Bryson Gilbert, Luke Bowen, Brad Mounter, Maxwell Panton, Wayne Moyer, Ben Taylor, Elizabeth Pearson, Daniel Gerstenmeier v Asciano Services Pty Ltd T/A Pacific National Bulk Rail

[2015] FWC 364

[2015] FWC 364

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bryson Gilbert, Luke Bowen, Brad Mounter, Maxwell Panton, Wayne Moyer, Ben Taylor, Elizabeth Pearson, Daniel Gerstenmeier
v
Asciano Services Pty Ltd T/A Pacific National Bulk Rail
(U2014/9796), (U2014/9797), (U2014/9798), (U2014/9799), (U2014/9800), (U2014/9801), (U2014/9802), (U2014/9803)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 22 JANUARY 2015

Application for relief from unfair dismissal; whether case of genuine redundancy.

[1] Mr Bryson Gilbert, Mr Luke Bowen, Mr Brad Mounter, Mr Maxwell Panton, Mr Wayne Moyer, Mr Ben Taylor, Ms Elizabeth Pearson, and Mr Daniel Gerstenmeier (the applicants) have each applied for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the FW Act). The respondent, Asciano Services Pty Ltd (trading as Pacific National Bulk Rail), contends that none of them could have been unfairly dismissed as in each case their dismissal was a case of genuine redundancy.

[2] This decision deals with the issue of whether the dismissal of the applicants was in each instance a case of genuine redundancy. Hearings held in Sydney on 1, 2, 3 and 12 December 2014. The applicants were represented by Mr K Pryor of the Australian Rail, Tram and Bus Industry Union (RTBU) and the respondent by Mr A Gotting, of counsel. The applicants all gave evidence on their own behalf. The following gave evidence on behalf of the respondent:

• Mr Anthony Halman (Special Projects Manager, reporting to National Operations Manager, Bulk Rail);



• Mr Robert Parton (National Operations Manager, Bulk Rail);



• Ms Joanna Romanowski (HR Business Partner);



• Mr Russell Thompson (formerly, Regional Manager, Bulk Rail South);



• Mr Travis Brown (Depot Manager, Werris Creek); and



• Ms Bridgette Byrne (Senior Human Resources Manager).

[3] Under s.385 of the FW Act, the Commission cannot be satisfied that a person has been unfairly dismissed if the dismissal was a case of genuine redundancy.

[4] The meaning of genuine redundancy is set out in s. 389 of the FW Act. That section is as follows:

‘(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.’

[5] In relation to s.389 (1) (b), the Pacific National Bulk Rail Enterprise Agreement 2013 (the enterprise agreement) applied to the employment of the applicants at the time of their dismissal. Clause 30 of the enterprise agreement includes the following:

‘Consultation and Change

Consultation

(a) The parties are committed to pursue all opportunities to adopt the world’s best practices through modern technology and continuous improvement to all aspects of Pacific National Bulk Rail operations.

(b) Levels of staffing, equipment and methods of operation may be varied from time to time by Pacific Bulk Rail to reflect the need for safe work practices, improved technology, and new types of machinery or systems, customer service needs or for any other reason.

(c) Pacific National Bulk Rail having made a definite decision that it intends to proceed with any significant change shall issue a notification, in writing, advising:

(i) The affected Employees, or their representatives and their Union;

(ii) The nature of the change;

(iii) The reason for it;

(iv) The timing of it; and

(v) Any other relevant information.

(d)

(i) Pacific National Bulk Rail shall allow the Employee, their representative and the Union, an opportunity to express their view or concerns. Pacific National Bulk Rail will allow Employees, their representative and their Union to actively participate in the consultative process. That is, allow for the reasonable release and payment of Employees to attend meetings and access to entitlements as provided for in this Agreement.

(ii) Pacific National Bulk Rail shall genuinely consult and consider any views or advice from the Employees, their representative and their Union in relation to the proposed change and provide written reasons addressing concerns raised by Employees and or Employee representatives.

(e) This consultative process must be completed within a period of fourteen (14) days from the date of notification by Pacific National Bulk Rail as set out in Clause 30 (c) above, subject to the provisions of Clause 30 (d) being complied with. Failure to comply with the provisions of Clause 30 (d) will delay and or extend the fourteen (14) day period accordingly.

