Chloe Cameron v ANZ Banking Group limited T/A ANZ

[2013] FWC 3929

[2013] FWC 3929

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chloe Cameron
v
ANZ Banking Group limited T/A ANZ
(U2012/14425)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 21 JUNE 2013

Application for Relief from Unfair Dismissal - Dismissal was not unfair.

Introduction

[1] On 23 October 2012, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Chloe Cameron (the Applicant).

[2] The Applicant gave evidence on her own behalf. Mr Owen McMahon the Director Project Delivery and Management, Global Markets and Ms Abigail Cooper a corporate lawyer seconded to the Respondent gave evidence on behalf of the ANZ Banking Group Limited (the Respondent).

Background

[3] The Applicant was employed by the Respondent on an ongoing basis from January 2007. Her substantive classification was a Group 5 Officer. From May 2010 the Applicant worked full time on the Single Dealer Platform project in a temporary Group 4 Business Analyst position. This position continued into 2011 and evolved into a further project known as Global Markets (the GMP project).

[4] In November 2011 the Applicant told her manager Mr McMahon that she wished to travel overseas and intended resigning her employment. Mr McMahon urged the Applicant not to resign and he offered the Applicant leave without pay (LWOP) until October 2012.

[5] The Applicant submitted a LWOP application and this was approved.

[6] The Applicant advised Mr McMahon by email in June 2012 that she would be able to return to work on 15 October 2012. She advised that she had a preference to return to a similar role as her role on the Single Dealer Project but she was open to other roles. 1

[7] Mr McMahon responded and advised the Applicant that he was keen to have her back but that he “would need to work through how we can absorb you back into the project so [he couldn’t] promise anything but [he would] work towards it.” 2

[8] On 28 August 2012, Mr McMahon advised by email that there was no position for the Applicant in the GMP project and he couldn’t see anything coming available in his broader portfolio.

[9] That email advised the Applicant as follows:

“I will continue to keep you in mind for BA roles however I wanted to give you a heads up ASAP to give you time to consider your options.

Also to confirm that given you’re on LWOP, the Bank is not required to hold your role open within Corporate Sales business. This means you will not be available for redundancy payout as per the policy.” 3

[10] The Applicant responded to this email and advised that she would try other areas of the Respondent and asked him not to close off her salary number as this could affect potential long service leave entitlements. Mr McMahon advised that her salary number would not be closed off until mid October in case things change or she obtains another internal position. 4

[11] In a further email the Applicant asked that her salary number be closed off effective 23 December 2011 to allow her to return the Respondent as a consultant 12 months after that date. Mr McMahon advised her that as she had not been retrenched the 12 month period did not apply.

[12] In September and October 2012, the Applicant sought advice from ANZ assist.

[13] On 3 October 2012, the Applicant advised Mr McMahan that she had advice from ANZ assist that the redeployment, redundancy and retrenchment policy applied regardless of her being on LWOP.

[14] On 4 October 2012, Ms Susan Siebar an ANZ Senior Employee Relations Advisor sent the Applicant an email in which she advised that she understood that the Applicant had been advised prior to her applying for LWOP that the ANZ had no obligation “to bring you back into the same role and therefore redundancy would not be paid.” 5

[15] In her response to that email the Applicant accepted that she understood that her “role would not be held open for [her] on [her] return” but said she was not told “that by being on LWOP [she] was no longer eligible from redundancy/redeployment.” She said this was not in LWOP policy or on the application form. 6

[16] In her reply on 9 October 2012, Ms Siebar advised that her role had not been kept open and “despite Owen’s genuine efforts to look for roles for [her] there are none currently available that are suitable. It is not ANZ practice to pay a redundancy in these circumstances.” 7 The Applicant was provided with online access to information about vacancies. The email further stated that “even with your resignation having taken effect on 1/10/12, ANZ would welcome you back at any time if you are able to find a suitable role.”

[17] I presume the date of “resignation” was said to be 1/10/2012 as this was the date that her LWOP was officially due to end. 8

[18] On 12 October 2012, the Applicant received her termination paper work which was dated 9 October 2012. It had a termination date of 1 October 2012. 9

[19] A significant issue in dispute between the parties is whether Mr McMahon told the Applicant before she applied for LWOP that if there was no position for her on her return the redundancy, redeployment and retrenchment policy did not apply to her.

