Christopher Coffey (First Applicant) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (Second Applicant) v Telstra Corporation Pty Ltd t/a..
[2021] FWC 2595
•11 MAY 2021
| [2021] FWC 2595 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Christopher Coffey
(First Applicant)
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)
(Second Applicant)
v
Telstra Corporation Pty Ltd t/a Telstra
(Respondent)(C2021/1971)
DEPUTY PRESIDENT MANSINI | MELBOURNE, 11 MAY 2021 |
Application to deal with a dispute in accordance with a dispute procedure in an enterprise agreement.
[1] This decision relates to an application made under section 739 of the Fair Work Act 2009 (Cth) (Act) and the dispute resolution procedure at clause 25 of the Telstra Enterprise Agreement 2019-2021 (Agreement).
[2] The Agreement covers: Telstra; Telstra employees, including Mr Coffey; and the CEPU.1
[3] In February 2021, Telstra decided to reduce the number of roles within its Field Services team by reason of decreasing work on NBN assets. The operational decision is not in dispute. This dispute concerns Telstra’s selection of Mr Coffey for redundancy which was upheld via Telstra’s internal appeal process.
Jurisdiction and the issue for determination
[4] The application identified that the dispute relates to clause 40 - Group Redundancy, in particular clause 40.3 - Selection Process, of the Agreement. It also identified that the internal appeal process at clause 43 had been followed but did not resolve the matter.2 The relevant clauses are extracted in full at Annexure A to this decision.
[5] Pursuant to clause 43.7, the dispute was escalated to step 4 of the disputes procedure at clause 25, for conciliation before another Member of the Commission. As there was no resolution, the dispute was referred to me with a request for expedited determination before Mr Coffey’s placement period comes to an end.
[6] It is not contentious that the pre-requisites of clause 25 of the Agreement have been followed.
[7] As to the task, Telstra said the scope of the Commission’s power to resolve the dispute is confined by the parties’ agreement and in these circumstances limited to whether the internal appeal process miscarried.3 Telstra characterised the issue for determination by the Commission as:
Was the decision of the internal decision maker who reviewed Mr Coffey’s selection for retrenchment under clause 43.3 of the Telstra Agreement open to the decision maker and not plainly unjust or unreasonable? (the Question)
[8] At the hearing, the Applicants did not necessarily agree with such a narrow interpretation of the scope of the Commission’s power. Nonetheless, they asked the Commission to determine that the answer to the Question posed is “no” for the reasons in their original application and submissions.
[9] In the particular circumstances of this matter, I am satisfied that there is jurisdiction to resolve the dispute by way of arbitration pursuant to s.739 of the Act and the agreement of the parties in accordance with the term at clause 25 of the Agreement. I am also satisfied, particularly with regard to the views of the parties, that by answering the Question the dispute will be resolved, in a manner that is consistent with the provisions of the Agreement.4
Factual context
[10] The following facts are not contentious and/or were not challenged in evidence:
a) Mr Coffey was employed as a Telstra Field Service Technician since October 2016, working in the Gippsland, South East region of Telstra’s Field Services area. He was an elected health and safety representative.5
b) On 3 February 2021, Telstra announced its initial operational decision to reduce the number of positions in Field Services. The decision was communicated to Mr Coffey and his direct manager (Mr Glenn Alexander, Field Services Lead) that same day.6
c) During February 2021, there was consultation about the initial operational decision.7
d) On 24 February 2021, Mr Alexander learned the outcome of consultation was a decision that his team of thirteen Field Services Technicians would be reduced by one role. He told his team that there would a be a “group redundancy” selection process and that employees who wished to make a submission could do so by email to him.8
e) On 25 February 2021, Mr Alexander called for expressions of interest in voluntary redundancy and emailed his team an overview of the selection criteria.9
f) Prior to the final selection for redundancy:
