Catherine Funtulis v John Deere Limited (Australia/New Zealand)
[2022] FWC 1398
•3 JUNE 2022
| [2022] FWC 1398 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Catherine Funtulis
v
John Deere Limited (Australia/New Zealand)
(U2021/9785)
| COMMISSIONER HUNT | BRISBANE, 3 JUNE 2022 |
Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy
Introduction
On 1 November 2021, Mrs Catherine Funtulis made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging that she had been dismissed from John Deere Limited (Australia/New Zealand) (the Respondent) and that her dismissal was harsh, unjust or unreasonable.
In her Form F2 – Unfair Dismissal Application (F2), Mrs Funtulis stated that she was dismissed following a restructure undertaken by the Respondent which resulted in a number of positions being made redundant. Mrs Funtulis was advised that she was not suitable for redeployment into available positions.
On 11 November 2021, the Respondent filed a Form F3 – Employer response to the application. In the Form F3, the Respondent objected to the application on the jurisdictional grounds that Mrs Funtulis’ dismissal was a case of genuine redundancy.
Background
Mrs Funtulis commenced employment with the Respondent on 25 May 2011. At the time her employment ended on 25 October 2021, noting she was not informed of the termination until 1 November 2021, she was engaged as a Finance Analyst in the Accounting and Finance Team. The Respondent’s position is that Mrs Funtulis was not covered by a modern award or enterprise agreement.
The Respondent markets and distributes agriculture, construction and turf equipment in Australia and New Zealand. It, together with its parent company, Deere & Company, and other subsidiaries of Deere & Company, underwent significant structural changes in 2020 as part of a “Smart Industrial Redesign” aimed at streamlining parts of the business, and changing the organisational structure to better align positions and duties with the evolving needs of the business.
The Respondent explained that Deere & Company required the Accounting and Finance Team to fulfil a new role within the organisation and lift its performance post-Smart Industrial Redesign. Accordingly, the Respondent determined it was necessary to change the structure of and skillset required in the Accounting and Finance Team. The Respondent claimed that it no longer required Mrs Funtulis’ job to be done by anyone, and it explored all reasonable redeployment opportunities for her to no avail. The Respondent is of the view that it had no obligation to consult about its decision, but did so anyway. Mrs Funtulis received 25 weeks’ redundancy pay and 5 weeks’ pay in lieu of notice as part of her role having been made redundant.
Mrs Funtulis contended that her dismissal was not a case of genuine redundancy, arguing that there is a continued need for her job despite the changes in the operational requirements of the Respondent’s enterprise. Further, she contends that the Respondent failed to consult her about the redundancy and failed to redeploy her.
Hearing of the application
I listed the matter for a video Jurisdiction Hearing using Microsoft Teams on 31 January 2022. Mrs Funtulis appeared on her own behalf, supported by her husband, Mr John Funtulis. Mr Andrew Wydmanski, Senior Associate at Allens, was granted leave to represent the Respondent for the reasons outlined in my decision in [2021] FWC 6598. In addition to Mrs Funtulis, the following people gave evidence during the hearing:
· Mr Tharindu Dedigama, former employee of the Respondent;
· Ms Jessica Hart, Human Resources Manager;
· Mr Jamie Maione, Chief Financial Officer;
· Ms Amy Strong, Accounting Manager; and
· Mr Shane Edwards, Regional Group Controller – Region 4.
Relevant legislation
Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
“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.”
Section 396 of the Act sets out the following:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
As set out above in s.396 of the Act, consideration as to whether the dismissal was harsh, unjust or unreasonable cannot occur if the dismissal was a case of genuine redundancy. If the Commission determines that the dismissal was a case of genuine redundancy, the application will be dismissed.
Section 389 of the Act provides the meaning 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.”
This decision determines the jurisdictional issue as to whether the dismissal of Mrs Funtulis was a genuine redundancy pursuant to s.389 of the Act.
Submissions of the Respondent
The Respondent submitted that Mrs Funtulis’ dismissal was a genuine redundancy, and her application must fail for want of jurisdiction.
Respondent no longer required Mrs Funtulis’ job to be performed by anyone
The Respondent noted that a job is “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee”.[1] It argued that a job can be no longer be required by an employer even if the tasks and duties that made up the employee’s job are still performed by other employees.[2]
The Respondent explained that the restructure was designed to transform the Accounting and Financing Team into trusted internal advisors who could provide high quality advice and support business decision-making. The restructure was also aimed at addressing efficiency, capacity, workload distribution in the team, and improving and addressing the team’s business partnering capabilities and internal customer service issues. The Respondent predominantly redistributed Mrs Funtulis’ duties between three roles, an existing Senior Finance Analyst (Forecast & PLR) position, a new position titled SA&G Accountant, and a new position titled Asset Accountant.
The Respondent contended that Mrs Funtulis’ duties were redistributed based on complexity, with the more advanced work being shifted into the Grade 8 Senior Finance Analyst (Forecast & PLR) position and the less advanced work being shifted into the Grade 6 SA&G Accountant position and the Grade 6 Asset Accountant position. Approximately 30% of Mrs Funtulis’ duties before the restructure were inherited by the SA&G Accountant position, with a further 30% of her responsibilities inherited by the Asset Accountant position and 20% moved into the Senior Finance Analyst (Forecast & PLR) position. The remainder of Mrs Funtulis’ responsibilities were redistributed amongst the Accounting and Finance Team.
The Respondent submitted that employers often redistribute duties of one employee to a number of others to improve efficiency and reduce costs.[3] Redundancies commonly arise as a result.
As a result of the restructure, the Respondent contended that there were no duties left for Mrs Funtulis to discharge.[4] Her role had not been, and would not be replaced. Simply put, the Respondent submitted that it no longer required Mrs Funtulis’ job to be performed by anyone.
No relevant consultation obligation
As Mrs Funtulis was not covered by a modern award or enterprise agreement, the Respondent submitted that it was not required to comply with any consultation obligation arising from an applicable award or enterprise agreement. Despite this, the Respondent asserted that it engaged in a comprehensive consultation process with Mrs Funtulis, including:
· meeting with Mrs Funtulis on 14 October 2021 to explain the proposed restructure, her potential retrenchment, and to invite her to consult with the business;
· providing Mrs Funtulis with a letter on 14 October 2021 which stated that she was invited to ask questions and provide feedback on the proposed restructure and her potential retrenchment. Mrs Funtulis was told that the consultation period would last one week until 20 October 2021, but, at the request of Mrs Funtulis, the consultation period was extended until 22 October 2021;
· meeting with Mrs Funtulis on 15 October 2021 to further explain the proposed restructure, answer Mrs Funtulis’ questions about the restructure, and hearing her feedback;
· meeting with Mrs Funtulis at her request on 18 October 2021 to discuss the proposed restructure and discuss her concerns about the restructure process; and
· sending correspondence to Mrs Funtulis on 15 October and 18 October 2021 which, at Mrs Funtulis’ request, provided her with detailed descriptions of the two new roles proposed to be introduced into the Accounting and Finance Team and a list of all the Respondent’s vacant positions in Australia and New Zealand.
