Bill Lu v IBM Australia Ltd T/A IBM

[2014] FWC 1552

[2014] FWC 1552

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bill Lu
v
IBM Australia Ltd T/A IBM
(U2013/11616)

DEPUTY PRESIDENT MCCARTHY PERTH, 6 MARCH 2014

Application for relief from unfair dismissal.

[1] Mr Bill Lu (the Applicant) lodged an application for unfair dismissal remedy (the application) asserting that he was unfairly dismissed from employment with IBM Australia Limited (IBM) on 28 June 2013. The Applicant was employed by IBM and worked in the position of an Advisory Software Engineer at the IBM Development Laboratory in West Perth. He says that he was involved in a project team which was responsible for the design, development, manufacture and maintenance of a product called Tivoli Asset Discovery for z/OS (TADz). There were two sections to the TADz team. One was known as an L3 team and the other was the Development team.

[2] IBM objected to the application on two grounds. Firstly, IBM asserted that the termination of the Applicant’s employment was a genuine redundancy. The second ground was that the Applicant was not a person protected from unfair dismissal remedy as he was not covered by a modern award, an enterprise agreement did not apply to him in relation to his employment, and he earned above the high income threshold. It is not disputed that at the time of the dismissal an enterprise agreement did not apply to the Applicant and that he earned above the high income threshold. It is also not disputed that the Applicant had been employed by IBM for at least the minimum employment period.

[3] There are thus two initial matters that are disputed, firstly whether there was a genuine redundancy and secondly whether the Applicant was covered by an award. The Award in question is the Professional Employees Award 2010. The facts relevant to these two issues were disputed and therefore I conducted the proceedings by way of a hearing, as it appeared to me, that it was the most effective and efficient way to resolve the matters in dispute.

The Issues

[4] I will deal with the question of whether the dismissal of the Applicant’s employment was a genuine redundancy first. Essentially, and in summary, the Applicant claims that the position he held was still required to be performed by somebody, IBM did not consult him about the redundancy and that it would have been reasonable for him to be redeployed within IBM

The Evidence Relating to Genuine Redundancy

[5] Mr Place gave evidence. Mr Place was the Senior Development Manager. The Applicant reported directly to a Mr Kok, who in turn reported to Mr Place.

[6] Mr Place explained the relevant structure of IBM. There are a number of business divisions one of which is the Software Development Group (SWG). The SWG comprises a number of teams one of which was the TADz team. It seems Mr Kok had responsibility for the TADz team and there were two sub teams, one of which the Applicant had responsibility for. There were nine employees within the TADz team. There was one employee that reported to the Applicant.

[7] IBM decided to streamline and restructure the SWG division due to the then current and expected business needs. The restructure involved eliminating some roles and reassigning duties and responsibilities by combining and absorbing various roles. During May 2013 discussions were held regarding the restructure and it was decided that the Applicant’s role would be abolished and his duties and responsibilities spread amongst the other members of the TADz team. The Applicant had a responsibility of what was termed a Level 3 team lead. Mr Place evidenced that:

“There is no level 3 lead any more. The work has just been absorbed and the lead responsibility now falls to the manager of that TADz team, which is Travis Kok. There is no need on a team that size to have a dedicated level 3 team lead and that role has not been replaced. It has just disappeared.” 1

and further

“Mr Kok is performing that role. It’s a dual role as development manager and level 3 manager, which is quite common at IBM.” 2

...

“The role no longer exists in that team. Mr Lu spent most of his time administering and organising the level 3 members, and it was decided that that role wasn’t required because the team was getting smaller and that was the one role that could be absorbed easily by the existing team.” 3

[8] Mr Place and Mr Kok met with the Applicant on 27 May 2013 and informed him that his position was no longer required due to the restructuring. The Applicant was advised to seek assistance from a career transitioning service and to take advantage of IBM’s Employment Assistance Program. He was also advised to discuss any matters with a relevant IBM representative.