(f)

(i) Should Pacific National Bulk Rail fail to provide the notification as required in Clause 30 (c) above Pacific National Bulk Rail shall not implement any of the proposed changes until such time that the proper notification of change has been provided and the consultation process set out in Clause 30 (d) has been complied with.

(ii) Further, where Pacific National Bulk Rail has failed to engage in any consultation what so ever with the affected Employees, their representative or their Union, may issue Pacific National Bulk Rail, within seven (7) days of the non compliance, with a notice of dispute, in writing, setting out the reasons for the dispute in the form set out in Schedule 1 of this Agreement. Upon receiving such notice of dispute Pacific National Bulk Rail will not implement the change and or cease the change should it have been already implemented.

(g) It is agreed between the Parties that after the above notification and consultation process has satisfactorily taken place, Pacific National Bulk Rail, may implement change after a further fourteen (14) days.

(h) Significant change

For the purposes of this clause and without limiting the generality thereof, significant change includes changes in the composition, operation or size of the workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of Employees to other work or locations and the restructuring of jobs....’

[6] In the circumstances of this case, there are three elements in determining whether the dismissals were a case of genuine redundancy. First, did the respondent no longer require the applicants’ jobs to be performed by anyone because of changes in the operational requirements of the respondent’s enterprise; secondly, did the respondent comply with its obligations in the enterprise agreement to consult about the reduction in the size of the workforce; and thirdly, would it have been reasonable in all the circumstances for the applicants to have been redeployed, either within the respondent’s business or within any associated entity of the respondent? The process for selecting which employee is to be made redundant is not a relevant consideration in determining whether a redundancy is ‘genuine’. 1

Did the respondent no longer require the applicants’ jobs to be performed because of changes in operational requirements?

[7] There was uncontested evidence that the respondent was advised in February and March 2014 of a reduction in the number of trains that would be required by two of its customers, (with effect from 1 July 2014). This reduction in work led to a reduction in the need for train crews and a greater focus on costs. The respondent also had reduced work for coal at its Hunter Valley Depot which affected (in turn) the work of its Werris Creek Depot. The respondent decided that operationally it required 53 fewer train crews operating from its Cootamundra, Moss Vale, Parkes, Werris Creek, and Narrabri Depots. Each of the applicants worked either at the Moss Vale, Werris Creek or Narrabri Depots.

[8] Mr Pryor conceded that the evidence presented by the respondent established that the respondent no longer required the applicants’ jobs to be performed by anyone because of changes in operational requirements. 2

[9] I am satisfied that the respondent no longer required each of the applicants to perform their jobs due to changes in its operational requirements. Thus the first element of establishing a case of genuine redundancy is made out.

Did the respondent comply with its obligations in the enterprise agreement to consult about the reduction in the size of the workforce?

[10] As previously noted, the respondent’s obligations in the enterprise agreement to consult about the reduction in the size of the workforce are to be found in Clause 30. In the context of the current case, Clause 30 of the enterprise agreement required the respondent, once it had made a definite decision to proceed with a reduction in the size of the workforce, to:

• notify the affected employees and the RTBU, in writing, advising them of the nature of the proposed reduction in the workforce, the reasons for the proposed reduction, the timing of the proposed reduction, and any other relevant information;



• allow the RTBU and the affected employees an opportunity to express their views or concerns about the workforce reduction, and to actively participate in the consultative process. That includes allowing for the reasonable release and payment of employees to attend meetings and access entitlements as provided for in the enterprise agreement;



• genuinely consult and consider any views or advice from the RTBU and affected employees in relation to the proposed workforce reduction and provide written reasons addressing concerns raised as part of that process.

[11] Mr Gotting submitted that the respondent gave the relevant notification to the applicants and the RTBU on a number of occasions. On 28 February 2014, the Services and Delivery Manager, Mr Anthony Jones, sent a memo, inter alia, to bulk train crew at the Parkes, Cootamundra and Moss Vale depots (that would have included Mr Gerstenmeier and Mr Gilbert) and the RTBU advising that the number of trains (‘rakes’) required by GrainCorp was being cut from 10 to 7 effective 1 July 2014. The memo indicated that there would be reduction in work in each of the depots. The memo included the following:

‘The detail (of the reduction in work) is still being worked through.

