David Scholz v Charles Darwin University

[2016] FWC 8764

[2016] FWC 8764

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Scholz
v
Charles Darwin University
(U2016/2336)

COMMISSIONER BISSETT MELBOURNE, 14 DECEMBER 2016

Application for relief from unfair dismissal – genuine redundancy – redeployment not reasonable – application dismissed.

[1] Mr David Scholz (the Applicant) was employed by Charles Darwin University (the University) as the Deputy Director of the Office of Research and Innovation from March 2013. In October 2015 the Office of Research and Innovation was subject to a restructure and Mr Scholz’ position was declared excess. Mr Scholz was subject to redeployment but, not having been successfully placed, he was dismissed by reason of redundancy on 29 April 2016.

[2] Mr Scholz says that his redundancy was not a genuine redundancy and has made an application for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the FW Act).

[3] Mr Scholz does not claim that his position was not genuinely redundant but rather that it would have been reasonable in all of the circumstances to redeploy him within the University (s.389(2)(a)). For this reason he says he was unfairly dismissed.

[4] Mr Scholz was employed at the Higher Education Worker (HEW) 10 level. He seeks reinstatement and, whilst acknowledging that his previous position no longer exists, believes there is a role he could perform at HEW 10 level.

The redeployment process

[5] The redeployment process applicable at the University is set out in clause 65.10-18 of the Charles Darwin University Union Enterprise Agreement 2013 1 (the Agreement) and states as follows:

65 REDUNDANCY PROVISIONS

Redeployment

65.10 Redeployees will be offered counselling by OHRS about their rights and responsibilities (in the presence of their representative/s if so requested) and the opportunities relating to retraining and other career opportunities.

65.11 Redeployees will be considered for job vacancies elsewhere in the University with respect to:

65.11.1 skills/qualifications, background and experience;

65.11.2 designation/classification level;

65.11.3 salary level (allowances, or loadings and other like payments would continue to apply only if applicable);

65.11.4 expressed desires in respect of alternative employment;

65.11.5 re-training requirements; and

65.11.6 preferred work location.

65.12 The maximum redeployment period is six (6) months from the date of written notification.

65.13 Redeployees will be provided with suitable employment for the duration of the redeployment period and may involve being placed in one or more positions.

65.14 “Suitable employment” does not include a placement in a lower classification unless agreed.

65.15 If a fixed-term placement is arranged alternative financial arrangements will normally be negotiated for that period with the cost-centre in which the placement is made.

65.16 If a redeployee unreasonably rejects an offer of suitable employment the Vice-Chancellor may terminate the employee’s employment with notice in accordance with the Act.

65.17 Where a redeployee is unable to be placed in suitable employment or retrained, the redeployee may be retrenched in accordance with this Agreement.

65.18 The University maintains the right to deploy staff to undertake duties within any organisational unit. Such deployment would normally:

65.18.1 only occur after discussion with the employee or work group concerned;

65.18.2 be at the employee’s substantive classification level; and

65.18.3 where it was determined that the employee had the necessary knowledge, skills and relevant experience to satisfy the selection criteria for the position to which they are assigned, or as a staff development initiative.

[6] Mr Scholz says that during his redeployment period (between October and April 2016) 15 positions were identified which were within the scope of his skills and experience. In this time, he says that the only position offered to him was that of Manager – Adult Migrant English Programme at the lower level of HEW 8/9.

[7] Mr Scholz’s evidence is that at the time he opted to be redeployed however, Ms Lee Upton, the then Director of Human Resources Services (HRS), advised him that:

● Up-coming vacancies at the HEW 9 and HEW 10 would be monitored;

● Prior to advertising, the relevant organisational unit would be informed of the redeployment register;

● Staff members on the redeployment register would be considered for vacancies;

● Reasonable retraining options would be considered;

● If a reasonable match was determined, the redeployee would be engaged in the position and subsequently appointed if he or she proved to be capable and content in the role.

[8] Mr Scholz says that this is how the process worked when he was offered the position of Manager – Adult Migrant English Programme but was not used again.

