessment must be undertaken within a multi-tiered and interrelating managerial structure.
Findings on the Asset Engineer role
[47] The Asset Engineer position has as its primary role the development of strategies around asset management and maintenance. This requires technical knowledge in relation to the performance of equipment which is gained through experience. The role extends beyond the development of whole of life costing to a more sophisticated specification for equipment which incorporates the assessment of performance of the equipment against the financial modelling and develops options for replacement. It requires knowledge and experience in relation to the performance of assets.
[48] I am satisfied that there are a number of aspects of the Asset Engineer role which the applicant previously undertook or could undertake with limited support. However, the provision of strategic advice on asset management was a key focus of the Asset Engineer role, whereas the applicant’s previous involvement in providing strategic advice pertained to the particular projects he was undertaking.
[49] I find that the gaps in the applicant’s experience relative to the Asset Engineer requirements could not be overcome with some limited retraining.
Findings on the Business Engagement role
[50] The Business Engagement role has broader organisational responsibilities and oversight in relation to business engagement, i.e. the position has responsibility to develop business engagement frameworks and ensure they are applied. The Supply Manager position engaged with business in relation to the transactions undertaken, and the applicant had some broader and higher level business engagement in the particular projects that he managed outside of his job description.
[51] When the applicant acknowledged that he would need some training and support in relation to the financial responsibilities and reporting requirements he did not, in my view, appreciate that these were key responsibilities of the Business Engagement role.
[52] Ms Clark submitted that the person appointed to the Business Engagement role required tertiary qualifications in management or substantial high level management experience, whereas the applicant had seven years of mid-level management experience and no formal qualifications. 19
[53] In my view this undersells the level of the applicant’s abilities and that much of his experience is in areas relevant to the Business Engagement role. However I accept that the status of the Business Engagement role within the managerial structure is a significant factor. As noted earlier, this role had an overarching responsibility for other groups and/or functions in relation to business engagement, and this level of responsibility is not a feature of the applicant’s previous roles. For example, the financial responsibilities of the Supply Manager position are directed to achieving savings and developing an annual business plan and strategy for asset buying across all asset categories; as compared to the financial responsibility of the Business Engagement role to “manage and coordinate resource budgets, forecasts for all projects with stakeholders”.
[54] In addition, a period of retraining would not enable the applicant to fulfil the requirement for experience at the higher managerial level.
Conclusion
[55] The four positions jointly identified by the parties to be in issue as options for the redeployment of the applicant were narrowed to the two positions of Asset Engineer and the Business Engagement role. I am satisfied that the applicant was kept informed of the restructure and over a period of some months before his dismissal. I have some doubt whether the approach of the respondent in relation to its consideration of the applicant’s suitability for these two positions accorded him procedural fairness.
[56] In my view, the requirement to have “relevant experience” assumes more importance when considering positions at the level of the Asset Engineer and Business Engagement roles. Where lower level positions are involved, experience relevant to the ‘available’ position may be more readily acquired through performance of that position.
[57] For the reasons set out above I am satisfied that the circumstances contemplated by s.389(2) of the Act are not in play and that the dismissal was a case of genuine redundancy. The application for an unfair dismissal remedy must therefore be dismissed. An order to this effect is attached to this decision.
DEPUTY PRESIDENT
Appearances:
Mr A Jewell in person
Ms K Clark, of counsel, with permission for the Respondent
Determinative Conference details:
2016.
Adelaide:
24 June.
1 Section 396(d) of the Act.
2 On application by the applicant.
3 Ex R1 Respondent’s Book of Documents (BOD) at p57.
4 Statement of the applicant, BOD pp303-4
5 Witness Statement of Reuben Bird, BOD at p31.
6 PN470-1.
7 Witness Statement of Reuben Bird, BOD at pp32-3.
8 PN328.
9 PN257.
10 The position of Asset Engineer had not been advertised at this time.
11 PN297.
12 PN292-4; 309.
13 BOD at p69.
14 Applicant’s response to the Witness Statement of Reuben Bird, BOD at p322.
15 Position description for the Business Engagement role, BOD at pp121, 122.
16 PN479.
17 PN476-82; Applicant’s experience and capability document BOD 314.
18 [2010] FWAFB 7578 at [28], [34]; (2010) 199 IR 363, Giudice J, Hamberger SDP, Cambridge C.
19 PN569-572.
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