• were two applications for voluntary redundancy. Ms Megan Waugh (Field Services Manager and Mr Alexander’s manager) decided not to accept the applications for voluntary redundancy because one was outside of scope and a strong performer and the other was on secondment after returning from a long term injury.10
• Alexander completed a “desktop assessment tool” for each of the thirteen technicians in his team. The tool contained four criteria (Business Outcomes, Behaviours, Essential Skills and Capability, Commercial), rated on a scale from one to five, producing a total score out of a possible twenty, by which the thirteen employees were ranked from one to thirteen.11
• Alexander met with a “peer review committee”, comprised of five Telstra employees senior to and at Mr Alexander’s level, with responsibility for Field Services in other areas. The committee was given a draft of Mr Alexander’s selection matrix and they asked questions about his proposed ratings, particularly the lowest and highest rankings. Some amendments were made with the committee’s input and the desktop assessment selection matrix was sent by Mr Alexander to Ms Waugh for submission to human resources. Mr Coffey was ranked lowest at thirteen.12
g) On 17 March 2021, Mr Coffey was advised of his selection for redundancy but was not given a copy of the selection matrix.13
h) On 24 March 2021, Mr Coffey appealed his selection, specifying nine reasons (extracted in full at Annexure B to this decision).14
i) On 1 April 2021, the outcome of Mr Coffey’s appeal was delivered by decision of Ms Barber (HR Specialist). Ms Barber consolidated the nine reasons into four summary grounds and decided to uphold the selection of Mr Coffey.15
j) On 9 April 2021, this application was lodged with a request for an urgent conference.
k) On 3 May 2021, a conference before another Member of the Commission did not resolve the matter and Mr Coffey’s “placement period” was extended by agreement such that the redundancy is due to take effect at 5pm on 11 May 2021.16
l) The matter was then allocated to me and a program set for urgent hearing on 8 May 2021 and determination prior to the expiry of Mr Coffey’s placement period.
The respective contentions
[11] The Applicants contend that the internal appeal process lacked justification of the result and independence. They say it was deficient because not all of Mr Coffey’s nine reasons appear to have been considered, there was a failure to understand Mr Coffey’s role, Mr Coffey was not given a fair opportunity to have his say in relation to the appeal grounds or to have a representative present. It is also alleged that the group redundancy process was not fair and objective, including because: Telstra failed to consider a voluntary redundancy application; Mr Coffey was given limited information and was not given an opportunity to input via a self-assessment; the assessment was done in secret and lacked transparency; it was infected by bias on account of a history of interpersonal conflict with Mr Alexander, Mr Coffey’s role as health and safety representative and his injury.17 The Applicants rely on the application, their written submissions filed in accordance with the directions and oral submissions made at the hearing.18 Mr Coffey did not give evidence to the Commission.
[12] Telstra maintains that it faithfully followed the appeal process in accordance with the agreement struck by the parties and recorded at clause 43 of the Agreement. It brought evidence of Ms Barber about how she conducted the appeal process and what she took into account in arriving at the conclusion that Mr Coffey’s selection should be upheld. The evidence of Ms Barber was not challenged. Telstra also filed evidence of Mr Alexander in answer to the allegations. Mr Alexander gave evidence at the hearing, including under cross examination and in response to inquiries of the Commission.
Consideration
[13] The Question is: Was the decision of the internal decision maker who reviewed Mr Coffey’s selection for retrenchment under clause 43.3 of the Telstra Agreement open to the decision maker and not plainly unjust or unreasonable?
[14] The appeal process at clause 43 affords substantial discretion to Telstra but importantly at clause 43.4(a) requires a degree of independence in that the person conducting the appeal must not have been involved in the original decision. Ms Barber is a Telstra human resources professional who was allocated the appeal and was the internal decision maker responsible for the review. Her unchallenged evidence is that Mr Coffey and his manager were not previously known to her and she was not involved in the matter until 26 March 2021 (after the selection decision).19 I accept this to be true.