[9] Ms Upton was the Director of HRS until December 2015. Her evidence is that she was fully responsible for managing redundancies and redeployment at the University although says that HRS staff involved in managing the redeployment process were the Employee Relations Team, Recruitment, WH&S and herself as the Director HRS. Her evidence is that the process followed for redeployment was more based on custom and practice than policy and entailed:

● Staff member to be redeployed provided her with a copy of their CV;

● Each time a position became vacant, or a new position was created that might be a match, she discussed this with the Strategic Recruitment Review Committee (SRRC).

[10] With respect to Mr Scholz, Ms Upton says that she provided his CV to the recruitment team so they could flag roles that came up that would suit his skills and capabilities. She also discussed Mr Scholz’s case at the SRRC and with the Chief Operating Officer (COO).

[11] Ms Upton says that through the process, a position in the adult migrant area was identified as suitable for Mr Scholz. He ultimately rejected that position.

[12] Ms Upton also gave evidence of another redeployee – ‘Mr P’ – whose redeployment she managed. She said that each time a position came up at or just below Mr P’s level, that she thought would be a good fit with his skills, knowledge and experience, she would discuss his case with the SRRC about whether to approve advertising the vacancy or placing someone into the role.

[13] Ms Upton says that the Vice Chancellor/COO decided that newly created positions in HRS did not need to be approved by the SRRC and that the recruitment for those positions would be managed by Ms Carol Watson, Interim Director of HRS, who replaced Ms Upton at the beginning of November 2015.

[14] Mr Scholz had personal leave in January and February 2016. He says that in early March 2016 he contacted the Office of People and Capability (OPC – previously HRS) and was told that just because he was on the redeployment register did not mean he was automatically considered for all HEW 10 roles but that he would need to apply for positions that he considered he was suited to.

[15] Mr Scholz responded to this email by correspondence to Ms Carol Watson in which he complained that his matter was being dealt with by a ‘junior staff member’ and reiterated his view as to the redeployment process.

[16] Mr Paul Morris was employed in the position of Senior Industrial Relations Manager at the University between June and November 2015. He says that he was responsible for monitoring positions that might be suitable for Mr Scholz but was not the only person with that responsibility.

[17] Ms Carol Watson is the Director of OPC. She says she became aware of Mr Scholz’ situation in the second half of November 2015 when she commenced attending case management meetings.

[18] Ms Watson chaired the weekly case management meetings and says that Mr Scholz’s situation was considered at those meetings.

[19] Ms Watson also says that in late March/early April she requested a list of all vacancies at HEW 10. She says that, after considering the position profiles on the list, an assessment was made that Mr Scholz ‘would not be a suitable candidate for the positions based on qualifications and experience requirements in the selection criteria’ 2 except for the positions of Programme Manager – Adult Migrant English, and Knowledge Broker but that Mr Scholz had declined to apply for either position.

[20] Ms Watson wrote to Mr Scholz on 14 April 2016 in which she responded to the matters he had raised in his email of 21 March 2016. Further, she advised him of all vacant HEW10 positions that had recently become available. The letter concluded:

As you have access to current job vacancies at the University, you are in a far better position to make an informed decision as to whether or not you have an interest in any position, prior to thereafter assessing your suitability against the skills, qualification, background and experience requirements. 3

[21] Having advised Mr Scholz of this, Ms Watson concluded by advising him that, in the absence of any suitable position, his position would come to an end in 16 days’ time on 30 April 2016.

[22] Ms Watson gave evidence that Mr Scholz’ redeployment was considered each week in case management meetings. She said that any suitable vacancies would be identified and raised with Mr Scholz by a member of the case management team. She said that Mr Scholz being ‘interested’ in a position did not mean he had the sufficient skills to be able to be redeployed into the position.

Positions Mr Scholz expressed interest in

[23] In October 2015 Mr Scholz was contacted by HR and notified of a vacancy in the Vocational Education and Training (VET) Faculty with the Adult Migrant English Programme. Mr Scholz says a copy of his CV was sent to the chair of the selection panel, he was then invited by the chair for a discussion with herself and the relevant manager. At the meeting, the role was explained to him and he was offered the role as a redeployee.

[24] After some consideration, Mr Scholz rejected the position due to it being at a lower level (it was a position at HEW 8/9), the lack of career trajectory and because it was a limited 18 month position.