As such and in line with our employee agreements (relevant consultation clauses) Pacific National will now begin the process of consulting and working through the impacts with staff at each of the affected locations.

Local management will work with the affected locations conducting briefing sessions and consultation meetings, details of these will be communicated in the coming days.

Throughout this process Pacific National will explore all potential redeployment opportunities available across the business, and we will be seeking expressions of interest for redeployment.

Vacancies will be filled through our internal recruitment processes with affected employees who have applied given first preference for the positions.

We will also be seeking expressions of interest for voluntary redundancy from employees in affected positions only. Pacific National has a right to accept or reject expressions of interest for voluntary redundancy. Forced redundancies will also be considered however the consultation process is aimed at avoiding this outcome.

If you have any concerns or questions, please reach out to your Depot Manager or Regional Manager for more information.’

[12] On 14 April 2014, the National Operations Manager - Bulk, Mr Parton, sent the RTBU a copy of a memo that was being issued, inter alia, to Bulk Train Drivers at the Werris Creek and Narrabri Depots (that would have included all the other applicants). This memo included the following:

‘In line with difficult business circumstances and production of grain haulage tasks across NSW, we are now seeking expressions from interested employees from Werris Creek and Narrabri for voluntary redundancy and redeployment’.

[13] The memo then asked the employees to indicate their interest in being considered for voluntary redundancy and/or redeployment. It also include the following:

‘Irrespective of options indicated above, an involuntary redundancy program may also be implemented to manage reduced employee numbers at these locations, in addition depot leave programs may also be developed and implemented at a local level to facilitate and manage remaining employee numbers considering the remaining and available work in a depot as outlined in recent depot briefings.’

[14] Employees were advised that if they required further information or support they could contact their Depot Manager, HR Business Partner, and the Employee Assistance Program.

[15] On 23 April 2014 the RTBU and staff at the Werris Creek and Narrabri Depots were sent by Mr Jones an update on train crew downsizing at Pacific National Bulk locations. This was placed on the notice board. 3 The notice included the following:

‘Due to the reduction in grain harvest across NSW, as well as a GrainCorp contract change to reduce the number of rakes by 1 July 2014 in Southern and Western NSW; the Pacific National Bulk business has faced challenging business circumstances which has resulted in difficult decisions needing to be made regarding Train Crew staffing numbers in a number of NSW Bulk Locations.

On 28 February 2014, an initial notification was sent advising of the requirement to downsize at Bulk locations in Parkes, Cootamundra and Moss Vale, with consultations occurring in those locations. Since this initial notification, subsequent communication and consultation has occurred advising of the need to downsize Bulk Train Crew numbers at Werris Creek and Narrabri.

While every effort is being made to reduce staff by way of Voluntary Redundancy and Redeployment as the preferred options, consultation on a Knowledge and Skills Assessment (KSA) Tool will continue in locations where involuntary redundancies are likely to occur.

For the following Bulk locations, the current status of the downsizing process is detailed below:

Bulk Parkes, Cootamundra and Moss Vale depots -- Voluntary Redundancy EOIs submitted and VR offers presented to employees, redeployment process finalised with five employees redeployed to suitable alternative positions with Intermodal and Coal locations, KSA Tool consultations have been held locally and the number of involuntary redundancies required at each location is currently being reviewed.

Bulk Werris Creek and Narrabri depots -- Expressions of interest for Voluntary Redundancy and Redeployment have commenced with a closing date of 25 April, KSA Tool consultations will be scheduled to advise employees of the process that will be used if involuntary redundancies are required.

In line with our Pacific National Bulk Rail Enterprise Agreement 2013, Pacific National are consulting and working through the impacts with staff at each of the affected locations, including holding briefing sessions and information sessions at a local level with employees each affected depot.

Throughout this process Pacific National is exploring all potential redeployment opportunities available across the business, and we will be seeking expressions of interest for redeployment and accommodating requests wherever possible. However, in these difficult business circumstances our redeployment opportunities are limited, and suitable alternate positions are not guaranteed for those employees interested in redeployment.

