Bruce Wardley v Australian Red Cross
[2016] FWC 8198
•22 NOVEMBER 2016
| [2016] FWC 8198 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Bruce Wardley
v
Australian Red Cross
(U2016/9332)
VICE PRESIDENT HATCHER | SYDNEY, 22 NOVEMBER 2016 |
Application for relief from unfair dismissal.
Introduction
[1] Mr Bruce Wardley has applied for an unfair dismissal remedy under s.394(1) of the Fair Work Act 2009 (FW Act) in respect of the termination of his employment as “Media and Communications Adviser, Income Generation” for the Australian Red Cross Society (Red Cross). He was dismissed effective from 8 July 2016 on the ground of redundancy. He was paid 5 weeks’ pay in lieu of notice in accordance with s.117 of the FW Act, 13 weeks’ severance pay in accordance with s.119 of the FW Act, and his accrued leave entitlements. Mr Wardley contends that his dismissal was unfair because he was not genuinely redundant, in that his existing position was replaced with a new position (New Role) which was in substance the same as the existing position and to which he was not appointed.
[2] Section 396 of the FWAct requires that four specified matters must be decided before the merits of Mr Wardely’s application may be considered. There was no contest between the parties about the first three of those matters. I find that:
(a) Mr Wardley’s application was made within the period required by s.394(2);
(b) Mr Wardley was a person protected from unfair dismissal; and
(c) the Red Cross was not a “small business employer” as defined in s.23 of the FW Act, so that the Small Business Fair Dismissal Code was inapplicable.
[3] The fourth matter, namely whether the dismissal was a case of genuine redundancy, was the subject of dispute. The Red Cross contended that Mr Wardley’s dismissal was a case of genuine redundancy, and Mr Wardley’s case was that it was not. A dismissal that was a case of genuine redundancy cannot be found to be an unfair dismissal, because s.385 provides:
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.
[4] Accordingly it is necessary for me to determine the genuine redundancy issue at the outset.
Facts
[5] Evidence was given by Mr Wardley and, on behalf of the Red Cross, by Matt Fisher, the Senior Media & Communications Manager (Engagement and Supporters) in the organisation, and Ms Leigh Skene, the organisation’s Human Resources Manager. The basic facts were not in dispute, and there was no substantive challenge to the credit of any witness. The main issue in contest was the proper characterisation of the duties of the New Role which replaced Mr Wardley’s redundant position.
[6] Mr Wardley has an extensive background in the media. He began his career as a journalist and television presenter in regional Victoria in 1979, and then moved to the ABC in 1989 where he worked as a producer, reporter and Chief-of-Staff. He left the ABC in 2000 to move into the corporate sector in various roles with Australian Business Intelligence, the Central Gippsland Institute of TAFE, the University of Melbourne and the South Australian Forestry Corporation. He completed a Master of Business Administration degree at Swinburne University in 2004.
[7] Mr Wardley commenced employment with the Red Cross on 22 September 2008 as Manager - Communications and Marketing in Queensland. He moved into the role he held at the time of his dismissal in December 2012. There was no dispute that he was competent and conscientious in the performance of his duties. Some concerns were expressed in April 2016 about Mr Wardley’s attendance record and his behaviour at work, but there was no evidence that these concerns formed any part of the reason for Mr Wardley’s dismissal. Accordingly it is not necessary for me to give them any further consideration.
[8] In about April 2016 the Red Cross’ Chief Executive Officer and Board directed Ms Jennifer Gibb, the National Director, Public Engagement Reputation and Funding, to make budget savings which necessitated an organisational restructure affecting the Marketing, Fundraising, Retail and Communications teams. Mr Wardley’s position resided in the Communications team (also described in the evidence as the Media and Communications team). Ms Gibb designed the restructure with the assistance of Ms Skene. It was determined that 31 positions would become redundant under the new structure, and a smaller number of new roles would be created. Mr Wardley’s position was one of the 31 redundant positions.
[9] A general presentation concerning the organisational restructure was presented to the employees in the four teams on 15 June 2016. On 16 June 2016 there were individual meetings with each of the employees whose positions had been declared redundant. These included a meeting between Ms Gibb and Ms Louise Shephard, WH&S Consultant, and Mr Wardley. At the meeting Mr Wardley was provided with a formal letter advising of his redundancy. The letter included the following statements:
“I am writing to confirm that the MF&C & Retail Department is changing some key ways of working to strengthen the team’s focus to 2020 and reduce costs of Red Cross to a more sustainable level and, as a consequence, your role of Media & Communications Advisor (Income Generation) has been declared redundant effective 8 July 2016.