[15] The appeal process at clause 43.3 provides that Telstra will “review” an appeal by an employee and give the employee an opportunity to have their say, although “how and when this occurs is up to Telstra (acting reasonably)”.20 Telstra is also required to give the employee (appellant) an opportunity to have their say and only consider the reasons set out in the appeal.21 Ms Barber described her process in handling appeal is typically: perform some background research about the employee’s employment status and contract; make contact with the employee and collect information from them; speak to the manager or managers involved and obtain all relevant documents; if necessary, speak to other parties and have a further discussion with employees if necessary; analyse the information and come to a conclusion and document this in a report, before contacting the employee to inform them of the outcome; then provide the employee with a copy of the report and inform the managers of the outcome.22 The process followed in relation to Mr Coffey’s appeal is set out in the following paragraphs.
[16] It was Ms Barber’s unchallenged evidence that, on 26 March 2021, she telephoned Mr Coffey to arrange a time for him to discuss his appeal and invited him to bring a support person but he requested that the discussion proceed immediately and so it did, in the absence of a support person. The evidence was that the discussion took one hour and six minutes, in which time they covered all nine grounds of Mr Coffey’s appeal. Mr Coffey was invited to but did not request a second discussion, produce any further documents for Ms Barber’s consideration, nor had he produced documents for Mr Alexander’s consideration that could be considered on appeal.23 Whilst it may ordinarily be considered reasonable to schedule a time for the discussion to enable Mr Coffey time to prepare and invite a support person, on the evidence before the Commission, Mr Coffey was afforded the opportunity to do so and pressed for an immediate discussion. I find that he was given a reasonable opportunity to have his say in relation to the appeal.
[17] Ms Barber’s appeal decision summarised Mr Coffey’s reasons, on the face of the decision “to the most salient information”, subsequently explained as “under four groupings by common issues”.24 It is understandable that the Applicants perceived that each of Mr Coffey’s nine reasons were not addressed given the appeal decision referred to just four numbered grounds. However, on a close analysis of the appeal decision together with Ms Barber’s explanation in evidence, I am satisfied that all nine of Mr Coffey’s reasons were considered by Ms Barber albeit addressed by way of four summary grounds or themes in her decision.25 For completeness, there is no suggestion of consideration given by Ms Barber to any other reasons.
[18] The outcome of Ms Barber’s review was a conclusion that Mr Coffey’s selection for redundancy be upheld. On the face of her decision, Ms Barber considered the requirements at clause 40.3 of the Agreement relevant to Mr Coffey’s appeal.26
[19] First, that Telstra will ask for applications for volunteers within the group and consider any applications before selection is completed (clause 40.3(b)). On the evidence there were two applications for voluntary redundancy. Ms Barber gave evidence that she inquired with Ms Megan Waugh, the decision maker in this respect, who explained her consideration and provided reasons for her decision not to allow a voluntary redundancy. Ms Barber considered and correctly identified that there is no requirement in the Agreement for Telstra to accept an application for voluntary redundancy. Nor is there any such requirement in a current redundancy policy of Telstra. I consider it was reasonable and open to Ms Barber to uphold the selection of Mr Coffey notwithstanding volunteers were declined.
[20] Second, that Telstra will fairly and objectively rank employees in the group, using merit-based criteria, and will not consider anything other than ranking when deciding who will be selected for redundancy (clause 40.3(c)). Ms Barber’s evidence is that she reviewed the desktop assessment selection matrix completed by Mr Alexander and considered the criteria and evidence used were fair, objective and closely associated with the role. Ms Barber also spoke on two separate occasions with Ms Waugh, Mr Coffey’s “two-up manager”, satisfied herself that there had been a peer review committee process in completing the matrix and obtained copies of performance documentation and employment records which aligned with the content of the matrix regarding Mr Coffey.27 However, in this case, Ms Barber did not discuss the selection matrix with Mr Alexander (as Mr Coffey’s direct manager and assessor) because he had undergone surgery (and presumably was not available in sufficient time for her to complete the decision within ten business days and before her own leave).28 Whilst it may have been reasonable, and consistent with her usual appeal process, for Ms Barber to discuss the role and the selection matrix with Mr Alexander or at least the committee member(s) involved in its completion, I accept that a comparison of the selection matrix with the role description, records of Mr Coffey’s employment and performance from the human resources system and the input of Ms Waugh supports Ms Barber’s decision on review, provides reasonable justification for Mr Coffey’s selection and is consistent with a merit-based process.