It was not reasonable to redeploy Mrs Funtulis
In considering whether redeployment was reasonable, the Respondent contended that the Commission must first be satisfied that there is an identified available role at the time of the dismissal.[5] Once so satisfied, the Commission is then required to consider a range of factors with respect to each available position:
(a)the nature of the available position;
(b) the qualifications required to perform the job;
(c) the employee’s skills, qualifications and experience;
(d) the location of the job in relation to the employee’s residence; and
(e) the remuneration which is offered.[6]
The two new positions created as part of the restructure were SA&G Accountant and Asset Accountant. The Respondent argued that it was not reasonable to deploy Mrs Funtulis into either of those roles. Both positions were at a lower grade than Mrs Funtulis’ position before the retrenchment (Grade 6 as compared to Grade 7) and received an approximately 20% lower rate of pay.
Furthermore, the Respondent advised that Mrs Funtulis’ work experience involved significantly different responsibilities to the two new positions. Although some of the technical accounting functions and duties were redistributed among the SA&G Accountant and Asset Accountant positions, that formed only approximately 30% respectively of what each job entailed. A significant number of Mrs Funtulis’ former duties (approximately 20%), which comprised the majority of the more technically skilled accounting duties were absorbed by the existing Senior Finance Analyst position.
The Respondent submitted that a much more important part of the new roles was interpersonal and communication skills. Based on Mrs Funtulis’ responsiveness to coaching and training in ‘soft’ skills during her time in the Accounting and Finance Team, the Respondent formed the view that Mrs Funtulis did not have the necessary interpersonal and communication skills and could not be reasonably retrained to attain the necessary proficiency in those areas. The Respondent submitted that the behaviour and intemperate communication of Mrs Funtulis during the consultation period supported this view.
The Respondent further asserted that it also considered whether there were any vacant positions in its operations in Australia and New Zealand outside of the Accounting and Finance Team and the operations of those other subsidiaries of Deere & Company which operate in Australia and New Zealand where Mrs Funtulis could be redeployed. However, the Respondent advised that it could not identify any positions appropriate for Mrs Funtulis’ experience and skillset, even with reasonable retraining.
The Respondent also contended that it was not reasonable for the Respondent to consider redeploying Mrs Funtulis in one of its associated entities overseas. It also would not have been practical for Mrs Funtulis to perform duties for an overseas entity from Australia. It follows, according to the Respondent, that it was not reasonable in all of the circumstances for the Respondent to redeploy Mrs Funtulis within its business or that of any of its associated entities.
For the reasons set out above, the Respondent submitted that Mrs Funtulis’ dismissal was a genuine redundancy and that the Commission lacks jurisdiction to hear and determine the application.
Evidence of Ms Hart
Ms Hart provided a witness statement in these proceedings. Ms Hart is employed by the Respondent as the Human Resources Manager, holding this role since May 2020. She is responsible for the Respondent’s human resources operational activities in Australia. This includes onboarding new employees, managing people exiting the business, payroll, performance management, and employee engagement.
Restructure at the Respondent’s enterprise
On 1 September 2021, Ms Camilla Kelly, Head of People and Culture informed Ms Hart by email that a restructure of the Accounting and Finance Team (A&F Team) was being proposed by Mr Jamie Maione, Chief Financial Officer and Ms Amy Strong, Accounting Manager. In the same email, Ms Kelly asked that Ms Hart go through the details of the restructure with Ms Strong to ensure that Ms Hart was comfortable with the proposal and to develop a plan to implement the restructure. The email is extracted as follows:
“Hello,
Jamie and Amy presented the above presentation to me and Shane last week. We are both supportive and so is Kevin Larsen. Can you please book in some time with Amy to go through this in details so that you also are comfortable and then draft up the plan, then the 4 of us can align before we go ahead. For this one we will have to be very clear on the execution and communication.
Thanks
Camilla”
In early September 2021, Ms Hart reviewed information on the Commonwealth Legislation, Fair Work Ombudsman and Fair Work Commission websites regarding best practice in a restructuring process, including in relation to consultation obligations with employees. Ms Hart advised that she also reviewed several subscriber resources available from Ai Group about what is best practice by employers in restructuring process. She explained that she undertook this research to ensure that the Respondent followed the correct process and current best practice.
On 16 September 2021, Ms Hart met with Ms Strong to discuss the details of the proposed restructure of the A&F Team. In this meeting, Ms Strong advised that both she and Mr Maione had formed a preliminary view that neither of the employees they proposed to retrench could be redeployed to the new roles in the A&F Team or the SA&G Accountant and Asset Accountant positions. Ms Hart advised Ms Strong that they would need to objectively assess each of the employees who were potentially going to be retrenched to determine their suitability for the SA&G Accountant and Asset Accountant positions, plus any other vacant positions with the Respondent and its associated entities.