[25] Mr Scholz says that as of 9 March 2016 there were three positions at HEW 10 or HEW 8/9 that he considered himself suitable for. These were:

● Knowledge Broker – Research Institute for Environment and Livelihoods (HEW 8/9);

● Manager – Office of Strategic Procurement (HEW 10);

● Manager – Organisational Capacity (HEW 10).

[26] Mr Scholz says that application for the first two vacancies closed the day he discovered them but it was arranged that he have a further two days to make any application. Given the limited time, he decided to apply only for the Manager – Office of Strategic Procurement position as this was at his level of HEW10.

[27] On 18 March 2016, Mr Scholz says he received an email which said ‘I am writing to advise you that your application for the position of Manager – Office of Strategic Procurement was successful. I will be in touch with you next week to organise a time for your interview.’ A copy of this email was not provided to the Commission so the statement of Mr Scholz could not be verified. Mr Scholz was, however, subsequently interviewed and assessed along with two other candidates. He was not successful.

[28] Mr Scholz believes that, as a redeployee and with some retraining, he should have been trialled in the role.

[29] Mr Ken Suter, Chief Financial Officer for the University, was the chairperson of the interview panel for the position of Manager – Office of Strategic Procurement. He said that on 9 March 2016 he received an email from Sherry Price in OPC, seeking an extension of time within which Mr Scholz could make an application which was granted. On receipt of the application, Mr Suter forwarded it to the rest of the interview panel. Mr Suter says that Mr Scholz was interviewed:

because he does have management experience and it was decided that we should interview Mr Scholz to determine if he did have the procurement background and experience which could make him suitable for the position. 4

[30] Mr Scholz was interviewed for the position and subsequently advised that his skills and experience did not fulfil the position requirements with respect to knowledge of statutory requirements in relation to procurement and in using a purchasing application within an integrated financial system. Whilst he met some of the criteria, he was unable to fulfil the essential technical skills and experience requirements of the position.

[31] Mr Suter said that the position is the most senior procurement position at the University and would be responsible for managing multi-million dollar contracts and procurement projects.

[32] Mr Suter says that the interview process enabled Mr Scholz to expand on his application. He said that, whilst Mr Scholz was a redeployee, he expected that he would have the necessary technical skills to enable him to fulfil the requirements of the position and he did not have them.

[33] In particular, Mr Suter said that while Mr Scholz could speak of the relevant processes at an operational level, the position required the management of strategic procurement at a senior level. 5

[34] Mr Suter gave evidence that the panel did consider if Mr Scholz could fulfil the requirements of the position with a reasonable period of training:

… In those sorts of roles, we expect the applicant and person who is appointed to have the necessary technical skills in that sphere and the necessary background to undertake the task at that level. Mr Scholz didn’t demonstrate he could do that. We would expect an applicant who wasn’t from the university to require training in the university’s own systems and processes, but that would be the amount of training we would expect at that level.

In relation to Mr Scholz, if he had been put in that position, do you have an estimate of how long it would take for him to reasonably get up to speed?-All the applicants that we have interviewed in this role, we will expect to have some 10 to 15 years’ experience with procurement with at least five years in a senior position. 6

[35] Mr Suter said that a background in procurement was important for the position:

this is a senior position and the person to be able to fill it needs to show that they have been able to undertake the requirements of the position. We’re not going to just appoint someone who doesn’t have that background. 7

[36] His assessment of Mr Scholz was:

I think you need to look at the job description in totality and as we pointed out, he did not have the experience or background in purchasing at a senior level. He just did not have it. 8

[37] Mr Suter said that he wanted to select the best person of the job regardless of the University’s redeployment requirements.

[38] Mr Scholz also applied for the position of Manager – Organisational Capacity. He received advice, without interview, that he had not satisfactorily demonstrated ability against five of the essential criteria. Mr Scholz believes (but has no evidence) that he was assessed against other applicants in reaching this decision. Ms Watson’s evidence is that Mr Scholz was considered for this position prior to assessment of any other applicants. The panel in that instance concluded that there was a range of criteria he could not fulfil. Ms Watson provided Mr Scholz with written feedback on where he failed to meet the essential criteria for the position.