We are also seeking expressions of interest for voluntary redundancy from employees in affected positions and locations only, Pacific National has a right to accept or reject expressions of interest for voluntary redundancy.

A Knowledge and Skills Assessment Tool (KSA) is also being used in order to identify positions for Involuntary Redundancy, at those depots where Voluntary Redundancies and Redeployments do not provide a sufficient production number. Consultation on the KSA Tool has commenced, and will continue for remaining affected depots....

If you have any concerns or questions, please reach out to your Depot Manager or Regional Manager for more information.’

[16] As noted, all these memos were sent to the RTBU by email. I am satisfied that the memos amounted to notification in writing of the nature of the proposed redundancies, the reasons for them and the relevant timing.

[17] Each memo was also sent to the relevant depot manager for distribution to all employees. The depot managers used various methods to distribute the memos, including email, employee ‘pigeon holes’, and notice boards. While some of the applicants claim not to have seen some of the memos I am satisfied, based on the evidence, that the respondent fulfilled its notification requirements with regard to the affected employees.

[18] The notices kicked off a consultation process involving both the RTBU and the employees directly affected.

[19] Mr Parton acted as the respondent’s principal point of contact with the RTBU in the period February to June 2014. He first advised Mr Pryor of the RTBU of the forthcoming reduction in train crew requirements on 14 February 2014.

[20] On 10 April 2014, Mr Parton sent an email to Mr Pryor advising him of the criteria the respondent was considering using for managing redundancies. They had a subsequent meeting on 12 April where Mr Pryor told him that the RTBU was very concerned at the prospect of forced redundancies. He asked the respondent to consider other options, including voluntary redundancy (VR) swaps. This is a process whereby employees in positions unaffected by the decision to reduce workforce numbers would be offered the chance to apply for voluntary redundancy, and if the position of a voluntary redundancy applicant was able to be filled by an employee from an affected position, then the first employee would be granted a voluntary redundancy and the second employee would be redeployed to the position of the first employee. Such a process would have the overall effect of achieving the desired workforce reduction while minimising the need for forced redundancies.

[21] Mr Parton sent Mr Pryor further information on 14 and 15 April, including a summary of workforce reduction details at that time and information about the number of voluntary redundancies and redeployments at Parkes, Cootamundra and Moss Vale Depots. He also indicated that VR swaps would be considered and would be assessed on a case-by-case basis at the location that was being downsized. Mr Pryor sent him a further email on 22 April 2014 listing a number of suggestions concerning the VR swap process and relocating train crew. Mr Pryor was involved in providing names of train crew who would or might be willing to participate in a VR swap process, including employees who might be willing to transfer to a depot unaffected by the workforce reductions.

[22] The RTBU subsequently notified the dispute to the Fair Work Commission. Following a conciliation conference in the Commission the respondent put a formal offer to modify the VR swap process to take account of the position put by the RTBU. This involved allowing for VRs from train crew at unaffected NSW Bulk depots. Train crew at affected NSW Bulk depots would then be permitted to apply for redeployment to an unaffected depot. This proposal was accepted by the RTBU.

[23] While these negotiations were taking place between the respondent and the RTBU, a series of meetings were held with the staff directly affected. For example, presentations were made by Mr Halman at the Cootamundra and Parkes Depots on 4 and 5 March 2014. The slides shown as part of the presentations provided more detail about the downturn in work and the need to reduce staffing numbers. It outlined the respondent’s preference for redeployment and indicated that redundancies would only be used as a last option. Attendees were invited to ask questions. A number of issues were raised concerning the redeployment and redundancy process. 4

[24] Further presentations were made on 11 April 2014 at the Parkes Depot providing more information and on 30 April 2014 for employees at the Werris Creek and Narrabri Depots. The presentations included a question and answer session.