[20] Mr McMahon gave evidence that when the Applicant told him that she wished to resign he checked with the human resources department about LWOP. He was told that if the Applicant was granted LWOP, ANZ had no obligation to return the Applicant to “the same (or any role) and that in the event that no suitable position was available at the expiry of the LWOP, [the Applicant] would not be eligible for a redundancy payment.” 10 This information is consistent with the advice Mr McMahon provided to Mr Compton, his manager when he sought his support for approving the LWOP option.11 When Mr Compton queried whether they would need to bring on a person on a short term contract to ensure the Applicant’s position was available upon her return he was advised that if there was no position for the Applicant on her return the Respondent “would not be required to pay a redundancy payment.”12

[21] Mr McMahon said he then had a further discussion with the Applicant and it was his evidence that he was certain he told the Applicant her position would not be held open and there was no guarantee of a return to her position; if that position was not available ANZ would look for another position for her; if there was no suitable role then she would not be eligible for redundancy. 13

[22] The Applicant denies that this conversation took place. It was the Applicant’s evidence that she had her first conversation with Mr McMahon in the morning in late November and a second conversation on the same day in the afternoon and she emailed her application the same day. 14 It was her evidence that Mr McMahon told her the next day that Mr Compton approved the leave.15

[23] The Applicant’s email to Mr McMahon enclosing her application is dated 2.11pm on 30 November 2011. Mr McMahon sent an email to Mr Compton at 4.59 pm on the same day recommending LWOP be approved. That was after Mr McMahon confirmed with HR that she would not be eligible for redundancy pay if there was no position for her upon her return.

[24] Mr Compton replied on the same day saying, “I’m very comfortable with this and it makes good sense.” Mr Compton further asked Ms Harle to confirm whether they could bring in a short term replacement to ensure that there was a position for the Applicant to return to.” Ms Harle advised both Mr Compton and Mr McMahon on 1 December 2011 that if there was no position for the Applicant there would be no obligation to pay the Applicant redundancy pay.

[25] On 2 December 2011, Mr McMahon sent another email, attaching the Applicant’s LWOP application, to Mr Compton seeking his sign off on the LWOP form. In that email he noted that the Applicant had been seconded from the VT desk 18 months ago and because she had made it clear that she had no interest in returning to the VT desk they did not hold her substantive position open. He therefore advised that the Applicant’s position did not exist but on her return they would look to place her into GMP or a similar type BA role. He further pointed out that if there were no role for her on her return the bank would not have to pay her redundancy pay. 16

[26] On 8 December 2011, Mr McMahon again asked Mr Compton if the leave was approved and on the same day Mr Compton advised that he thought Mr McMahon could approve it, but he sent it off so it could be processed. 17

[27] It was Mr McMahon’s evidence that in the time between 30 November and 9 December he spoke to the Applicant about the delay and told her it was because Mr Compton “wanted to be sure we don’t have to leave a position open and that Chloe wouldn’t be - or we wouldn’t have to pay out a redundancy in the end.” 18

The issues in dispute.

1. Was the Applicant aware that if there was no position available for her on her return that her employment would end?

[28] The Applicant read the LWOP policy. It provided that “if an employee takes more than four weeks leave without pay, ANZ will endeavour to return them to their previous position, but there is no guarantee of this.”

[29] The Applicant’s evidence about her understanding of the policy was inconsistent. In her evidence in chief she stated that there was no guarantee of a return to her previous position. 19 However she said she did not understand that she was not guaranteed “any role in the Corporate Sales Business.” 20 In cross examination she resiled for that position and said that she thought she could return to a position of her choosing or at least to the GNP project.21

[30] I do not accept that the Applicant could reasonably have understood that the LWOP policy provided her with a guaranteed return to her previous position or even the project. However I accept that she understood that the Respondent would try to find her a position if her position was not available.

[31] I find that the Applicant expected there to be work for her upon her return because Mr McMahon had been the one to suggest she take LWOP so that they could retain her as an employee. I do not accept that the Applicant was ever told that she was guaranteed a job on her return. This is what she presumed and in the circumstances that existed at the time that was not an unreasonable assumption. However, that is not what the policy said.

[32] There was nothing in the policy about what happened if the Applicant’s position was not available. However for the reasons set out below, I accept she was told by Mr McMahon that she would not be eligible for redundancy pay and as such she knew that one possibility was that she would no longer be employed by the Respondent.

2. Was the Applicant told that if there was no position available for her on her return that that she was not eligible for redundancy pay?