Other vacancies

[39] In March 2016 Ms Watson requested her team to put together a list of all positions at the HEW 10 level that were vacant from December 2015 to the time of her request. That list identified 14 positions. The list ultimately covered the period during which Mr Scholz was a redeployee and included positions he had been considered for. 9

[40] The assessment of Mr Scholz’ suitability for each position would have been determined by staff in OPC from time to time. The decision in the ‘[s]uitable’ column (yes/no) was determined by assessing his skills and experience against the requirements of the vacancy. 10

[41] Ms Watson said that Mr Scholz’s skills and experience were more suited to a generalist management role as opposed to a technical role. She said that the critical question would always be whether he had the ability to fulfil the essential requirements of the position. If a generalist position had come up, Mr Scholz would not have been required to go through a competitive selection process but would have met with the relevant area and been placed in the position. 11

[42] Ms Watson said that the assessment of Mr Scholz’ suitability would be based on whether he could do the position after a reasonable amount of training. She said that while there may be disagreement over what was suitable, Mr Scholz was not precluded from applying for any vacancy he wished.

[43] Ms Watson also said that, as a redeployee, Mr Scholz was expected to submit a full application for any position. She said:

People need to sell themselves in terms of a vacancy and that’s been the practice in every university that I have been in. And what we actually - as well as the CV, you’re asking people to look at the criteria and put their own assessment of how well they fulfil that. Otherwise, I think people don’t get - don’t get a full opportunity to put their case and their best foot forward. 12

[44] She said that for a job where Mr Scholz was not considered as a ‘redeployee’ he could apply and have his application considered along with other applicants.

Current status

[45] Mr Scholz says that, prior to leaving the University, Ms Upton instigated a process of engaging an outplacement support organisation to assist him. This was then taken over by Ms Watson who arranged for SHK Outplacement Services (SHK) to provide him with assistance. He says that SHK are Melbourne based and he has not met face to face with the consultant.

[46] Ms Watson says that the outplacement service offered to Mr Scholz with SHK is well in excess of the requirements of the Agreement and that he will have access to their services until he finds alternative employment, even if he has left the University.

[47] During the redeployment period, Mr Scholz was seconded to the Office of the Pro-Vice Chancellor – Indigenous Leadership (OPVC-IL). This position was from October 2015 to April 2016.

[48] After Mr Scholz’s termination, a position became available in OPVC-IL. Special approval was sought and gained for Mr Scholz to fill this position. 13 The position was a fixed term position.

Submissions

[49] The NTEU, representing Mr Scholz, submits that Mr Scholz’s dismissal was unfair because the University failed to apply the redeployment process correctly. It submits that it would have been reasonable to redeploy Mr Scholz and the University failed to do so.

[50] The NTEU submits that the only position offered to Mr Scholz was the Manager – Adult Migrant English Programme but this was at a lower level (although Mr Scholz had indicated he would consider positions at HEW 9) and was for a fixed term only whereas Mr Scholz was employed in an on-going capacity.

[51] The NTEU says that, at the time Ms Watson replaced Ms Upton as Director of HRS, the redeployment process was altered without consultation with the NTEU or employees of the University as required under the Agreement. Following this, the University failed to consider Mr Scholz for redeployment and placed the obligation on Mr Scholz to find positions and required him to compete in redeployment with all applicants for a position.

[52] The NTEU submits that the University had an obligation to play an active role in the redeployment of Mr Scholz and it failed to meet this obligation. It says that it is reasonable that Mr Scholz could have been redeployed into the majority of positions identified by the University. 14 The University’s failure to place Mr Scholz into any of these positions was unreasonable and this was compounded by the change in process for redeployment instigated by the University without consultation.

[53] The University submits that the task of the Commission is not to consider the redeployment process of the University but to determine if there was a position the Applicant could have been redeployed into.

[54] In any event, the University says the redeployment process in the Agreement does not give preference in placement to redeployees but only provides that a redeployee will be considered for a vacancy.

[55] The University submits that the position of Deputy Director, Office of Research and Innovation (HEW 10) previously occupied by Mr Scholz was no longer required to be done by anyone. The position was abolished and the duties of that position have been redistributed to the Director and the Administration and Finance Officer and a newly created position of Executive Officer (HEW 8/9).