[25] It is clear that the respondent allowed the RTBU and the affected employees an opportunity to express their views or concerns, and to actively participate in the consultative process. In particular the respondent genuinely consulted and considered the views put forward by the RTBU and affected employees in relation to the proposed redundancies. Indeed, the respondent significantly altered the approach it took to the downsizing process in response to proposals put forward by the RTBU on behalf of the affected employees, most notably by the use of a VR swap process encompassing unaffected depots (something to which the respondent was initially opposed.) While some employees did not actively participate themselves in the consultation process, I am satisfied that the applicants all had an opportunity to do, both in a personal capacity and also through their representative. A number of the applicants formed the view that they would be unaffected by the proposed workforce reduction, and therefore took little interest in the process. While some failed to attend meetings I am satisfied that this was more due to a lack of interest on their part, rather than because they had been prevented from attending by the respondent. Even where employees were unable to attend the scheduled presentations (for example, because of rostering commitments) I am satisfied that they had other opportunities to make their views known. Moreover, in reality the main avenue for the employees to express their concerns was through the RTBU.

[26] I am also satisfied that the respondent provided written reasons addressing concerns raised as part of the consultation process (for example, letters to the RTBU on 7 and 9 May 2014 and a Q&A distributed to employees on 13 May 2014.)

[27] In summary, I am satisfied that the respondent met its consultation obligations under the enterprise agreement. The consultation process was robust and led to some very significant changes in the way the workforce reduction process was managed. Thus, the second element of establishing a case of genuine redundancy is made out.

Would it have been reasonable in all the circumstances for the applicants to have been redeployed, either within the respondent’s business or within any associated entity of the respondent?

[28] The reasonableness of redeployment for the purposes of s.389 of the FW Act is to be assessed at the time of the dismissal. Relevant factors include any available position, the qualifications required to perform the position, the skills, qualifications and experience of the employee, the suitability of the employee for the position, the location of the position, the remuneration offered, and the willingness of the employee to be redeployed. 5 In assessing the reasonableness of redeployment it is necessary to identify the position or other work to which the employee could have been redeployed.6

[29] In assessing the reasonableness of redeployment for the purposes of s.389, it is not necessary for an employer to dismiss other employees in order to create a vacant position for a person whose role has been made redundant. 7 Nor (at least for the purposes of s.389) is it necessary for an employer to offer voluntary redundancy to other employees in order to create a vacant position for a person whose role has been made redundant.

[30] There is no doubt that the respondent, in general, went to some lengths to try and redeploy employees whose positions were made redundant as part of the workforce reduction process. Employees were encouraged to indicate their interest in redeployment (for example, in the notices issued on 28 February and 14 April 2014). Over 20 employees from Werris Creek, Moss Vale, Parkes and Cootamundra Depots were eventually redeployed as part of the process. 8 Nevertheless, due to the respondent’s difficult business circumstances opportunities for redeployment were limited.

[31] Redeployees were entitled, in accordance with the enterprise agreement, to a number of benefits including a relocation allowance to cover the cost of relocation and a ‘familiarisation visit’ of up to five days with travel costs for the employee and spouse to visit the location to examine housing and other services.

[32] None of the applicants applied for a redeployment position during the VR swap process, 9 or as part of the earlier expression of interest process.

[33] In the week beginning 20 May 2014, there were 15 employees, including the applicants, who were due to be given notice during a one on one meeting that their employment would be terminated involuntarily unless they were able to be redeployed prior to the termination of employment date. This date was usually seven days after they were given their letter of termination of employment, although in some cases this period was longer. Four employees were redeployed as part of this final process. 10

[34] The letters of termination stated:

‘Alternative roles within Pacific National suitable to your skills and experience have been sought, however at this time there are no suitable redeployment opportunities. Over the next 7 days we will continue to review possible redeployment opportunities with you. Between now and [date] you must advise us if you are interested in redeployment to any of the current vacancies. A list of vacancies is included with this letter.’ 11

[35] It is appropriate to examine the individual circumstances of each of the applicants to understand why they were not redeployed, and whether it would have been reasonable for this to have occurred. In a few instances there is a conflict between the evidence of the applicants and Ms Romanowski. Where this is the case I have preferred Ms Romanowski’s evidence. Her evidence, unlike that of the applicants, was generally supported by relevant written documentation or contemporaneous notes.

Mr Panton

[36] Mr Panton was employed at Narrabri. He agreed during cross-examination that he read the memo of 14 April 2014 that sought expressions of interest for voluntary redundancy and redeployment from Narrabri train crew 12. It is clear from Mr Panton’s own evidence that he did not seriously consider redeployment prior to being told he was to be dismissed, because he thought his employment was secure13. Four other Narrabri based employees had sent expressions of interest in redeployment on 23 April 2014.