[21] Ms Barber’s unchallenged evidence was that she had regard to Mr Coffey’s allegations of bias, interpersonal conflict and harassment (and specific allegations of being targeted due to his request for a tailored vehicle to suit his injury, taking of personal leave, workers’ compensation claim, unfair consideration of end of year performance ratings). Mr Coffey’s appeal grounds did not contend that Mr Coffey was selected because of his role as elected health and safety representative, rather the appeal grounds contended he was perceived as “a troublemaker” and alleged it was through that role that Mr Alexander was observed to have harassed and bullied employees. By her inquiries of Ms Waugh and searches of Telstra’s human resources systems for disciplinary records, end of year ratings, other performance notes, any complaints made and any advices provided, Ms Barber found no support for these allegations.29 Whilst again it may have been reasonable for Ms Barber to have a direct discussion with Mr Alexander, Ms Barber did speak with Ms Waugh who was able to provide relevant information and her enquiries established some objective facts which underpin her conclusion. The evidence now before the Commission includes that an alternate vehicle to accommodate Mr Coffey’s request was approved and being sourced prior to the operational decision and commencement of the selection process and Mr Coffey did not make a workers’ compensation claim until after his selection for redundancy was confirmed.30
[22] Further, the Commission has had the benefit of hearing directly in evidence from Mr Alexander. Mr Alexander transparently told the Commission that he has not had recent training in use of the desktop assessment tool. However, he is an experienced manager with twenty-four years’ relevant experience at Telstra and a good understanding of the role of Field Services Technician. I considered him to be an honest witness whose evidence was unwavering in describing a fair, merit-based process which balanced Mr Coffey’s skills, experience and performance with that of the others in the group of thirteen employees ranked. Mr Coffey’s ranking was un-affected by unfair considerations (for example, his inability to complete training due to the COVID-19 pandemic). On the evidence before the Commission, the allegations of bias and taking into account irrelevant considerations are not made out.
[23] The evidence established that Mr Coffey was provided with required information, including the selection criteria. But Mr Coffey’s score and assessment from the selection matrix and some of the other records produced in evidence to the Commission were not provided to Mr Coffey during the appeal process. Mr Coffey contends he was unreasonably prejudiced by this, and it is understandable that he feels this way. With the benefit of that information at an earlier stage in the process, Mr Coffey may have been better placed to assess whether there was any merit to this dispute. However, there was no requirement for Telstra or Ms Barber to provide this information to Mr Coffey as part of the agreed appeal process at clause 43 of the Agreement. Nor is there any such requirement in a current redundancy policy of Telstra.
[24] Ms Barber also considered that there was no invitation to Mr Coffey to submit a self-assessment and correctly identified that there is no requirement in the Agreement to do so. And, notwithstanding that it does not form part of the Agreement and is expressly contemplated in the Group Redundancy Process – Australia policy, neither is it a requirement of a current redundancy policy of Telstra.
Resolution
[25] For the above reasons, I find that the answer to the Question posed is “yes”: the decision of the internal decision maker who reviewed Mr Coffey’s selection for retrenchment under clause 43.3 of the Telstra Agreement was open to the decision maker and not plainly unjust or unreasonable.
[26] In all of the circumstances, I find the process and outcome of the review was reasonable. The Agreement affords substantial discretion to Telstra in selection for redundancy and on review. An analysis of the process followed by the internal decision maker reflects that Telstra acted reasonably in its review of Mr Coffey’s selection and in giving Mr Coffey an opportunity to have his say as required by clause 43.3. To the extent that I have identified some additional steps that might reasonably have been taken, those matters were not required and do not alter my conclusion. For completeness, having analysed the evidence and heard from the original assessor I do not identify any basis to find that Mr Coffey was selected other than on merit-based criteria, fairly and objectively ranked against his team members in accordance with (or otherwise contrary to) the selection process at clause 40.3.