[56] The University also submits that it has met the consultation obligation of the Agreement in relation to the redundancy. It contacted the NTEU, provided details of the proposed change, provided the change proposal to staff, explained the change to staff and to Mr Scholz and had a further meeting with Mr Scholz to enable further consultation.

[57] The University says that during the redeployment period for Mr Scholz, the OPC monitored alternative positions and evaluated Mr Scholz for suitability. It submits that if Mr Scholz did not meet the essential criteria for a position, he was ruled out of redeployment to the position although he could still apply for such a position through the normal selection process. It submits that this is in line with the process Ms Upton described for “Mr P” where she assessed his skills, knowledge and experience against likely positions. 15

[58] Mr Scholz was considered for three positions during the redeployment period. He was found unsuitable for the positions of Manager – Office of Strategic Procurement and Manager – Organisational Capacity because he did not have the necessary technical skills.

[59] He was deemed suitable for the Manager – Adult Migrant English Programme but ultimately declined the position because it was at a lower level and it was for a fixed term.

[60] He elected not to apply for other positions that were otherwise advertised on the University intranet.

[61] In relation to the position of Manager – Office of Strategic Procurement, the University submits that the evidence of Mr Suter is clear, that a person who could not meet the technical requirements of the position – in particular selection criteria 5 and 6 (contemporary knowledge of statutory requirements and best practice in relation to procurement and travel and experience in using a purchasing system with a fully integrated financial system 16) – could not and would not be able to perform the role without extensive experience.

[62] In relation to the Manager – Organisational Capacity position, the University submits that Mr Scholz did not meet the essential requirements of the position.

[63] For the other positions that were considered for Mr Scholz, the University submits that six of the positions arose prior to the alleged change in the redeployment process – that is, whilst Ms Upton was in charge – and Mr Scholz was deemed suitable for only one of those positions. For the remaining positions which arose in 2016, Mr Scholz makes no claim now that he could have performed those roles except for the Manager – Office of Strategic Procurement position.

[64] The University submits that the outplacement service that has been provided to Mr Scholz has been extremely generous and is designed to maximise his ability to gain employment on an on-going basis.

Findings

[65] Section 385 of the FW Act states:

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.

[66] In this case, the University says that the dismissal of Mr Scholz was a case of genuine redundancy.

[67] A dismissal is a genuine redundancy if the provisions of s.389 of the FW Act are met. Section 389 of the FW Act states:

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.

Section 389(1)(a) – Did the employer no longer require the job to be performed?

[68] In Jones v Department of Energy and Minerals, 17 Ryan J said that:

it is within the employer’s prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. It is inappropriate now to attempt an exhaustive description of the methods by which a reorganisation of that kind may be achieved. One illustration of it occurs when the duties of a single, full-time, employee are redistributed to several part-time employees. What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant… 18

[69] I am satisfied that the job done by Mr Scholz was no longer required by the University to be done by anyone. The duties that made up Mr Scholz’s job were re-distributed amongst a number of other staff. His job was abolished.

Section 389(1)(b) – Did the University meet the consultation obligations?

[70] I am satisfied that the University has met the consultation obligations under the Agreement.

[71] That some change may have been made to the redeployment process and that this was not subject to consultation (although I make no specific findings on this) does not affect my findings in relation to whether the University complied with its obligations to consult about the redundancy.

Section 389(2) – Would it have been reasonable to redeploy Mr Scholz?

[72] A determination of this matter requires that two issues be considered. Firstly, what is the redeployment obligations of the University under the Agreement and second, would it have been reasonable to redeploy Mr Scholz.

Redeployment obligations under the Agreement

[73] The redeployment process in clause 65 of the Agreement states that redeployees will be considered for job vacancies taking into account a number of factors.