...
Roles across the Media & Communications group are being standardised so that Media & Communications Advisors can work across more subject areas and all platforms. This will create greater efficiencies that allow us to reduce roles in line with our budget reductions.
The Media & Communications Advisor (Income Generation) role is being reduced from a 1.0 FTE role to 0.6 FTE (three days a week), and has increased from a Job Grade 5 to a 6.
You are invited to apply for any positions vacant in the new MF&C & Retail structure should you wish.
...
At our meeting today, we discussed with you the changes in MF&C & Retail. The roles and position descriptions for relevant vacancies in the new structure will be available of PageUp by 16th June 2016. You are welcome to consider these roles, and the extent to which you assess they may be a suitable match for your skills, experience and career objectives.
There may also be redeployment opportunities in Red Cross for you in other roles, outside MF&C & Retail, which may suit your skills, experience and career objectives, if you satisfy the requirements of redeployment to the position (including the mandatory selection criteria). If there are current vacancies in which you may wish to express an interest, please contact your Human Resources representative.
...”
[10] Mr Wardley was also provided at the meeting with an estimate of his redundancy pay, information about the Employee Assistance Program and outplacement services, and a copy of the Red Cross’ redundancy policy.
[11] Mr Fisher commenced employment in his position on 14 June 2016. Mr Wardley was one of six persons who reported to him in the Communications team. He attended the presentation on 15 June 2016, and this was when he first became aware that two of the positions which reported to him, including Mr Wardley’s, were becoming redundant. He gave evidence (in his witness statement) that he was given a general direction by Ms Gibb about the conduct of media operations as follows:
“There was a direction from Ms Gibb as the Head of Marketing, Fundraising and Communications to use all media forms (including traditional print press, digital websites, key bloggers and social channels such as Facebook, Instagram, Twitter and LinkedIn), whenever the Respondent had a good news story, whether it was Commercial, Retail or Fundraising. We were advised this would be the 'standard' marketing campaign. This approach meant an increased focus on digital media whilst maintaining a focus on, and relationships with, traditional forms of media. The reasons for this shift included the changing landscape and the corresponding desire to increase direct engagement with the public in the digital space rather than rely on messaging through third party media. The Respondent needed to stay relevant to its existing audience who were increasingly using digital and social media, whilst reaching a new, younger demographic who were social media natives.”
[12] The position description for the New Role was not dissimilar in a number of ways to the position description, issued on 13 May 2013, for Mr Wardley’s now redundant role. However I consider that, unlike the 2013 position description, the position description for the New Role did emphasise the role’s responsibility for “Developing and driving a communications strategy aimed at maximizing income delivery from fundraising retail and commercial activities” and “Developing evaluation methods and measurement tools to determine effectiveness of strategies and to drive innovation and best practice”. In summary the new position description more explicitly linked the assessment of the success of the communications strategy with improved income generation. However it cannot be said that the altered emphasis is glaringly obvious when one reads the two position descriptions side by side.
[13] Mr Fisher was tasked with leading the appointment process for the New Role, which initially involved only consideration of internal applicants. He undertook that task together with Ms Shephard and Ms Kerren Morris, the Income Growth & Innovations Manager, Fundraising. He gave evidence in his witness statement concerning the qualities he required for the New Role having regard to the direction he had been given by Ms Gibb:
“To fit with the new direction of the Respondent's marketing campaigns, we needed to ensure that we offered the New Role to a candidate who:
a) viewed campaigns strategically and holistically and considered all media forums;
b) displayed a thorough working understanding of the changing digital media landscape;
c) reviewed past campaigns to determine what did and didn't work; and
d) ensured data analytics were used to determine the most effective media forums for future campaigns.”
[14] Mr Wardley applied for the New Role together with another employee. He said that he was prepared to work on a part-time basis, as the New Role required, since this suited him at his stage of life. Mr Wardley supplied a copy of his Curriculum Vitae to support his application, and attended an interview on 29 June 2016. As part of the interview process, Mr Wardley was asked to undertake a social media exercise involving the preparation of a Facebook post and a tweet based on an existing copy and image.