On 20 September 2021, Ms Strong sent Ms Hart, copying in Mr Maione, a list of the key qualities required for the new SA&G Accountant and Asset Accountant positions. This list formed the basis of Ms Strong and Mr Maione’s assessment of whether the two employees of the Respondent proposed to be retrenched could be redeployed into the SA&G Accountant and Asset Accountant positions. Ms Hart understood from Ms Strong’s email that this list was developed by herself and Mr Maione together, with some subsequent additions from Ms Strong. The key qualities required are listed below:
“Asset Accountant
· Quality and integrity as a foundation
· Strong Analytical and problem-solving skills
· Strong communication and relationship building skills
· Strong excel/systems skills
· Process/continuous improvement (eg improve the monthly reconciliation of both fixed asset and lease accounts)
· ‘Uses initiative’
· ‘Meets deadlines’
· ‘Compliance’ mindset and understands risks
· Highly productive and effective
· Knowledge of standards (particularly fixed assets and AASB16 leases)
· Less connection with the business as SA&G
· Technical/accounting foundation skills
· Ability to partner and connect with the business
SA&G Accountant
· Quality and integrity as a foundation
· Exposure to business for various cost centre and leaders (Ability to partner and connect with the business)
· Trusted business partnering key success factor for this role
· SA&G are an OKR for our branch, so with this visibility attention to detail and high levels of accuracy are imperative
· Ability to influence business with facts and data – (critical for success) Influencing skills
· Build up the service we offer on misc billing
· Strong Analytical skills and problem-solving skills
· Strong communication and relationship building skills
· Strong excel/systems skills
· Process/continuous improvement (eg enhance the way we report and forecast SA&G)
· ‘Uses initiative’
· ‘Meets deadlines’
· Highly productive and effective
· Technical/accounting foundation skills
· ‘Compliance’ mindset and understands risks”
In around late September 2021, Ms Hart further reviewed the Fair Work Ombudsman’s guidance in relation to restructuring processes and managing redundancies correctly. Ms Hart formed the view that both of the employees the Respondent proposed to retrench were not covered by an award or enterprise agreement. Consequently, the Respondent was not required to consult with the impacted employees about the redundancy. However, Ms Hart said she decided that they would, nonetheless, consult with them and provide them with at least a week to give feedback. Ms Hart considered that approach was in line with best practice by employers in a restructuring.
In late September 2021, Ms Hart reviewed all of the available positions with the Respondent in Australia and New Zealand. She considered if either of the employees the Respondent proposed to retrench could be redeployed to any of the available positions. She formed the view that based on their experience and skillsets, the employees could not be redeployed to any available positions with the Respondent, even with reasonable retraining. Ms Hart determined that Mrs Funtulis’ qualifications and experience as an Accountant did not align with the requirements of any of the vacant positions with the Respondent.
Ms Hart stated that she did not consider positions in the Respondent’s associated companies overseas as it is a requirement of the Respondent that an internal overseas transfer have a work visa for the country to which they are moving, and it would not have been practical for Mrs Funtulis to perform the duties for those positions from Australia.
On 1 October 2021, Ms Hart met with Ms Strong, Mr Maione and Ms Kelly to discuss the implementation of the restructuring process, including a proposed consultation plan that Ms Hart had developed. They all met again 12 October 2021 to discuss the final consultation plan and review draft meeting scripts and consultation paperwork.[7]
On 14 October 2021, Ms Hart and Mr Maione met with Mrs Funtulis to discuss with her the Respondent’s decision that it did not require her job to be performed due to the restructure, inviting her to suggest alternative options or ideas. Following the meeting, she attempted by telephone, unsuccessfully, to check up on Mrs Funtulis’ welfare.
A follow-up meeting was arranged between Ms Hart, Mr Maione, and Mrs Funtulis, on 15 October 2021, during which Ms Hart stated that Mrs Funtulis spoke loudly and abruptly and was asked on at least one occasion to “act professionally”.
On 18 October 2021, she emailed to Mrs Funtulis a list of available roles in Australia and New Zealand, inviting Mrs Funtulis to email her if she sought further information. Mrs Funtulis did not do so.
Ms Hart stated that from 20 October 2021, following allegations by Mrs Funtulis that she had engaged in serious misconduct toward Mrs Funtulis, Ms Hart ceased to have any direct contact with Mrs Funtulis. Ms Hart denies the allegations. Mrs Funtulis’ emails containing the allegations are reproduced in full further below.
Ms Hart advised Ms Kelly that the only feedback that Mrs Funtulis has provided as to the proposed redundancy was that Mrs Funtulis did not believe her role was redundant, she wished to remain in her role or be redeployed, and that she wanted a redundancy payment equivalent to 100 weeks’ salary. Ms Hart recommended to Ms Kelly that the Respondent proceed with the retrenchment of Mrs Funtulis.
Reply statement of Ms Hart
In her reply statement, Ms Hart addressed the issue of redeployment with reduction in pay, stating that:
“5. I refer to paragraph 61 of the Applicant's statement. 12 John Deere employees were moved to a lower grade but retained their historic base salary in the 12 months preceding the Applicant's dismissal. This approach was taken as part of the broader Smart Industrial Redesign (SIRD) process for 11 of these situations. Since November 2020, there has been only one instance of a John Deere employee moving down a grade but retaining their historic base salary. This approach was taken as this was a niche role in a hard to fill location that had been vacant for 4 months.
6. In the Applicant's case, I had already formed the view that, even with reasonable retraining, the Applicant was not suitable to be redeployed to any positions available within John Deere (so the issue of whether her historic base salary would be maintained did not arise).”
Ms Hart further stated as to redeployment:
“7. I refer to paragraph 65 of the Applicant's statement. I disagree with the Applicant's assessment that three vacant positions were not shown to her. The Dealer Development Specialist position she refers to is listed in Annexure JAH-7 under the title 'Dealer Solution Analyst' and one of the Parts Analyst roles she refers to is listed in Annexure JAH-7 as 'Business Analyst – Parts Inventory'. The other Parts Analyst position was offered to an internal candidate on 22 September 2021 and was not available to offer to the Applicant by the time we started consulting with her about the restructure.
8. I refer to paragraph 66 of the Applicant's statement. I looked at redeployment options for the Applicant within John Deere and its associated entities in or about late September, following on from my meeting with Accounting Manager, Amy Strong. I monitored available positions throughout September and October, but could not identify any positions which I considered the Applicant could be redeployed to, even with reasonable retraining. There were three positions available throughout September and October which are not listed in Annexure JAH- 7, because they had already been offered to other candidates and were not available to offer to the Applicant by 18 October 2021. The three positions were Compliance Lead, Service Parts Analyst and Customer Service Representative. These positions are very different to the Applicant's former role in the Accounting and Finance Team. Based on the Applicant's experience and skillset, I did not consider it would have been reasonable to redeploy her to any of those positions, even with reasonable retraining.”
Evidence given during the hearing
Ms Hart stated that Mrs Funtulis did not express an interest in a Dealer Solution Analyst role. In considering Mrs Funtulis’ suitability for redeployment, Ms Hart took into account feedback from Mr Maione and Ms Strong.
Ms Hart advised that whenever she has requested an employee’s remuneration be maintained upon an employee’s role classification being downgraded, at no time has the request been refused.