[9] The approach to redeployment opportunities within IBM when a position is made redundant is that at the initial meeting or interview the employee concerned is advised to commence looking for opportunities within IBM immediately. IBM has an intranet-based recruitment tool known as Global Opportunity Marketplace (GOM). GOM involves setting up a Candidate Profile and open positions are made available for expressions of interest or to apply for. The Applicant was advised to set up his Candidate Profile immediately and that if he needed any help he should contact the Employee Service Centre. The Applicant evidenced that he did not set up his Candidate profile until the last week of June. He stated that he had some difficulty setting it up, but there is no evidence that he did, or did not, seek the help suggested.

[10] The role of the Managers, (in this case Mr Kok,)“was to help their staff where they can. The distinction is that the manager is not actually responsible for looking for roles, but using the network and asking questions, and providing any opportunities that they come across”. 4 Mr Place evidenced that Mr Kok attempted to fulfil his obligation to help persons made redundant, including the Applicant. “He [Mr Kok] asked what roles were available and passed on information from other colleagues. Mr Bob McCormick [another employee who had been made redundant] found a role that might be suitable and passed it on to [Mr Kok], who fed it through to [the Applicant]. So there was some networking going on to try and find a role.”5 Whilst Mr Kok did not give any direct evidence I accept from Mr Place’s evidence and the supporting documentation that this occurred.

[11] Mr Place evidenced that the Applicant did not engage with IBM representatives after the meeting on 27 May 2013 and did not attend work from that time, although he did go into the office on two occasions. Mr Place stated that there were a number of initiatives taken and efforts made to engage the Applicant in a consultative process but he formed the view that the Applicant did not seem to wish to participate.

[12] The restructuring continued in June and July 2013 with eight other persons being notified of potential redundancy and presumably all were dismissed, other than for two employees who were redeployed to Quality Assurance roles.

[13] Consideration was given to redeploying the Applicant to three positions that were available. Those positions were (a) Wheatstone Test Manager; (b) Wheatstone Quality Assurance; and (c) Inpex Quality Assurance. Indeed the Applicant applied for those positions but was unsuccessful. Mr Place gave extensive reasons for the unsuitability of the Applicant for the positions he applied for. Two other employees whose positions had been made redundant were considered to be more suitable for either of the Quality Assurance positions and the Applicant was not considered suitable for the Wheatstone Test Manager Position. The grounds for IBM making those decisions and not redeploying the Applicant to them appeared to me to be rational and reasonable.

Consideration and Findings Regarding Genuine Redundancy

[14] It is patently clear that IBM no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements. The operational requirements involved a restructuring of the division that the Applicant was employed in. The team leader position within was substantially absorbed into the role that the Divisional Manager performed.

[15] IBM consulted the Applicant about the redundancy of his position on 27 May 2013 and informed him that if he did not secure an on-going role within IBM by 28 June 2013 that he would be given notice of termination.

[16] The Applicant was advised about how best to source and identify other positions within IBM that he might be able to be redeployed to. This process involved registering his Candidate Profile on IBM’s intranet GOM and by his Manager discussing with him and on a more informal and personal networking basis providing him with support. Unfortunately the Applicant did not get his Candidate Profile entered for between two to four weeks (depending on the version of the Applicant’s evidence). The Applicant also did not appear to want to engage with his Manager, Mr Kok, regarding redeployment.

[17] I find that IBM did consult the Applicant regarding the redundancy of his position. Thus, even if an Award did cover the Applicant’s employment IBM discharged the consultation requirements under that Award. IBM also considered redeployment of the Applicant including to three positions he expressed interest in, or applied for, but he was either not suitable or other employees whose positions were made redundant were considered more suitable for redeployment into those positions.

[18] I therefore find that even presuming that the Applicant was protected from unfair dismissal that he was not unfairly dismissed because his dismissal was a case of genuine redundancy.

DEPUTY PRESIDENT

Appearances:

B Lu on his own behalf.

D Mahendra of Counsel for the Respondent.

Hearing details:

2014.

Perth:

February 20.

 1   Transcript PN299.

 2   Ibid PN304.

 3   Ibid PN308.

 4   Ibid PN374.

 5   Ibid PN375.

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