[33] I accept Mr McMahon’s evidence that this was something he was concerned about at the time. I do so because it is clear from the paper trail that Mr McMahon received advice that there would be no obligation to pay redundancy pay. There were repeated references to this in the emails exchanged at the time. The paper trail supports Mr McMahon’s evidence that the Applicant was not told immediately that the LWOP had been approved. There was no reason for Mr McMahon to chase up Mr Compton if the application had been approved on 1 December.

[34] I prefer Mr McMahon’s evidence that he told the Applicant that if there was no position for her upon her return she would not be entitled to redundancy pay.

3. What was the Applicant’s position?

[35] At the time she went on LWOP the Applicant’s substantive position was not the position she occupied prior to going on LWOP. The Respondent had seconded the Applicant to a project and had backfilled her substantive position because the Applicant had made it clear that she had no interest in returning to that position. 22

[36] However that does not change the Applicant’s substantive position. The Respondent was under no legal obligation to maintain her secondment and could have returned her to her substantive position upon completion of the project.

4. Did the Respondent have a position for the Applicant upon her return?

[37] It was Mr McMahon’s evidence that the Applicant’s position had been filled by another employee (A). 23 It was his evidence that A had been “sitting in Chloe’s seat since the beginning of the year.”24 While it was put that A was a trainee, Mr McMahon said she was “mature graduate that was sitting in that role doing a very, very good job.”25 It was his evidence that the work being done by this employee was “quite different to the work that Chloe was doing and she’d built up a whole lot of IP around that.” 26 It was his evidence that it made no sense to move her from the position. The evidence established that A was offered an ongoing position as an Associate Business Analyst on 13 August 2012. Her substantive classification was the same as the Applicant’s but this was a lower classification level than the one occupied by the Applicant prior to her going on LWOP.

[38] It was Mr McMahon’s evidence that the work the Applicant had been doing “had finished up and we were starting a new project. So Chloe would have rolled into this new project and then subsequently built the skills from there. So A was pretty much in a similar type of position as Chloe.” 27

[39] Mr McMahon rejected the proposition that the Applicant’s position didn’t exist when she went on LWOP. 28

[40] It was put to Mr McMahon that the Respondent should not have offered A an ongoing position in August 2012 as they knew that the Applicant was returning. It was his evidence that it would have been detrimental to the project to remove A from the project and replace her with the Applicant. 29

[41] He also rejected the suggestion that the Applicant could have replaced a contractor. 30

[42] The project on which the Applicant had been working changed during her absence.

[43] Mr McMahon gave evidence “The GMP project review was completed towards the end of August 2012” and the project team was to be reduced by 40%. Mr McMahon considered positions for the Applicant in other parts of the business. In particular he considered whether there was work in other projects within his portfolio but there was no position “commensurate with [the Applicant’s] specific skills set.” 31

[44] He made further inquires with 2 other business units but one of those business units was also facing reductions in staffing levels.

[45] There was no evidence that Mr McMahon looked more broadly within the Respondent’s business for a position for the Applicant. Ms Shaw, the Workforce Manager GMP sent him an email on 30 August saying that she would look for a position for her in IIB “if she is worth fighting for - just let me know and I can see what I can find her.” 32 There is no evidence that Mr McMahon followed this up. It was his evidence that he did not send the Applicant’s CV to anyone.33 Further he did not make contact with the ANZ redeployment unit.34 It was Mr McMahon’s evidence that he didn’t approach them because the Applicant was not being made redundant.35

[46] While I accept that the Respondent did not have a position for the Applicant in the GMP project, there is insufficient evidence before me to conclude that the Respondent did not have any position for the Applicant. Mr McMahon made certain assumptions about what positions might be suitable for the Applicant but it is clear from the Applicant’s evidence that she would have considered roles in other areas of the Respondent’s business.

5. Was the Applicant’s position redundant?

[47] The Applicant submitted that her position was redundant. It is not clear what position the Applicant was referring to, her substantive position or her position in the project.

[48] The Respondent submitted that the Applicant’s position was not redundant. The Respondent submitted that A occupied the Applicant’s position. However on Mr McMahon’s evidence the positions on the project were evolving. I do not accept that A was doing the same job as the Applicant was doing when she left. However I accept that had the Applicant not taken LWOP her position would have evolved into the position occupied by A.