Evidence of Mr Maione
Mr Jamie Maione, Chief Financial Officer of the Respondent, provided a witness statement in these proceedings. Mr Maione stated that he reports to Mr Shane Edwards, Region Four Regional Controller, based in Kansas, in the United States. He supervises 10 people in the Accounts & Finance team (A&F Team), and described his role as follows:
“I am responsible at a high level for all of the accounting and financial management of John Deere. This includes all of the financial reporting required to comply with statutory requirements in the United States, Australia and New Zealand, plus tax and treasury activities, financial planning and budgeting, financial analysis, accounts payable and associated operational activities. I am also the Company Secretary and Regional Compliance Officer for John Deere. I am part of the John Deere Executive Leadership Team (ELT) acting as a trusted advisor and business partner to the Managing Director and ELT on commercial and strategic activities as well as providing guidance on risk management.”
Mr Maione provided the following background as to the restructure:
“9. In 2020, John Deere's parent company, Deere & Company, embarked on a global restructure of its operating model titled 'Smart Industrial Redesign'. This restructure resulted in numerous redundancies globally.
10. Following the global restructure, Deere & Company's expectations for the A&F Team evolved considerably. The A&F Team in Australia and New Zealand is now expected to do more than simply provide financial reports, but to also be a team of trusted internal advisors who work closely with business managers and can provide high quality insights based on data analysis. The team is required to have strong interpersonal and communications skills in order to influence business decision-making based on data interpretation.
11. In my view, this shift in expectations is due to Deere & Company's (and its global subsidiaries') shift to a new strategic operating model as part of global the Smart Industrial strategy. John Deere achieved approximately AUD$2 billion in turnover last financial year. The shift in expectations also reflects a more widespread evolution in the finance profession.
12. In early 2021, my manager in the United States, Shane Edwards, set clear goals for me to ensure that the A&F Team lifted our performance and was fulfilling the new role required of it by Deere & Company and the local ELT. These goals were the catalyst for the restructuring of the A&F Team that occurred in October 2021 and resulted in the Applicant's retrenchment.
13. The following business reasons also informed the restructuring process:
(a) there were capacity and workload concerns in the A&F Team, with some employees working too many hours while others had insufficient work. We needed to rebalance responsibilities to ensure a more even spread of work across the team;
(b) some responsibilities in the team had been structured in an inefficient manner. See my comments at paragraphs 17 and 18 below regarding the inefficient distribution of tasks associated with the Applicant's role. We needed to redistribute these tasks to optimise performance across the team;
(c) as a consequence of workload issues and structural inefficiencies, work quality was being compromised and was not of the necessary quality to support a business of the size and turnover of John Deere;
(d) to improve and address the team's business partnering capabilities and internal customer service issues. Concerns had been raised with me internally about the team's responsiveness and ability to provide insight about risk and future performance to support decision-makers in the business; and
(e) from a risk compliance perspective, the capacity and workload issues in the team were creating a risk of burnout and stress in some team members. This also created an audit and compliance risk as individuals are more likely to make errors or provide incorrect information when stressed or tired.
14. In late August 2021, the Accounting Manager, Amy Strong, and I reviewed the existing A&F Team structure in consultation with my manager and with the considerations set out in paragraph 13 in mind, and considered how we could restructure the team to best meet Deere & Company's expectations and optimise workload across the team. A copy of PowerPoint slides that Amy Strong and I drafted in August 2021 (showing an organisation chart of the A&F Team prior to the restructure on the third slide) is attached at Annexure JM-1.
15. The key changes Amy and I proposed to make to the A&F Team are as follows:
(a) to redistribute the more technical aspects of the Finance Analyst position to the Senior Finance Analyst position (being the higher level construction and forestry and aftermarket product line reporting responsibilities). This was about 20% of the responsibilities of the Finance Analyst before the restructure;
(b) to transfer the less technical sales, administration and general expenses responsibilities from the Finance Analyst position to a new position titled SA&G Accountant. This was a further 30% of the responsibilities of the Finance Analyst before the restructure; and
(c) to substantially realign roles and responsibilities between the Branch Accountant and Assistant Accountant, and create a new position called Asset Accountant.
16. Under the proposed restructure, two positions would be made redundant – Finance Analyst and Branch Accountant 2. Another two positions would be introduced to the team - SA&G Accountant and Asset Accountant. A further three positions would have changes to their responsibilities, being the Accounting Manager, the Senior Finance Analyst (Sales, Forecast & SA&G), and the Assistant Accountant. Copies of the role objective statements for the new SA&G Accountant and Asset Accountant positions, plus the John Deere Competency Model referred to in the role objective statements are attached at Annexure JM-2. The Competency Model sets out the 'soft skills' required for the SA&G Accountant and Asset Accountant positions, including in relation to 'customer orientation' and 'communication'.
17. Prior to the restructure, in the role of Finance Analyst, the Applicant had primary responsibility for all financial planning, budgeting, and reporting for the sales, administration and general expenses for 11 cost centres in the John Deere branch. She also had responsibilities regarding preparing and processing authorisation for expenditure in relation to capital, leasing, and the disposal of assets. A copy of the position description for the Finance Analyst position is attached at Annexure JM-3.
18. In addition to a range of more advanced technical responsibilities, another employee (Senior Finance Analyst Forecast) had essentially the same responsibilities as the Applicant in relation to sales, administration and general expenses responsibilities but for the other 13 cost centres in the John Deere branch.
19. Amy and I identified that this split was inefficient and was adversely impacting the company. The split in responsibilities was causing issues with the sharing of information and knowledge gaps. We considered that it was necessary for one person to perform these duties for the entirety of John Deere.
20. To address this issue, our proposal was to split the position of Finance Analyst by technical experience and skillset rather than by areas in the business. The more technical aspects of the Finance Analyst position would be performed by a Senior Finance Analyst, who would continue to report directly to me. The less technical tasks would be moved into the new position of SA&G Accountant, who would report to the Accounting Manager.
21. We also reviewed the responsibilities of the Branch Accountant 2 and Assistant Accountant positions. The Assistant Accountant position was operating significantly over capacity, so we moved some of its responsibilities and some of the responsibilities of the Branch Accountant 2 position into a new position titled Asset Accountant.
22. On 25 August 2021, Amy and I presented the proposed new structure for the A&F Team to: my manager, Shane Edwards and the Head of People and Culture in Australia and New Zealand, Camilla Kelly. They approved us proceeding with the planning of the proposed restructuring process, including consulting with impacted employees.