[37] Mr Panton agreed that he saw a notice issued on 12 May 2014 that sought applications for redeployment to a range of different locations, including Morandoo, Enfield, Clyde, Grafton, Gulgong, Bathurst, Nowra, Broken Hill, Perth, Meridan, Cook and Port Augusta. 14 The notice indicated that employees from affected depots seeking redeployment were to apply by 19 May 2014, and be available to take up their new position by 6 June 2014.15

[38] On 22 May 2014 Mr Panton was told his position was redundant and that his employment was to be terminated. He was given a list of redeployment options to consider for one week before he was terminated. These included locations in Western Australia and South Australia and Broken Hill. He considered them all too far away from Narrabri to relocate. 16 Ms Romanowski subsequently rang him and told him: ‘if I wished to apply for Gunnedah, Greta or Port Waratah, that I could have the job.’17 He was given an extra week to consider these redeployment options. When he was subsequently rung by Ms Romanowski he told her to proceed with the redundancy on the grounds he felt he had been treated badly.18 Ms Romanowski’s evidence is that while she told Mr Panton that she would investigate whether a redeployment position would be available at Gunnedah, it turned out that there was no such vacancy.19

[39] On Mr Panton’s own evidence, he was given a number of opportunities to be redeployed, including to a number of other depots in New South Wales. He refused to take up these opportunities. Given his unwillingness to be redeployed to any of the available positions it could not be said that it would have been reasonable in the circumstances for the respondent to redeploy Mr Panton.

Mr Bowen

[40] Mr Bowen had been employed as part of the ‘Flying Crew’ since November 2013. According to Mr Bowen, ‘The Flying Crew is a flexible workforce employed to cover shortages throughout the country in the various business groups.’ 20 Members of the Flying Crew could be sent to work anywhere (though his home was at Werris Creek.)21 His evidence was that moving around suited him (though things have now changed as he now has a family.)22

[41] He attended a meeting on the work force reduction process at the Cootamundra depot, run by Mr Halman. His recollection was that it was indicated that the flying crew employees would be redeployed. 23

[42] In May 2014 Mr Bowen was working at Port Augusta. He was asked to come to a meeting at Werris Creek with Mr Halman on 23 May 2014 where he was told his employment was to be terminated. At the time he was told he was being made redundant he already had a job with another employer ‘in the pipeline’ though had not signed any documents. 24 During the 23 May 2014 meeting he challenged the grounds for his selection for involuntary redundancy and said he had been chosen because of his poor relationship with the depot manager. He was told during the meeting that there were two permanent driver positions in Port Augusta (where he was working at the time) and was told that if he was interested he could apply for redeployment to one of those positions.25 He declined the offer.26

[43] Mr Bowen did not apply for any of the redeployment opportunities that the respondent made available. He turned down a specific offer of redeployment to the Port Augusta Depot, where he was working at the time. Given his apparent lack of interest in redeployment, it would not have been reasonable for him to have been redeployed by the respondent.

Ms Pearson

[44] Ms Pearson was employed at Werris Creek. In her first statement she stated:

‘There were e-mails, several, asking for people to put hands up for voluntary (sic) to be finalized by approx. 5th may 2014 or staff could redeploy applications also in by I think this date. The 17th was then going to be involuntary date. Redeployment was not an option as I have a farm and cannot commute from Port Augusta or Perth. The closest was Gulgong and a driver took that ASAP as it’s near his children.’ 27

[45] In her second statement, Ms Pearson said:

‘...I was happy at Werris Creek and have a farm with many animals to look after.’ 28

[46] According to her statement, at the meeting on 23 May 2014 at which she was told she was to be made redundant, she did ask about positions at Gunnedah. 29 She told Ms Romanowski that she was only interested in redeployment if she could get a job locally. However no such positions were available.30

[47] During her examination-in-chief, Ms Pearson made it clear that she was only interested in redeployment to Gunnedah. 31 During her cross examination she said she did not remember Ms Romanowski asking about whether she was interested in redeployment, but did ask whether the respondent would move her animals.32

[48] The only location to which Ms Pearson was interested in being relocated was Gunnedah. The uncontested evidence from Ms Romanowski is that no position was available at Gunnedah. I am satisfied that in these circumstances it would not have been reasonable to have redeployed Ms Pearson.