[15] Prior to the interview, Mr Fisher had received some mixed reports concerning Mr Wardley’s past performance from other employees including Ms Gibb. However he said that he did not have regard to these reports during the appointment process and, in effect, took Mr Wardley at face value during the interview process. I accept that evidence.
[16] Mr Fisher’s evidence was that, at the interview, Mr Wardley overemphasised the use of traditional media, failed to demonstrate significant experience in the use of social media or the need to be agile and innovative in its use, and displayed a lack of any skill or experience in the measurement of the success of a digital media campaign. He was also concerned that Mr Wardley displayed a stubborn attitude and a resistance to change that would make productive collaboration with him in the workplace difficult. He assessed Mr Wardley’s performance in the social media exercise as “adequate, if unspectacular”. The conclusion of Mr Fisher, Ms Shephard and Ms Morris was that neither Mr Wardley nor the other internal applicant was suitable, and that an external recruitment process should be undertaken. Eventually an external applicant was appointed to the New Role.
[17] Mr Wardley’s assessment was that he had performed well in the interview process, and that he had been praised at the end of it by Mr Fisher. However I consider that it is clear, having regard to the evidence which Mr Wardley gave before me, that he refused to accept that the New Role might involve any duties or responsibilities different to those of his previous position. His position in the determinative conference was that there was no change at all in the position apart from the budget-driven change from full-time to part-time employment, that any differences in the position descriptions were merely a matter of semantics, and that he had always utilised social media and measured its outcomes to an adequate degree. That causes me to place significant weight and credence upon Mr Fisher’s assessment of Mr Wardley’s performance at the interview.
[18] There is no evidence that the Red Cross gave any consideration prior to Mr Wardley’s dismissal as to whether he could, with the benefit of re-training, have simply been redeployed into the New Role rather than having to be successful in a competitive recruitment process. However Mr Fisher gave evidence about this at the determinative hearing. His assessment was that re-training Mr Wardley for the New Role would not have been a reasonable proposition because, first, the training required for him to be able to use data analytics would have been extensive, second, the strategic use of social media needed to be acquired through experience which he did not have, and third, his negative attitude towards the changed demands of the New Role meant that re-training would be likely to be unsuccessful in adapting him for the New Role. He was also concerned that Mr Wardley’s negative attitude towards change would have caused conflict between them if he had been appointed to the New Role.
[19] Mr Wardley also applied for two other positions, those of Bequest Acquisition Executive and Retail and Marketing Communications Manager. There was no suggestion in the evidence that Mr Wardley had the relevant skills and experience for either position. His applications were unsuccessful. As a result, his termination on the ground of redundancy proceeded on 8 July 2016.
Consideration
[20] Section 389 of the FW Act defines what is meant by a case of genuine redundancy as follows:
389 Meaning of genuine redundancy
(1) A person's dismissal was a case of genuine redundancy if:
(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer's enterprise; or
(b) the enterprise of an associated entity of the employer.
[21] In relation to s.389(1)(b), neither party contended that Mr Wardley’s employment had been covered by any modern award, so the question of compliance with applicable consultation requirements in a modern award does not arise. Therefore it is necessary only to determine whether the elements of the definition of s.389(1)(a) and s.389(2) applied in this case.
[22] In relation to s.389(1)(a), I am satisfied that the Red Cross no longer required Mr Wardley’s job to be performed by anyone because of changes in the operational requirements of the enterprise. There was no factual dispute that Mr Wardley’s position had been abolished because of an organisational restructure driven by the need to reduce operating expenditure. The establishment of the New Role does not alter this position. Even if the duties of the New Role had been the same as Mr Wardley’s position, the abolition of his full-time role and its replacement by a three days per week part-time role would be sufficient to demonstrate that the Red Cross no longer wanted the job Mr Wardley previously had to be performed by anyone. The altered duties of the New Role, which attracted a higher pay rate, are further demonstrative of the position. That a number of the duties of the New Role were the same as for Mr Wardley’s previous position does not detract from the genuineness of the redundancy, since it is well established that the fact that the duties of a particular job or position which has been abolished have been re-allocated to another position or positions as part of an employer’s restructure does not alter the fact that the employer no longer requires that position or job to be performed by anyone. 1
[23] The principles concerning the interpretation and application of s.389(2) have been stated in two Full Bench decisions, Ulan Coal Mines Ltd v Honeysett 2 and Technical and Further Education Commission t/a TAFE NSW v Pykett3. Those principles were summarised in Huang v Forgacs Engineering Pty Limited4 as follows:
“(1) The exclusion in s.389(2) poses a hypothetical question which must be answered by reference to all of the relevant circumstances. 5
(2) The question is concerned with circumstances which pertained at the time of the dismissal. 6
(3) In order to conclude that it would have been reasonable to redeploy the dismissed person, the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. 7
(4) A number of matters are capable of being relevant in answering the question, including 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 and the remuneration which it offered. 8”
[24] It was not contended by Mr Wardley that it would have been reasonable for the Red Cross to redeploy him to any position other than the New Role. He did not contradict the Red Cross’s position that he did not have the skills or experience to undertake the positions of Bequest Acquisition Executive and Retail and Marketing Communications Manager which he applied for. Accordingly it is only necessary to consider whether it would have been reasonable for the Red Cross to redeploy Mr Wardley into the New Role.