As to redeployment, Mr Maione said there were two positions considered for redeployment: The SA&G Accountant role, and the Asset Accountant role. Mr Maione opined that Mrs Funtulis’ role as a Financial Analysist was quite different to these positions, due to having distinct responsibilities and being at a lower grade, with around a 20% reduction in pay.
Mr Maione stated:
“27. Under the proposed new structure, approximately 30% of the Applicant's Finance Analyst position was inherited by the SA&G Accountant position (although the initial higher level estimate was 20%, as the process evolved and additional planning and stress testing was done, I concluded that 30% represented a fairer estimate). A further 20% of the Applicant's responsibilities was moved into the Senior Finance Analyst (Forecast & PLR) position (which was already occupied by another employee). Approximately 30% of the responsibilities of the Applicant's Finance Analyst position were inherited by the Asset Accountant position, with the remaining responsibilities distributed amongst the A&F Team.
[…]
29. Additionally, in line with the directive from my manager, all of the positions in the A&F Team were expected to interact more with internal business managers and to provide them with high-quality advice to inform decision-making.
30. This was particularly the case for the positions of SA&G Accountant and Senior Finance Analyst (Forecast & PLR), which were the roles that had inherited about 30% and 20% of the Applicant's responsibilities as a Finance Analyst respectively.
31. Under the restructure, the SA&G Accountant and Senior Finance Analyst (Forecast & PLR) positions are required to proactively support and partner with all of John Deere's business managers.
32. We expected that, under the restructure, a significant proportion of the day-to-day duties of the SA&G Accountant and Senior Finance Analyst would involve communication with business managers and therefore require strong communication and interpersonal skills.
33. At 3:41pm on 20 September 2021, Amy emailed John Deere's Human Resources Manager, Jess Hart, (copying me in) a document setting out the key qualities required for the new SA&G Accountant and Asset Accountant positions. The majority of this document was drafted together in consultation by Amy and me, with Amy making some subsequent updates. The document provides that 'ability to partner and connect with the business' is important for both new positions. Additionally, the list of key qualities required for the SA&G position includes 'Trusted business partnering key success factor for this role' and 'Ability to influence business with facts and data – (critical for success) Influencing skills'. A copy of Amy's email and its attachment is attached at Annexure JM-6.
34. I had personally provided coaching and support for the Applicant since I joined the A&F Team to improve her professional interpersonal and communication skills, but the Applicant did not acknowledge that there was improvement needed.
35. I did not think that, even with substantial retraining, the Applicant could have developed the interpersonal and communication skills that were key requirements of the new vacant positions in the A&F Team. I continue to hold this view.
36. Additionally, as set out in paragraph 67 below, I understand that Jess Hart conducted a thorough review of whether the Applicant had the suitable training and experience to be redeployed to any other vacant positions within John Deere (including anywhere in Australia and New Zealand).
37. I also understand, as set out in more detail in paragraph 54 below, that Jess offered the Applicant the opportunity to meet with our Head of Talent and Acquisition, Trushna Veni, to determine if the Applicant could identify any vacant positions within John Deere that she considered she was suitable for.”
As to consultation, Mr Maione stated that he met with Mrs Funtulis on 14 October 2021 and Ms Hart via Microsoft Teams. Mr Maione stated that at the meeting she was informed that her position was being considered for redundancy and that the Respondent was entering a consultation process with her to seek feedback on the proposed redundancy. Mrs Funtulis was informed that they had considered the two new grade six positions being created in the A&F Team and all other vacant positions within John Deere and had not identified a position which they considered she could be redeployed to, even with reasonable retraining.
Mr Maione added that Mrs Funtulis was “distressed by this information and, in respect of our views about the lack of redeployment options available, said words to the effect that she did not want us making decisions for her.” Mr Maione indicated that he did not agree with Mrs Funtulis’ email following the meeting which purported to record the options offered to her.
On 18 October 2021, Mr Maione attended a further meeting with Mrs Funtulis and Ms Hart. Mr Maione stated:
“During the meeting, the Applicant asked for a status update about the proposed restructure and asked when she could expect the material she had requested in her emails in the preceding week. I explained we were still working through her emails and would respond in due course. I ended the meeting after about 10 minutes because I felt it was not constructive, due to the Applicant's repeated interruptions when Jess or I tried to speak.”
Mr Maione stated:
“65. Following my consideration of the two new vacant positions in the A&F Team and Jess's review of vacant positions in all of John Deere, I am confident that there were no positions available at the time of the Applicant's retrenchment which she could have been redeployed to.
66. As set out in paragraphs 26 to 35 above, Amy and I had considered at length whether the Applicant could be redeployed to the two new Grade Six positions in the A&F Team and reached the decision that, even with reasonable retraining, the Applicant could not perform these roles.
67. Further, as shown in Annexure JM-10, I understood from Jess that she had conducted a thorough review of all vacant positions in John Deere in Australia and New Zealand (including outside of the A&F Team) to determine where there was a role which the Applicant could be redeployed to.”
As to the present, Mr Maione stated:
“72. The A&F Team began transitioning to the new organisational structure on 1 November 2021, with the Financial Analyst and Branch Accountant 2 positions abolished. John Deere no longer requires anyone to work in those positions.
73. Additionally, from 1 November 2021, the 24 cost centres in the John Deere branch were streamlined and reduced to 22 cost centres.
74. While the new SA&G Accountant and Asset Accountant positions remain unfilled, their responsibilities are being temporarily shared between other employees in the A&F Team (after being temporarily undertaken by a short term contractor for two days).”
Reply statement of Mr Maione
Mr Maione provided a reply statement, relevant parts reproduced:
“4 I refer to paragraph 11 of the Applicant's statement. I disagree with the Applicant's contention that SIRD was pointless for the A&F Team and was used to retrench select employees. The organisational structure and allocation of roles and responsibilities within the A&F Team is vastly different today compared to prior to SIRD. For example:
(a) the CFO position has more direct reports than before SIRD. The positions which directly report to the CFO and Accounting Manager are also vastly different than before SIRD;
(b) the A&F Team is split into three distinct operational groups – Controlling and Compliance, Finance Operations (i.e., Accounts Payable) and Financial Planning & Analysis/Treasury/Tax. The functions of Financial Planning & Analysis/Treasury/Tax now report directly to the CFO. Prior to SIRD, these functions reported to the Accounting Manager;
(c) the Finance Operations function now reports to the Accounting Manager. Prior to SIRD, this function reported to the CFO via a position called Accounting Supervisor/Business Process Integrator which no longer exists in the current structure;
(d) the position of Risk and Compliance Analyst that existed before SIRD no longer exists in the current structure. Those tasks and responsibilities were absorbed by the team reporting to the Accounting Manager; and
(e) there were two people managers in the team before SIRD. However, there is now only one, the Accounting Manager.