[49] Neither party addressed the issue of whether A’s substantive position was the relevant position. The only evidence before the Tribunal about that position was that it had not been held open for the Applicant during her secondment because the Applicant had made it clear that she did not want to return to that position. The Applicant was on notice that this was the Respondent’s evidence and she did not lead any evidence to the contrary.

[50] I am unable to conclude that the Applicant’s position was in fact redundant. On balance I find that A occupied the position the Applicant would have occupied had she not taken LWOP and as such it cannot be said that the Respondent no longer wanted the Applicant’s job to be done by anyone.

[51] There were no submissions that this was a case of a genuine redundancy within the meaning of the Act. 36

Protection from Unfair Dismissal

[52] There is no dispute, and I am satisfied that the Applicant had completed the minimum employment period, and is covered by the ANZ Collective Employment Agreement 2010—2012. Consequently, I am satisfied the Applicant was protected from unfair dismissal.

[53] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the Act.

Harsh, unjust or unreasonable

[54] Having been satisfied of each of s.385 (a), (c)-(d) of the Act, I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[55] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

Valid reason - s.387(a)

[56] The Respondent submitted that as the decision to terminate the Applicant’s employment was not related to the Applicant’s capacity or conduct this criterion is neutral.

[57] The Applicant submitted that there must be a valid reason for the termination of employment and in this case there is not one and therefore the Respondent has “fallen foul of s387(a). 37

[58] To support this submission that Applicant relies upon a number of decisions that deal with redundancy. The Applicant noted the decision of the Full Bench in UES International Pty Ltd v Leevan Harvey 38 in which the majority determined:

“[42] As we have already indicated, in our view the reasons for the dismissal of Mr Ball by UES were not related to his capacity or conduct (including its effect on the safety and welfare of other employees). Accordingly, there cannot have been and was not a valid reason for his dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). In the circumstances of this case we regard it as a neutral matter with respect to our consideration as to whether Mr Ball’s dismissal was harsh, unjust or unreasonable.”

[59] The Applicant submitted that in that matter Senior Deputy President Kaufman found that section 387(a) of the Act was still relevant. It is worth noting that Senior Deputy President Kaufman said as follows:

[67] Although s 387(a) requires Fair Work Australia to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct, consideration of whether there was otherwise a valid reason is not precluded and, in my view, in appropriate circumstances, ought to be considered under s387(h).

[60] While I was taken to single member decisions where, in similar situations, findings have been made about whether there was a valid reason for the dismissal, this Full Bench decision is authority for the proposition that where the reason for the dismissal is not related to the employee’s conduct or capacity, this is a neutral consideration. However I do accept that the reason for the dismissal is a matter that should be taken into account under s.387(h). For example, a dismissal for an unlawful reason is not related to an employee’s conduct or capacity but would still be a relevant matter in deciding if the termination was harsh, unjust or unreasonable.

[61] As the decision to terminate that Applicant’s employment was not related to her conduct or capacity I consider that this is a neutral criterion.

Notification of the valid reason - s.387 (b) and Opportunity to respond - s.387(c)

[62] Because I have determined that there was no valid reason related to the Applicant’s capacity or conduct these are also neutral criteria.

Unreasonable refusal by the employer to allow a support person - s.387 (d)

[63] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present. However in this case there was no request and no refusal.

Warnings regarding unsatisfactory performance - s.387 (e)

[64] As the termination was not due to unsatisfactory performance this criterion is neutral.

Impact of the size of the Respondent on procedures followed - s.387 (f)

[65] The size of the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.

The Respondent is a large employer both parties submitted this criterion had no relevance.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387 (g)

[66] The Respondent had dedicated human resources management specialists and both parties submitted this criterion had no relevance

Other relevant matters - s.387 (h)

[67] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[68] The Applicant submitted that I should have regard to the Applicant’s work history and her legitimate expectation that there would be a job for her when she returned from leave. It was also submitted that I should have regard to the fact that the Applicant’s employment was terminated without notice and she was not paid her statutory or contractual notice. Further, I should have regard to the failure of the Respondent to make reasonable efforts to redeploy the Applicant and that it failed to comply with its obligations under its industrial instrument.

[69] The Respondent submitted that in November 2011 the Respondent bestowed a real benefit on the Applicant by granting her leave without pay. It was submitted that the Applicant knew that her position was not guaranteed.

[70] The Respondent’s LWOP policy makes it clear that there is no guarantee that an employee will be able to return to his or her position if the employee takes more than 4 weeks LWOP. It must use its best endeavours to do so. The policy does not oblige the Respondent to find another position for the employee. If there was such an obligation it must be found elsewhere.