[25] Where positions are made redundant because of an organisational restructure, the fact that an affected employee is given the opportunity to apply in a competitive selection process for new roles that are created or for any existing roles which are vacant and is unsuccessful does not necessarily mean that it would not have been reasonable for the employee to be redeployed into any of those roles. It is not necessary for an applicant for an unfair dismissal remedy to demonstrate, for the purpose of s.389(2), that he or she was the best possible person to fill an alternative position in order to satisfy the Commission that redeployment to that position would have been reasonable. 9 Nor does the fact that the applicant may not have possessed all the skills necessary for an alternative position necessarily rule out the proposition that redeployment to that position would have been reasonable, since consideration needs to take into account the possibility that a degree of re-training for an alternative position may have made redeployment reasonable. In that consideration the cost and extent of any re-training required are relevant matters.10
[26] Mr Wardley was prepared to work the part-time hours required for the New Role. He also clearly possessed skills and experience that were relevant to a significant degree to the New Role. Insofar as he lacked skills in data analytics, I am not persuaded that, at least in theory, he could not have been trained in those skills within reasonable boundaries of cost and time. There was certainly no evidence that the cost of any such training would have been greater that the cost of retrenching him. However the real difficulty in redeploying Mr Wardley to the New Role would have lain in his attitude to that role. As he amply displayed in giving evidence before me, he did not consider that the duties of the New Role were any different to his existing role, he did not accept that there was any requirement for a greater focus on the use of social media and the analytical assessment of outcomes in terms of income generation, and he simply did not recognise that he would need to change anything in the way he had performed his work in the past. I accept Mr Fisher’s assessment that Mr Wardley’s fixed position about the performance of the Red Cross’ media and communications functions and his resistance to any change meant that any re-training of him would not have been effective and that his appointment to the New Role would likely have caused unproductive conflict about work methods and objectives. For these reasons, I find that Mr Wardley’s redeployment to the New Role would not have been reasonable notwithstanding the level of his experience in the media and the degree of competence he had demonstrated in the past.
Conclusion
[27] Mr Wardley’s dismissal was a case of genuine redundancy as defined in s.389. It is therefore not possible for me to find, by reason of s.385, that his dismissal was unfair. Accordingly his application for an unfair dismissal remedy must be dismissed.
VICE PRESIDENT
Appearances:
B. Wardley on his own behalf.
J. Bicknell solicitor for the Australian Red Cross.
Hearing details:
2016.
Sydney:
15 November.
1 Jones v Department of Energy and Minerals (1995) 60 IR 304 at [308]
2 [2010] FWAFB 7578, 199 IR 363
3 [2014] FWCFB 714, 240 IR 130
4 [2014] FWC 2264 at [34]
5 Ulan Coal Mines Ltd v Honeysett [2010] FWAFB 7578, 199 IR 363 at [26]
6 Ibid at [28]; Technical and Further Education Commission t/a TAFE NSW v Pykett [2014] FWCFB 714, 240 IR 130
at [24]
7 Pykett at [36]
8 Ulan at [28]
9 Huang v Forgacs Engineering Pty Limited[2014] FWC 2264 at [37]
10 See Pettet and Ors v Mt Arthur Coal Pty Ltd[2015] FWC 2851 at [49]
Printed by authority of the Commonwealth Government Printer
<Price code C, PR587555>
0
5
0