5 I refer to paragraph 13 of the Applicant's statement. I cannot recall an exact date, but I recall stating at an A&F Team meeting that the restructuring process in connection with SIRD was complete. This comment was specifically in relation to SIRD and was in the context of the A&F Team's transition to their new post-SIRD roles. I also recall stating in the context of future restructures and career development / promotions at team meetings throughout the year words to the effect of, ‘Nothing can ever be 100% guaranteed’.
6 I refer to paragraph 21 of the Applicant's statement. My recollection is that the Applicant and the Accounting Manager, Amy Strong, were involved in a heated conversation around the provision of information to support monthly accounting journals. My recollection is that, after attempting to help defuse the situation during the conversation, later that day I provided some positive comments to both individuals as to how they resolved the disagreement. My comments on that day were related to the specific disagreement between the Applicant and Amy. To be clear, my view was that the Applicant did not have the necessary interpersonal and communication skills to perform any of the positions available at the time of her retrenchment, which were more important skills for the new roles than for the role she held at the time of being retrenched.
7 I refer to paragraph 55 of the Applicant's statement. I was aware that the Applicant had purchased a new property and had moved residences during the months preceding October 2021. On or about 22 October 2021, I told our Head of People and Culture, Camilla Kelly, that the Applicant had recently moved residences. However, I was not certain whether the Applicant had updated her address on the company record as I do not have access to John Deere Limited's (John Deere) personnel records. It is the employee's responsibility to ensure John Deere has their correct personal details on file.
8 I refer to paragraphs 57 to 60 of the Applicant's statement. I disagree with the Applicant's assessment in paragraph 58 that the position of SA&G Accountant is 'not much different' than the Applicant's previous finance analyst position. I refer to and rely upon my assessment of the differences between these roles as set out at paragraphs 26 to 32 of my previous statement. I also note the following:
(a) at paragraph 58(b), the Applicant states that the correction of miscellaneous billing only amounted to about 10% of her previous responsibilities. I agree with this estimate. The Applicant was only responsible for a fraction of John Deere's miscellaneous billing function. The miscellaneous billing function is a significant source of frustration and inefficiency for the broader John Deere business. To improve the efficiency of this process and better partner with the business, we are centralising all miscellaneous billing activities into the new SA&G Accountant position. The SA&G Accountant position is therefore responsible for considerably more of the overall miscellaneous billing function than the Applicant was responsible for previously;
(b) at paragraph 59(b), the Applicant states that, 'no work has disappeared' or has been identified as 'not to be by anyone'. I refer to and reply upon paragraph 27 of my previous statement which sets out how the responsibilities associated with the Applicant's previous position have been redistributed amongst the A&F Team. The Applicant's former tasks and duties are still being performed by the A&F Team as a whole, but the role she held at the time she was retrenched is no longer being performed by anybody;
(c) at paragraph 59(d), the Applicant states that approximately 70% of the responsibilities of her previous role have been moved into the SA&G Accountant position. I disagree with this assessment. I refer to and rely upon paragraph 27 of my previous statement which estimates that approximately 30% of the Applicant's previous role was inherited by the SA&G Accountant position. As John Deere has not currently filled the SA&G Accountant position, the vast majority of the Applicant's previous responsibilities which will be completed by the SA&G Accountant position are currently being temporarily managed by the Senior Finance Analyst (Forecast & PLR) in addition to their normal duties. If these responsibilities were 70% of the Applicant's previous role, the Senior Finance Analyst (Forecast & PLR) would be running at close to 200% capacity and this is not the case. Furthermore, the Senior Finance Analyst (Forecast & PLR) position has already made some of the efficiency gains we expected to realise following the restructure. For example, effective December month end close, the SA&G accounts are now ready to be approved and closed at month end by working day 2, rather than working day 3.
9 The Applicant's analysis at paragraphs 57 to 60 also fails to understand that the restructure of the A&F Team:
(a) changed how the A&F Team performs work so that the team is more efficient;
(b) will improve the quality of the work delivered by the A&F Team by ensuring we reduce re-work and provide more sophisticated and timely reporting; and
(c) will enhance the way in which we service John Deere by delivering the skills required to provide insight and partner with the business in decision-making processes.
10 I refer to paragraph 61 of the Applicant's statement. I am aware of two instances as part of the Smart Industrial Redesign (SIRD) where employees in the A&F Team were offered redeployment to a lower graded position, but their salaries were not reduced. In both cases, the incentive packages available to the employees were reduced to reflect their acceptance of a lower graded position. My position was also re-evaluated at a lower grade as part of SIRD. My understanding is that management followed guidance and direction from human resources on a case-by-case basis. For each potential redeployment, the key question was whether the employee could reasonably perform a vacant position, including a lower graded position. In relation to the Applicant, I formed the view that, even with reasonable retraining, the Applicant was not suitable for any vacant positions, including those at a lower grade.
11 I refer to paragraph 64 of the Applicant's statement. I also refer to and rely upon paragraph 26 of my previous statement. The Applicant could not be redeployed into the vacant SA&G Accountant and Asset Accountant positions not only because they were at a lower grade and lower rate of pay, but more importantly because, amongst other things, she did not have the interpersonal and communication skills at the level required to perform the roles within the new structure.
12 I refer to paragraph 71 of the Applicant's statement. I disagree with the Applicant's statement that the restructure was because Amy Strong had personal issues with her and the other employee who was retrenched. The drivers for the restructuring of the A&F Team are set out at paragraphs 12 and 13 of my previous statement.
Evidence given during the hearing
In evidence given during the hearing, Mr Maione stated that he took into consideration advice given by Ms Strong regarding Mrs Funtulis’ conduct in the workplace. Further, he stated that he witnessed Mrs Funtulis and Ms Strong engaged in a heated discussion. When he next spoke with Mrs Funtulis about the incident, he assumed she would have taken his feedback on board.
In cross-examination, Mr Maione answered Mrs Funtulis’ questions by stating that he had formed the view that where the new roles required the ability to build strong relationships with the teams, including gaining commitment and trust, Mrs Funtulis did not have, nor could she acquire those skills. He had wanted her to succeed; including securing a ticket for a professional event for her. However, he had received feedback from IT business partners that she was sometimes dismissive or was not responsive at all. Feedback from the forestry team was that Mrs Funtulis’ work was not of adequate quality and she was not reliable.