Mr Mounter

[49] Mr Mounter had worked at the Werris Creek Depot since 2009.At the time he was made redundant he was on restricted duties owing to a leg injury. According to his own evidence he declined redeployment due to his medical requirements. 33 He wished to stay where he was in order keep in touch with the doctors who were treating him.34

[50] Mr Mounter did tell Ms Romanowski at his one on one meeting that he might be interested in being redeployed to Broken Hill. 35 However during his cross examination he said that having discussed the issue with his wife and in light of his injury he was of the view that he could not perform the duties of train crew at Broken Hill.36

[51] During his cross examination Mr Mounter indicated that he would have considered a redeployment to Newcastle or Gunnedah ‘or somewhere like that’ if he had been fit and well. 37 During re-examination he reiterated that that he would not accept redeployment to Broken Hill, though he would now accept a position at Newcastle or somewhere closer.

[52] As noted previously, the relevant time for considering whether redeployment would have been reasonable is when the termination of employment took effect. I am satisfied that at the time of the termination of his employment Mr Mounter did not wish to be redeployed to any of the available positions. In these circumstances it would not have been reasonable for the respondent to have redeployed him.

Mr Gilbert

[53] Mr Gilbert had been working at Moss Vale since 2008.

[54] Mr Gilbert was told he was to be made redundant at a one on one meeting on 20 May 2013. According to his statement he was offered to transfer to other depots in Enfield or Perth and would have to take up the offer and start at either location on 6 June 2014. He stated that:

‘I had 7 days to decide if I wanted to transfer I felt like there wasn’t much time to decide and the places were too far away from mine and my partner’s family.’ 38

[55] During his cross examination Mr Gilbert said that he did not wish to transfer to Enfield partly for family reasons, and also because he did not wish to drive a route with which he was unfamiliar. 39

[56] According to his statement on 22 May 2014 Mr Gilbert told Ms Romanowski he was not sure about relocating. On 26 May he spoke again to her. In his statement he said that he told her:

“...I advised that I wasn’t interested in relocating to any position.’ 40

[57] In his statement Mr Gilbert said he would have considered relocating to Nowra or Sydney ‘if offered within a reasonable time frame to relocate.’

[58] Ms Romanowski’s statement confirmed that Mr Gilbert told her on 26 May 2014 that he did not want to apply for any of the redeployment roles. She said that he told her he was exploring other opportunities driving trucks. 41

[59] The respondent put forward a number of opportunities for Mr Gilbert to be redeployed, including in Sydney. After consideration, he advised the respondent that he did not wish to be redeployed.

[60] While Mr Gilbert complained about the short time frame for considering the issue of redeployment he actually had a considerable time - from March to late May 2014 - to consider the issue. Given that he told the respondent he did not wish to be redeployed, it would not have been reasonable for him to have been redeployed.

Mr Gerstenmeier

[61] Mr Gerstenmeier worked at the Moss Vale Depot. According to his statement, he took no notice of the memos of 28 February and 3 March 2014 concerning expressions of interest for voluntary redundancy and redeployment:

‘I took no notice as I wasn’t interested in VR or relocation as I am just starting my career.’ 42

[62] Mr Gerstenmeier said he thought a bit about redeployment after receiving the 12 May 2014 memo ‘but with little time to think and talk to his partner, the time frame specified ran out.’ 43

[63] Mr Gerstenmeier’s evidence is that he was given a number of locations to consider for redeployment at his termination meeting on 20 May 2014. When Ms Romanowski rang him back three days later he told her he was still unsure. He spoke to her again on 26 May 2014 and told her that all the locations were too far away. 44

[64] The respondent gave Mr Gerstenmeier several opportunities to apply for redeployment. He declined them all. In these circumstances it would not have been reasonable for him to have been redeployed.