[74] The Agreement further states that ‘[w]here the word “will” is used in conferring a power, that would shall be construed as meaning it is the intention of the parties to exercise the power’. 19

[75] Taking into account this definition, it is apparent that it is the intention of the parties that a redeployee, such as Mr Scholz, is to be considered for vacancies that align with the factors set out therein. The decision to consider Mr Scholz for redeployment is however constrained by those factors. That is, the requirement to consider Mr Scholz is not at large but is limited by:

● skills/qualifications, background and experience;

● designation/classification level;

● salary level (allowances, or loadings and other like payments would continue to apply only if applicable);

● expressed desires in respect of alternative employment;

● re-training requirements; and

● preferred work location. 20

Skills/qualification, background and experience

[76] Ms Watson’s evidence was that if Mr Scholz did not have the appropriate skills and qualifications he would not be considered for redeployment to a position. This approach is consistent with the approach taken by Ms Upton when she was the Director of HRS. She said, of Mr P, that if he had the knowledge and experience, she would discuss his case with the SRRC to determine if he should be ‘placed’ or the identified position advertised.

[77] This appears to be what occurred in relation to the Manager – Adult Migrant English Programme (although the position was advertised, Mr Scholz was considered before other applicants) where an offer was made to, but ultimately rejected by, Mr Scholz.

[78] In an email to OPC on 8 March 2016, Mr Scholz indicated three positions he considered were suitable for him to be redeployed into. It appears that he was advised to lodge applications for each of these (the closing date for applications for two positions were extended for this purpose) but it is not apparent that he was considered for redeployment into each of these positions outside the normal competitive selection process. That is, having indicated an interest it is not apparent that OPC, or anyone else at the University, considered Mr Scholz against each of the matters in clause 65.11 of the Agreement (and set out in [75] above) to determine if he was suitable to be redeployed into any of those positions. There is, for example, no evidence that any consideration was given to any re-training that might affect his ability to fulfil the requirements of the positions. To the extent this might have been considered in relation to the Manager – Office of Strategic Procurement, it was only done within a competitive selection process.

[79] This failure to consider Mr Scholz for redeployment outside of the competitive selection process and against each of the criteria in clause 65.11 would appear to be a major flaw in the University’s redeployment process. While the Agreement is silent on when a redeployee is to be considered in the context of an advertised vacancy, redeployment, by its nature, must be considered outside the competitive selection process. This does not mean that a person found not suitable for redeployment cannot then enter the competitive process, but no longer as a ‘redeployee’.

[80] There was a determination that Mr Scholz’s skills and qualifications did not align to the degree necessary with the two positions he believes he could do (Manager – Office of Strategic Procurement and Manager – Organisational Capacity) such that it was not considered reasonable for him to be redeployed into them. This assessment was made in the line area responsible for each of the positions after each position was advertised and, in the case of Manager – Organisational Capacity, before anyone else was interviewed. In relation to the Manager – Office of Strategic Procurement position, Mr Scholz was interviewed for the position (along with other applicants) and, on this basis, it was determined his skills, qualifications and experience did not match such that redeployment was not an option.

[81] Whilst I appreciate that Mr Scholz does not believe he was given appropriate consideration for a number of other positions (outside the three mentioned), he does not appear to have indicated any interest in those positions. Interest is necessary (but not sufficient) to be considered for redeployment. Mr Scholz could not take a totally passive role in the process. He needed to put his hand up when he identified a position that he considered suitable so that OPC could then provide the necessary assistance.

[82] Having said that, the OPC cannot half manage the redeployment process nor can they undertake their task without some direct communication with the redeployee beyond telling the person to put in an application for a job.

Designation/classification level

[83] Mr Scholz indicated that he was prepared to be considered for positions at HEW 9 and HEW 10. This did occur and he was not considered for redeployment to other levels.

[84] That a position Mr Scholz was interested in being redeployed into was at HEW 10 or HEW 9 does not mean that he was automatically suitable for redeployment into the position. There is nothing in the redeployment process of the Agreement that would suggest such criteria should outweigh all other considerations.

Salary level

[85] There is nothing to suggest that Mr Scholz’s salary level was a factor in considering him or not for vacancies or otherwise.

Expressed desires

[86] Mr Scholz was considered for redeployment in relation to positions he expressed an interest in. He indicated an interest in relation to four positions, the Manager – Adult Migrant English Programme, 21 Knowledge Broker,22 Manager – Office of Strategic Procurement23 and Manager – Organisational Capacity24 although ultimately did not put in an application for the Knowledge Broker. `

[87] I accept that an interest in a position alone is not enough to satisfy the requirements for suitability for redeployment into a position.