Mr Maione stated that he and the other decision makers would have been open to considering suitable options put forward by Mrs Funtulis, but on receiving her hostile communication, he considered that the issues between them had become too adversarial. He considered her statements about him to be false and damaging.
Further statements provided by the Respondent
During the proceedings, Mrs Funtulis sought for the Commission to require the attendance of certain persons before the Commission to give evidence in these proceedings. I did not ultimately make any orders, but the Respondent did agree to arrange for Ms Amy Strong, Accounting Manager, and Mr Shane Edwards to provide witness statements in these proceedings and to give evidence at the hearing.
Evidence of Ms Strong
Ms Strong stated that she has been employed with the Respondent for 14 years, having held various roles, but most recently as Accounting Manager, reporting to Mr Maione, in which she is:
“responsible for managing five people in John Deere's Accounting and Finance Team (A&F Team), consisting of two accountants who manage month-end reporting, statutory compliance, banking, and intercompany invoices and payments, and three accounts payable staff who process payments and expenses for the business. The A&F Team is currently advertising for the new positions of SA&G Accountant and Asset Accountant. I am currently responsible for managing the contractor who has been engaged to cover the overflow workload while we recruit these two positions. I will also supervise these positions when they are filled.”
As to the restructure, Ms Strong stated:
“7 I cannot recall the exact date, but at some point in July or August 2021, Jamie invited me to review the A&F Team's current structure and to propose a new team structure. We worked collaboratively to identify inefficiencies in the A&F Team and to develop a new structure that would streamline tasks and allow us to offer a better service to the business.
8. From my perspective, the main driver for the proposed restructure was Jamie's focus on improving the A&F Team's ability to partner with the business. This is critical to the success of John Deere. Jamie expects the A&F Team to step-up and improve our ability to proactively offer accounting-based insights to the business and guide its decision-making. We need to transform from a team that simply adds up the numbers at the end of the month to a more valuable business resource which can provide guidance based on accounting data. I understand that this focus is shared by Jamie's managers, such as Kevin Larson and Shane Edwards. I believe it is also part of a broader industry evolution in the role of finance professionals.
9 In addition to improving the A&F Team's ability to partner with the business, the proposed restructure was aimed at addressing various inefficiencies in the team structure including an unequal distribution of work amongst team members and an inefficient separation of related tasks across multiple positions. A key goal for me as part of the restructure was to ensure there was a sustainable distribution of responsibilities amongst my team.
10 Under the proposed restructure, the key changes Jamie and I proposed to make to the A&F Team's structure were:
(a) to combine all of the reporting, journals, analysis and forecasting responsibilities associated with selling, administrative and general expenses into one new position (the SA&G Accountant position). The SA&G Accountant would also be responsible for miscellaneous billing which was previously undertaken by Branch Accountant 2. Under our proposed new structure, this position would be a grade six position and would report to me;
(b) to combine all of the fixed asset responsibilities into one role (the Asset Accountant position). We also proposed to move the banking responsibilities previously completed by the Assistant Accountant into the Asset Accountant position. As with the SA&G Accountant position, the Asset Accountant position would be a grade six position and would report to me; and
(c) to move the parts free issues journals and chargebacks (distribution network system free issues) from the Branch Accountant position to the Assistant Accountant position. This change would streamline the intercompany chargebacks into one role.
11 I am not able to estimate what percentage of the Applicant's former responsibilities would be redistributed under the proposed restructure to the roles of SA&G Accountant or Asset Accountant, because I was not the Applicant's manager and did not have oversight over how her time was spent on her various responsibilities.
12 As part of the restructure, we proposed to add two more positions to the team, SA&G Accountant and Asset Accountant. We also proposed to make two positions redundant, Finance Analyst (SA&G) and Branch Accountant 2.
13 In addition to redistributing responsibilities in the team, under the proposed restructure, it would be built into the roles to provide more guidance and proactive support to the business. Under the proposed restructure, the A&F Team was expected to work more collaboratively with the business and for the restructure to actively change how they perform tasks on a dayto- day basis.
14 For example, under the proposed restructure, the Asset Accountant will be responsible for the fixed asset budget. My experience has been that, historically, the A&F Team has simply sent the budget template to the relevant operations team member and expected them to fill it in without assistance. Under the proposed restructure, the Asset Accountant would be expected to engage with the relevant operations team member and maintain an ongoing dialogue about how they are managing their budget. The Asset Accountant should be influencing how the fixed asset budget is completed to ensure it aligns with John Deere's goals for fixed asset expenditure. People can be very protective of their budgets. It requires a high level of interpersonal and communication skills to influence them to manage the budget differently from their previous practices. Similar skills are also required for the new SA&G Accountant position.
15 Consequently, under the proposed restructure, the A&F Team needs to have strong relationship building skills, so they can build rapport with the business. It is essential that they can communicate, build trust, and engage with the business in order to ensure the A&F Team is providing the service John Deere expects of the team.
Presentation on 25 August 2021
16 On 25 August 2021, I attended a meeting with Jamie's manager, Shane Edwards, the Head of People and Culture, Camilla Kelly, and Jamie to discuss the proposed restructure of the A&F Team.
17 My recollection of the meeting is that Jamie shared a PowerPoint presentation with Shane and Camilla which set out the current structure of the team and the proposed new structure. Jamie spoke through the reasons for the restructure and why we believed it would assist the team to meet the objectives set out at paragraphs 8 and 9 above. The meeting was predominantly run by Jamie. A copy of the email Jamie sent to Shane and Camilla after the meeting is attached at Annexure AMS-1.”
As to redeployment of Mrs Funtulis, Ms Strong stated:
“18 On 16 September 2021, I met with John Deere's Human Resources Manager, Jessica Hart, to discuss implementing the proposed restructure of the A&F Team. During this meeting, Jess explained the requirements for a restructure from a human resources perspective, including that we needed to consult with impacted employees and consider if we could redeploy them to the SA&G Accountant and Asset Accountant positions and any other vacant positions within John Deere.
19 Following my meeting with Jess, Jamie and I prepared a list of skills we considered would be essential to the SA&G Accountant and Asset Accountant positions. A copy of my email to Jess on 20 September 2021 with this list is attached at Annexure AMS-2.