DEPUTY PRESIDENT
Appearances:
Mr J Ellery for the Applicants.
Mr M Tamvakologos for the Respondent.
Hearing details:
2021.
Melbourne.
May 7.
Printed by authority of the Commonwealth Government Printer
<PR729639>
Annexure A
40. GROUP REDUNDANCY
40.1. Sometimes Telstra may need to reduce the number of employees in a group who are performing the same job.
40.2. If Telstra needs to do this, Telstra will tell the employees in the group and the Telstra Union entitled to represent those employees and explain the reasons for the reduction. Telstra will do this as soon as practicable after making the decision and before any retrenchments happen.
40.3. Selection process
a) This process applies for selections for group redundancies other than where clause 47 applies.
b) Telstra will ask for applications from volunteers within the group and consider any applications before selection is completed.
c) Telstra will fairly and objectively rank employees in the group, using merit-based criteria. Telstra will not consider anything, other than your ranking, when deciding who will be selected for redundancy,
d) Telstra will tell you if you have been selected. This will generally happen no later than 21 calendar days after you were originally told that a reduction in roles is required.
e) If your role is redundant you will commence the Placement Period set out in Section 9, unless Telstra accepts your application for a voluntary redundancy. In these cases, clause 46.2(a) will apply.
[…]
42. WHAT HAPPENS IF TELSTRA DECIDES YOUR ROLE IS REDUNDANT?
42.1 If Telstra tells you that your role is redundant or has accepted your application for voluntary redundancy, Telstra will then advise you when the Placement Period is likely to commence and its expected end date.
42.2 In some instances, if you have been told that your role has been selected for redundancy or your application for voluntary redundancy has been accepted, you may not commence the Placement Period straight away. However, in the meantime, you will be encouraged to apply for roles within Telstra and Telstra will also seek to identify suitable roles into which you may be appointed by Telstra.
42.3 If you have been told that your role is selected for redundancy, you can lodge an appeal against your redundancy within 9 calendar days, unless your redundancy is because of a site function closure (see clause 43 “Appeals” below).
43. APPEALS
43.1. If you are selected for redundancy, including in accordance with 40.4, you may appeal your selection unless your redundancy arises because of a site function closure.
43.2. You must lodge an appeal within 9 calendar days of being notified of your selection, setting out why you are appealing your selection. Telstra will only consider reasons set out in your appeal.
43.3. Telstra will review your appeal and give you an opportunity to have your say. How and when this occurs is up to Telstra (acting reasonably) and Telstra will not delay the appeal process if you fail to take up a reasonable opportunity to have your say.
43.4. The person dealing with the appeal must:
a) not have been involved in the original decision;
b) make a decision within 10 business days of you lodging your appeal; and
c) tell you what that decision is.
43.5. The decision will be either to confirm your selection or to set the selection aside. If it is set aside, your case will be sent back to the manager who selected you for redundancy to determine their decision again following any recommendations that are made.
43.6. During the appeal process:
a) Telstra will not retrench you; and
b) you must still participate in the Placement Period if it has commenced.
43.7. If you wish to dispute an appeal decision, you may use the dispute resolution process (see Section 6) which will start at Step 4.
43.8. This clause does not apply to a decision by Telstra to appoint you to another suitable role.
Annexure B
Attachment 4 – Appeal grounds – application in accordance with cl 43 of the EBA
Chris Coffey, Appeal Grounds – (submitted as an attachment to the web based form)
1. The rating was not objective nor fair. The rater had previously exhibited numerous instances of bias relating to my injury and disability. This has culminated in a dispute over the provision of a suitable vehicle to perform my role safely and without injury. I am sure i am perceived by the team leader and my new area manager as a trouble maker, and the resulting rating reflects that.
2. After a number of years of disputed performance ratings, there has been no development of myself in my role despite numerous requests - particularly lines training, enhanced services work, tech labs and leadership training.
3. In my role as elected OH&S rep (for the last 2 years) I have had requests for advice from my fellow workers relating to harassment by this Team Leader, particularly relating to sick leave notifications that were not (reluctantly) referred to T/L (as he was the cause). This T/L behaviour indicates the wide held view that the T/L is a bully and incapable of providing a fair and objective assessment.