Re-training requirements

[88] In addition to my comments above, the re-training requirements of Mr Scholz were considered as part of his application for redeployment to the position of Manager – Office of Strategic Procurement. Mr Suter was clear that, without the necessary skills, extensive experience would be necessary to enable a person to undertake this role.

[89] There is no evidence before me that there was any consideration of Mr Scholz’s capacity to undertake the role of Manager – Organisational Capacity with appropriate training. Ms Watson’s evidence is that Mr Scholz could not meet five of the essential criteria for the position but she said nothing of whether he could do so with training.

[90] Further, there is no evidence of any further consideration of Mr Scholz’s capacity to fulfil the requirements of the position of Knowledge broker with appropriate training or otherwise.

Conclusion as to Agreement requirements

[91] I have indicated some deficiencies with the redeployment process of the Agreement as it is applied by the University although note that I have not heard argument as to the intent of the Agreement and my criticism should be read in this light. It is not clear that Mr Scholz, as a redeployee, was considered for redeployment for positions he expressed an interest in in accordance with the terms of the Agreement. The blurring of lines between consideration for redeployment in accordance with the criteria in clause 65.11 and competitive selection process suggests that redeployment in accordance with the Agreement may not have been complied with.

[92] However, whilst it might have been reasonable for Mr Scholz to have been redeployed during the six month redeployment period, that is not the matter I must decide. If Mr Scholz believed the Agreement was not being complied with whilst he was employed with the University, his recourse was to notify a dispute to the Commission in an attempt to have that matter resolved at that time.

Redeployment obligations for a genuine redundancy

[93] Even if I was satisfied that the University had met its obligations under the Agreement, this is not a complete answer to the claim for unfair dismissal by Mr Scholz.

[94] In Ulan Coal Mines Ltd v Honeysett 25 (Ulan Coal), the Full Bench said:

if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer’s capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances. 26

[95] The Full Bench identified the point in time at which it is to be determined if redeployment may have been reasonable:

Thirdly, the question posed by s 389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered. 27

[96] Whilst, in this matter, the Full Bench was considering redeployment to associated entities (s.389(2)(b)), the reasoning is no different in relation to redeployment within the employer’s enterprise (s.389(2)(a)).

[97] Further, the Full Bench provide guidance (lacking in the Agreement) as to what constitutes redeployment:

It may be appropriate to make some concluding remarks about the operation of s 389(2). It is an essential part of the concept of redeployment under s 389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s 385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations. 28

[98] That is, to require a redeployee to engage in a competitive selection process might lead to a conclusion that the redundancy is not genuine.

[99] In Technical and Further Education Commission (t/as TAFE NSW) v Pykett, 29 the Full Bench found that there must be a finding as to whether there was a job or position to which the applicant could be redeployed:

Such a finding is a necessary step in reaching the conclusion that it would have been reasonable in all the circumstances for Ms Pykett to be redeployed within the appellant’s enterprise...The failure to make such a finding is an error… 30

[100] From these authorities, it can be concluded that:

● Whether redeployment was reasonable must be determined at the time of the dismissal;

● For a position to be suitable for redeployment, the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other relevant considerations might include location of the job and the remuneration attaching to it;

● Requiring a redeployee to compete with other employees for a position – that is engage in a competitive selection process – may result in the dismissal not being a genuine redundancy;

● The Commission must make a finding as to whether there was a position or work into which the redeployee could have been redeployed as a necessary step in reaching a conclusion as to whether redeployment was reasonableness.

[101] At the time of Mr Scholz’ dismissal on 29 April 2016, the only position he identified as being suitable for redeployment and that he had an interest in was the Manager – Office of Strategic Procurement. Whilst he had been unsuccessful in gaining the position during his six month redeployment period, the person who ultimately gained that position left the University and the position was again vacant. Mr Scholz had not indicated any interest in a number of other vacancies at HEW 10 advised to him by Ms Watson in her letter of 14 April 2016. 31

[102] Mr Scholz made an application for the then vacant position on 11 March 2016. A copy of position description 32 and his application were provided to the Commission.33 I am satisfied that in considering if this position was one to which Mr Scholz could be reasonably redeployed, I can have regard to Mr Suter’s evidence of the assessment of Mr Scholz against the requirements of the position undertaken some six weeks prior to Mr Scholz’s dismissal.