[71] I do not accept the submissions of the Applicant that the industrial instrument imposed such an obligation. The Agreement only obliges the Respondent to redeploy an employee if his or her job has become redundant. I am unable to conclude on the evidence that the Applicant’s position became redundant.

[72] The Applicant submitted that the she was not offered a position on her return because the Respondent was reducing its costs and she was seen “as an easy target because not only would her termination serve the head-count reduction directive but because there was a mistaken belief that ANZ would not even have to give her a redundancy payment.” 39 This allegation was not put to Mr McMahon.

[73] I do not accept these submissions. The Applicant was not offered a position upon her return because the nature of the project had changed in her absence and there was no position for her in the project. The position she would have filled was being done by someone else. She knew before she went away that this was a possibility.

[74] I have found that the LWOP policy did not require the Respondent to return the Applicant to her previous position. I found that the Respondent did attempt to find the Applicant another position albeit I have found that the Respondent could have done more.

[75] The Respondent advised the Applicant on 31 August 2012 that her payroll number would be closed off in mid October 2012. Despite an agreement that her LWOP would run until 15 October 2012 the Respondent treated the Applicant’s employment as coming to an end on 1 October 2012.

[76] While I have some sympathy for the Applicant, given she fully expected to return to employment with the Respondent, I do not consider the decision to terminate her employment was invalid. The Applicant was made an offer. She could take LWOP under certain conditions. One of those conditions was that she was not guaranteed a return to her position. Another condition was that if there was no position she would not be entitled to redundancy pay. It is clear that she would not have been offered LWOP if these conditions had not been accepted. The Applicant in those circumstances could have resigned her employment.

[77] The Respondent terminated the Applicant’s employment because it considered it had an agreement with the Applicant that if there was no position for her upon her return from LWOP her employment would come to an end and she would not be entitled to redundancy pay. As it had no position it made the decision to dismiss the Applicant. That reason is sound, defensible and or well founded. 40

[78] No formal notice of termination was ever provided to the Applicant. This may be because the Respondent treated the Applicant as having resigned her employment. However the Applicant did not resign her employment. This means her employment was terminated by her employer and it was done without written notice to her. In many circumstances this would be unfair. However the Applicant was told one month before that her employment would end at the expiry of her LWOP. While I make no findings about any legal obligation to pay the Applicant in lieu of notice that may exist, in all the circumstances, even if the Applicant was entitled to pay in lieu of notice, the failure to pay the notice is not sufficient to tip the balance in favour of a finding that dismissal was harsh, unjust or unreasonable.

Conclusion

[79] Having considered each of the matters specified in s.387, I am not satisfied the dismissal of the Applicant was harsh, unjust or unreasonable. Accordingly, I find the Applicant’s dismissal was not unfair and the application is dismissed. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Mr M. Willoughby-Thomas - Representative of the Applicant

Ms C. Symons - Representative of the Respondent

Hearing details:

2013

Melbourne

May 6

 1   Exhibit A3 at attachment 6

 2   Ibid

 3   Ibid

 4   Ibid

 5   Ibid at attachment 8

 6   Ibid

 7   Ibid

 8   Ibid attachment 4

 9   Ibid attachment 9

 10   Exhibit R6 at [9]

 11   Exhibit A3 at attachment 8

 12   Exhibit R6 at OM2

 13   Ibid at [14]

 14   Transcript PN 550

 15   Ibid PN 469

 16   Exhibit R6 at OM 5

 17   Exhibit R6 at

 18   Transcript PN 1020

 19   Exhibit A3 at [26]

 20   Ibid

 21   Transcript PN 532 and PN 576

 22   Exhibit R6 at OM5

 23   Transcript PN 1165

 24   Ibid PN 1167

 25   Ibid PN 1168

 26   Ibid PN 1168

 27   Ibid PN 1222

 28   Ibid PN 1223

 29   Ibid PN 1224

 30   Ibid PN 1242

 31   Exhibit R6 at [25]

 32   Exhibit A8

 33   Exhibit A8 and Transcript PN 1308

 34   Transcript PN 1309

 35   Ibid PN 1315

 36   See Section 389

 37   Transcript PN 1434

 38   [2012] FWAFB 5241

 39   Exhibit A1 at [33]

 40 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 ay 373

Printed by authority of the Commonwealth Government Printer

<Price code C, PR537991>