20 On or about 28 or 29 September 2021, using the skills listed in Annexure AMS-2 as the basis, Jamie and I assessed whether we considered the Applicant had the skills necessary to be redeployed to the SA&G Accountant or Asset Accountant positions. My recollection is that we were particularly concerned that the Applicant did not meet the criteria of having demonstrated trusted business partnering or the ability to influence the business with facts and data. I formed the opinion that, if the SA&G Accountant and Asset Accountant positions were to meet the objective set out in paragraph 8 above, then, even with retraining, the Applicant was not suitable to be redeployed to the positions.
21 During the end of September 2021 and early October 2021, I attended several meetings with Jess, Jamie and Camilla to discuss implementing the proposed restructure, including Jess' plan for consulting with impacted employees. I recall that in one of these meetings we discussed potential redeployment options throughout the business for the Applicant and the other employee proposed for retrenchment. I was not directly involved in considering redeployment options throughout the business for the Applicant as Jess took the lead in identifying potential redeployment options and considering their suitability. My focus was also upon the other employee proposed for retrenchment rather than the Applicant as I was his manager.
Ms Strong disagreed with Mrs Funtulis’ statement that she had personal issues with Mrs Funtulis.
Evidence given during the hearing
In evidence given during the hearing, Ms Strong stated that Mrs Funtulis had not demonstrated evidence of building relationships, and in her opinion, these were not skills Mrs Funtulis could acquire. She considered that Mrs Funtulis did not have the relevant soft skills; instead, Mrs Funtulis was reactive only. The business needed the partnering to be proactive. She stated that the business did not require the partnering to be at the standard that Mr Maione himself exhibited, but did need the person to have strong interpersonal and partnering skills.
Evidence of Mr Edwards
Determination of s.389(2)
On the evidence before the Commission, I conclude that the Respondent was unjustified in concluding so very early that Mrs Funtulis could not be redeployed into one of the two available roles. Mrs Funtulis ought to have been afforded all opportunity to extensively discuss the roles and the remuneration attached to the roles, with the Respondent keeping an open mind as to her suitability to perform the roles. An organisation the size of the Respondent will, it is hoped, reflect on its future practices.
I conclude, however, that the manner in which Mrs Funtulis conducted herself from 14 October 2021 until when she learned of her dismissal was, to a large degree, extraordinary, hysterical, and unbalanced. Her conduct towards Ms Hart and Mr Maione was unfair and unprofessional. The accusations she made ought not to have been made.
Although I consider that the Respondent had already concluded that there was no suitable role to redeploy Mrs Funtulis into, and this was premature and unfair to Mrs Funtulis, I am satisfied that her subsequent conduct tipped her into the position of never being suitable for redeployment in either of the two available roles. This is so because Mrs Funtulis would, in my view, never accept the validity of the Respondent’s decision to make her role redundant, and would agitate hostility to those managers she would need to continue to work with and had insulted; Ms Strong and Mr Maione. Where Mrs Funtulis said during the hearing that she could work cooperatively with them, having observed Mrs Funtulis, I do not accept that she could. Mrs Funtulis had, in fact, threatened to involve Ms Hart and Mr Maione in litigation and name them individually.
Furthermore, I agree with the Respondent’s assessment that Mrs Funtulis lacks relevant interpersonal and communication skills required for the two roles and these are not skills that she could gain. Having observed Mrs Funtulis’ communication style, which I consider to be quite combative and aggressive, I accept Mr Maione’s evidence that he struggled with Mrs Funtulis when they met over recent years, with her, at times, and not all of the time, talking over him in meetings. I accept the Respondent’s evidence that Mrs Funtulis would not have been able to competently partner with the business in the way the Respondent required of the roles.
While Mrs Funtulis was entitled to attempt to convince the Respondent that she could meet the requirements of one of the two roles, I am satisfied that if the Respondent had considered Mrs Funtulis’ views on the matter, the Respondent would have reasonably concluded that these skills are lacking and are an important requirement of the role.
As for any available overseas roles, I accept that the Respondent was not interested in having that work performed in Australia, and I consider that approach to be reasonable.
For the above reasons, I am not satisfied that it would have been reasonable in all the circumstances for Mrs Funtulis to have been redeployed within the Respondent’s business or any of its associated entities.
Conclusion
The jurisdictional objection that the dismissal was a case of genuine redundancy requires two affirmative elements and one negatory element which must be satisfied, so as to establish whether a dismissal was or was not a case of genuine redundancy.
For all of the reasons set out above I am satisfied that Mrs Funtulis’ dismissal was a case of genuine redundancy because, as of 1 November 2021, when Mrs Funtulis learned of the dismissal:
· The Respondent no longer required Mrs Funtulis’ job to be performed by anyone because of changes in the operational requirements of its enterprise;
· The Respondent was not required to consult with Mrs Funtulis as she was not covered by a modern award or enterprise agreement; and
· It would not have been reasonable in all the circumstances for Mrs Funtulis to be redeployed within the Respondent’s enterprise or the enterprise of an associated entity.
The application is dismissed.
COMMISSIONER
[1] Jones v Department of Energy and Minerals [1995] IRCA 292, (1995) 60 IR 304 at page 308; cited in Ulan Coal Mines Limited v Howarth and Ors [2010] FWAFB 3488, (2010) 196 IR 32 at [17].
[2] Ulan Coal Mines Limited v Howarth and Ors [2010] FWAFB 3488 at [17].
[3] See McAlister v Bradken Limited [2010] FWA 203 at [31].
[4] See Kekeris v A. Hardrodt Australia Pty Ltd [2010] FWA 674.
[5] Technical and Further Education Commission (t/as TAFE NSW) v Pykett (2014) 240 IR 130 at [36].
[6] Ulan Coal Mines v Honeysett & Others (2010) 199 IR 363 at [28].
[7] See ‘Annexure JAH-3’ of the Statement of Jessica Hart dated 20 December 2021.
[8] Jones v Department of Energy and Minerals [1995] IRCA 292 (16 June 1995), [(1995) 60 IR 304 at p. 308 (Ryan J)]; cited with approval in Ulan Coal Mines Limited v Howarth and others[2010] FWAFB 3488 (Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32].
[9] Ibid.
[10] [2010] FWA 674.
[11] [2010] FWAFB 3488.
[12] (1995) 60 IR 304.
[13] Ulan Coal Mines Limited v Honeysett (2010) 199 IR 363 at [28].
[14] [2017] FWCFB 6847 at [20].
[15] [2014] FWCFB 714, (2014) 240 IR 130 at [36].
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