Mr Suter’s evidence is that he assessed Mr Scholz against the requirements of the position and did not consider that he had the critical skills necessary to be able to fulfil the requirements of the position. In particular, he said that Mr Scholz, whilst understanding and being able to articulate the transactional process for procurement, did not have the technical knowledge nor demonstrate a strategic approach to procurement issues. Mr Suter’s evidence is that these skills could not be gained with reasonable training.

[103] I am satisfied, on the basis of the evidence of Mr Suter, that Mr Scholz did not have the necessary skills and competence required to perform the position of Manager – Office of Strategic Procurement and would not have been able to reach the required standard with a reasonable period of training. I am satisfied that the position required a level of technical skills that are not evident in Mr Scholz’s application for the position or his CV.

[104] Almost immediately after Mr Scholz was dismissed, he became aware of another position in OPVC-IL in the ‘Whole of Community Engagement’ area. Ultimately, with approval (as he had just taken redundancy), Mr Scholz was engaged in the position.

[105] The evidence of Associate Professor James Smith, Associate Professor and Programme Manager, is that the position is fixed term and, at the time of hearing, it was not known if the funding for the work would continue beyond the end of 2016.

[106] Mr Scholz did not indicate that he was interested in being redeployed into the fixed term position. Had he been moved into the fixed term position, there are legitimate questions as to whether the fixed term would just extend his period with the University before he was dismissed with his redundancy entitlements or if the agreement resulted in a redeployment such that he was then at the mercy of the fixed term contract and funding.

[107] Ultimately, as Mr Scholz did not address this issue, no submissions were made on it. I make no finding as to whether it would have been suitable redeployment or not.

[108] For the reasons given, I am satisfied that there was not a position Mr Scholz could have been reasonably redeployed into at the time of his dismissal.

Conclusion

[109] I am satisfied that:

● the University no longer required Mr Scholz’ job to be performed by anyone;

● the University complied with its obligations under the Agreement to consult about the redundancy; and

● it would not have been reasonable, in all of the circumstances, to redeploy Mr Scholz within the University and the University has no relevant associated entity.

[110] On this basis, I am satisfied that Mr Scholz’ dismissal was a genuine redundancy.

[111] Mr Scholz’ application for unfair dismissal is therefore dismissed. An order 34 to that effect is being issued at the same time as this decision.

COMMISSIONER

Appearances:

H. Schmit for the applicant.

C. Pugsley with S. Helfer for the respondent.

Hearing details:

2016.

Darwin:

October 25.

 1   AE406243.

 2   Exhibit R5, paragraph 11.

 3   Exhibit R5, attachment 7.

 4   Transcript PN486.

 5   Transcript PN508, 510.

 6   Transcript PN518-9.

 7   Transcript PN522.

 8   Transcript PN530.

 9   Exhibit R5, attachment 5.

 10   Transcript PN406.

 11   Transcript PN365 and PN419.

 12   Transcript PN401.

 13   The Agreement bars re-employment of a person who has been made redundant without approval of the Vice-Chancellor for a period of 12 months.

 14   Exhibit R5, attachment 5.

 15   Transcript PN705.

 16   Exhibit R5, attachment 6.

 17 (1995) 60 IR 304.

 18   Ibid, at p.308.

 19   Agreement, clause 3.20 - Definitions.

 20   Agreement clauses 65.11.1 - 65.11.6.

 21   Exhibit A3, paragraph 16.

 22   Exhibit A3, paragraph 28.

 23   Ibid.

 24   Ibid.

 25 (2010) 199 IR 363.

 26 Ibid, 370, at paragraph [26].

 27 Ibid, 370, at paragraph [28].

 28 Ibid, 371-2, at paragraph [34].

 29 (2014) 240 IR 130

 30   Ibid, 131.

 31   Exhibit R5, attachment 7.

 32   Exhibit R5, attachment 6.

 33   Exhibit R1, attachment 3.

 34   PR588551.

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