4. I have not, despite requests, been supplied with a breakdown of my rating score against the merit based criteria, supposedly used to rate me. Refer attached email from Megan Waugh (Area manager)
5. No provision was made to provide me with the merit based selection criteria PRIOR to the selection process. The process was totally non-transparent, and clearly breached the notion of procedural fairness.
6. No discussion/meeting was had with me regarding the rating process, and no opportunity was provided to input to the decision making process. This completely denied me procedural fairness.
7. The rater and myself have had considerable personality conflicts over a number of years, particularly the last 6 months. This could not have led to a fair and objective rating, free from bias.
8. I have been limited in my ability to put together an appeal because I have not been provided with appropriate feedback over my performance. I have only been provided with a brief verbal indicaton during a meeting that my problem was "behaviour" - no mention of any lack of performance. The 2 items they raised were late submission of leave forms and allegedly late starts (which conflicts with the EBA provisions regarding start/finish times in unpaid time)
9. A volunteer was available to accept redundancy, so the group selection process should have halted.
1 Respective “Parties” to the Agreement, to the extent the Agreement applies to them, see clause 4 of the Agreement; regarding CEPU coverage see also [2020] FWCA 3097.
2 Application filed 9 April 2021, at items 1.4 and 2.4.
3 Citing Towns v Australian Capital Territory[2018] FWC 4271, drawing on Australian Federated Union of Locomotive Enginemen v State Rail Authority of NSW (1984) 295 CAR 188; Peraic v Australian Capital Territory[2019] FWC 3510;and Evans v Rail Commissioner [2020] FWC 448.
4 s.739(5) of the Act.
5 Telstra’s Initial Response filed 29 April 2021 at 1; Witness Statement of Mr Glenn Alexander at 27(a).
6 Witness Statement of Mr Glenn Alexander at 5.
7 Witness Statement of Mr Glenn Alexander at 6.
8 Witness Statement of Mr Glenn Alexander 7 and 8.
9 Witness Statement of Mr Glenn Alexander 8, 10 and Annexure GFA-1.
10 Witness Statement of Ms Claire Barber at CLB-3; Mr Glenn Alexander at the Hearing on 8 May 2021.
11 Witness Statement of Mr Glenn Alexander at 11.
12 Witness Statement of Mr Glenn Alexander at 16 to 18.
13 Orally, see Witness Statement of Mr Glenn Alexander at 20. Also advised in writing on 18 and 22 March 2021, see Witness Statement of Ms Claire Barber at Annexure CLB-4.
14 Annexure 4 to the Application filed 9 April 2021 and Witness Statement of Ms Claire Barber at Annexure CLB-5.
15 Witness Statement of Ms Claire Barber at Annexure CLB-5.
16 Confirmed at the Hearing on 8 May 2021.
17 Items 2.1 and 2.4 of the Application filed 9 April 2021.
18 Including a complete record of Attachment CC-3, handed up at the Hearing of 8 May 2021.
19 Witness Statement of Ms Claire Barber at 10 and 28(c).
20 Clause 43.3 of the Agreement.
21 Clauses 43.3 and 43.2 of the Agreement.
22 Witness Statement of Ms Claire Barber at 7.
23 Witness Statement of Ms Claire Barber at 11 to 14 and 28(b), Witness Statement of Mr Glenn Alexander at 9.
24 Witness Statement of Ms Claire Barber at Annexure CLB-5 and Ms Barber at 28(a).
25 Attachment A to Respondent’s Submissions filed 7 May 2021.
26 Witness Statement of Ms Claire Barber at CLB-5.
27 Witness Statement of Ms Claire Barber at 10, 16 and 17.
28 Clause 43.4(b) of the Agreement; Witness Statement of Ms Claire Barber at Annexure CLB-3.
29 Witness Statement of Ms Claire Barber at 19, 22.
30 Mr Alexander in evidence at the Hearing on 8 May 2021.
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