Mr Moyer

[65] Mr Moyer worked at Werris Creek. In his statement he said (with regard to opportunities to seek redeployment:

‘After looking at the positions on offer and talking to my family, I decided NO and phoned and told company representative Joanne (Romanowski) from HR about my decision.’ 45

[66] In these circumstances it would not have been reasonable for Mr Moyer to have been redeployed by the respondent.

Mr Taylor

[67] Mr Taylor was based at Werris Creek, but worked as part of the Flying crew. While his evidence was that he received ‘most notices’ about the workforce reduction process, he took the view that it would not affect members of the Flying Crew. 46 He did not apply for redeployment prior to being notified that his position was to be made redundant.

[68] Mr Taylor was absent on annual leave on 23 May 2014 when the one on one meeting with him had been scheduled. He returned from leave on 29 May 2014. Ms Romanowski sent him an email advising of a number of redeployment opportunities at Perth, Meridan, Port Augusta and Townsville. His notice was extended from 30 May to 6 June 2014 to allow him more time to review these redeployment opportunities. He informed Ms Romanowski by phone that he was not interested in relocating but would be keen on a role at either Antiene or Gunnedah Depots. 47 Ms Romanowski had two further telephone conversations with Mr Taylor during which he confirmed that he was not interested in any of the available redeployment roles.48

[69] In these circumstances it would not have been reasonable for Mr Taylor to have been redeployed by the respondent.

[70] In summary, none of the applicants applied for redeployment to any available roles. They either expressed no desire to be redeployed or were only interested if positions were available locally. None of the applicants were able to identify any alternative roles (that were actually available) to which it would have been reasonable to appoint them.

[71] Some of the positions that were available were relatively close (for example, in Sydney). I am satisfied that, despite some of the concerns now expressed by some of the applicants, the respondent afforded all of them a reasonable opportunity to consider whether they wished to be redeployed.

[72] Given these circumstances, it cannot be said that it would have been reasonable for the respondent to have redeployed any of the applicants. The third element of establishing a case of genuine redundancy is made out.

Conclusion

[73] I am satisfied that each of the dismissals of the applicants was a case of genuine redundancy. Accordingly their applications for an unfair dismissal remedy are dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

K Pryor for the Australian Rail, Tram and Bus Industry Union (RTBU).

A. Gotting of counsel for the respondent.

Hearing details:

2014.

Sydney:

December, 1,2,3 and 12.

 1   UES International Pty Ltd v Harvey [2012] FWAFB 5241

 2   PN3285, 3326-3327

 3   PN190

 4   Exhibit PN4 paragraphs 8-11

 5   Ulan Coal Mines Ltd v Honeysett [2010] FWAFB 7578

 6   TAFE Commission v Pykett [2014] FWCFB 714

 7   Jain v Infosys Limited [2014] FWCB 5595

 8   Documents 256-257 Exhibit PN14

 9   Exhibit PN7, paragraph 42

 10   Exhibit PN7, paragraph 43

 11   Exhibit PN7, paragraph 45

 12   PN 152-157

 13   PN159

 14   PN308

 15   183-184, Exhibit PN14,

 16   PN353

 17   PN355

 18   PN369-371

 19   PN2413-2423

 20   Exhibit RTBU3, paragraph 4

 21   PN516-8

 22   PN519

 23   PN477

 24   PN498

 25   PN513

 26   PN524

 27   Exhibit RTBU5, paragraph 7

 28   Exhibit RTBU6, paragraph 4

 29   Exhibit RTBU6, paragraph 13

 30   Exhibit PN7, paragraph 60

 31   PN593

 32   PN742-3

 33   Exhibit RTBU7 paragraphs 14-17

 34   Exhibit RTBU8, paragraph 5

 35   PN917

 36   PN929

 37   PN871

 38   Exhibit RTBU9, paragraph 19

 39   PN1146, 1150

 40   Exhibit RTBU10, paragraph 17

 41   Exhibit PN7, paragraph 64

 42   Exhibit RTBU12 paragraph 4

 43   Exhibit RTBU12, paragraph 7

 44   Exhibit RTBU12, paragraph 11

 45   Exhibit RTBU13, paragraph 13

 46   Exhibit RTBU16

 47   Exhibit PN7, paragraph 52

 48   Exhibit PN7, paragraphs 55-6

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