Dean Innis v Central Queensland University T/A Cqu

[2020] FWC 6300

[2020] FWC 6300

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dean Innis
v
Central Queensland University T/A CQU
(U2020/10355)

DEPUTY PRESIDENT BOYCE SYDNEY, 1 DECEMBER 2020

Application for an unfair dismissal remedy — applicant accepted voluntary redundancy — applicant says he had no real choice but to accept voluntary redundancy — whether applicant was “dismissed” in electing to accept voluntary redundancy — no “dismissal” within the meaning of s.386 of the Fair Work Act 2009 — application dismissed.

Introduction

[1] On 30 July 2020, Mr Dean Innis filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). By way of his Application, Mr Innis claims that he was dismissed from his employment with Central Queensland University (CQU) on 17 July 2020, and that his dismissal was “unfair” within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).

[2] On 7 August 2020, CQU filed a Form F3 with the Commission (Response). By way of that Response, CQU asserts that Mr Innis’ dismissal was a case of “genuine redundancy” within the meaning of s.389 of the Act.

[3] Following the receipt of submissions and evidence in accordance with directions made, I held a hearing by telephone on 12 October 2020. Mr Innis appeared for himself. Ms Catherine Pugsley (Australian Higher Education Industrial Associate) appeared for the CQU.

[4] During the hearing, it became apparent to me that there was a real question as to whether the Applicant was “dismissed” within the meaning of s.386 of the Act. I note this was not an issue raised by the parties. However, given that any remedy awardable is predicated upon the Commission having been satisfied that the Applicant was a person protected from unfair dismissal vis-à-vis that he had been “dismissed”, I took the view that this issue must be resolved before the Commission could further deal with the Application.

[5] Having had regard to the evidence and submissions before me, I have determined that the Applicant was not “dismissed” within the meaning of the Act. My reasons for making this determination follow.

[6] This matter was determined on the papers by consent of the parties. I note that subsequent to that consent being reached, Mr Innis sought to withdraw his consent and have a hearing. I declined leave for Mr Innis to withdraw his consent, and the determination of the matter on the papers has occurred as originally agreed.

Background facts

[7] The relevant facts are not in dispute: 1

(a) From March 2015, Mr Innis was employed by CQU as an Academic on a casual basis. On or around 28 November 2016, he began working on a part-time basis. Mr Innis worked from CQU’s Sydney-based Clinic.

(b) Mr Innis was covered by the Central Queensland University Enterprise Agreement 2017 (Agreement) at all relevant times. Clauses 7 and 13 of the Agreement govern consultation and redundancy, including voluntary redundancy (termed “voluntary separation packages”), and applicable procedural requirements. It appears that parts of the redundancy process are also governed by or interact with CQU’s relevant policies and procedures. There is no suggestion by the Applicant in these proceedings that any of these terms and conditions under the Agreement, or relevant policy and procedure have been breached (other than to the extent that the Applicant says that he should have been redeployed).

(c) In or about April 2020, CQU resolved to close the Sydney Clinic. The decision coincided with, and was compounded by, economic pressures arising as a result of the COVID19 pandemic. In response, and by way of summary, at this time CQU resolved to restructure its business to save costs and obtain efficiencies.

(d) Between April and May 2020, CQU engaged in a period of consultation pursuant to the relevant terms of the Agreement.

(e) On 25 May 2020, Mr Innis was verbally informed that his position would be impacted.

(f) On 8 June 2020, Mr Innis was advised that his position had not been matched across the new business structure. He was offered to either take a voluntary redundancy package, or seek redeployment.

(g) From this point, Mr Innis proposed to be redeployed, asserting that he had the skills necessary to teach certain academic courses at another CQU campus (to which he proposed to be relocated). Mr Innis expressed a strong preference for such redeployment to CQU through his National Tertiary Education Industry Union (NTEU) representative.

(h) Despite the above, Mr Innis nonetheless ultimately elected to accept a voluntary redundancy. Mr Innis did so on the back of written advice he received from the NTEU. 2. That correspondence reads as follows:

“[You] can choose to instead go on the period of redeployment if you wish but [CQU] has already flagged a complete unwillingness to entertain that. It would only be viable if you're aware that a colleague intended to stay has departed instead to create a vacancy … Or you can wait for it to become a forced redundancy. You get 2 weeks less in payment [if you are forcibly made redundant] and it wouldn't make a difference to your ability to go for unfair dismissal”. 3

(i) On 22 June 2020, CQU wrote to Mr Innis, confirming that Mr Innis’ “written expression of interest” in taking voluntary redundancy had been accepted by CQU.

Relevant law

[8] Section 385 of the Act reads as follows:

“What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed …

…”.

(emphasis added)

[9] Section 386 defines “dismissed” as follows:

“Meaning of dismissed

(1) A person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer”.

[10] In view of the sections quoted above, it follows that a person who has not been dismissed within the meaning of s.386 of the Act is not a person who can satisfy s.385(a). Should that be the case, the Commission is without jurisdiction to hear and determine a claim for unfair dismissal.

Applicant’s submissions

[11] Mr Innis submits that he was “dismissed” within the meaning of s.386(1)(b) of the Act because he was “forced to take the redundancy offered” by CQU. Mr Innis says that he was forced to do so due to a “course of conduct” engaged in by CQU.

[12] Mr Innis says that he always made it clear to CQU (via his NTEU representative) that he wished to stay employed, and was open to all appropriate redeployment options. Nonetheless, Mr Innis says that it was made clear to him by his NTEU representative that redeployment was not an option open to him in the circumstances.

[13] Mr Innis relies on the email he received on 17 June 2020, cited above at paragraph [6](h), as evidence of the “course of conduct” engaged in by the CQU, which he says:

(a) made clear to him that — although he “theoretically” had the option of seeking redeployment—CQU had a “complete unwillingness to entertain” that option; and

(b) if he did elect to seek redeployment but was ultimately made redundant, a forced redundancy would be to his financial detriment (as compared to the voluntary separation payment).

[14] In summary, Mr Innis submits he had “no real choice” but to accept the voluntary redundancy package offered to him. He says that CQU’s conduct in this regard was the only reason he accepted the voluntary redundancy offer. When viewed objectively, Mr Innis submits that CQU’s conduct was the reason the employment relationship came to an end.

CQU’s submissions

[15] CQU submits that once Mr Innis’ position had been declared vacant (or obsolete), he was given the option of seeking ‘available’ redeployment, or accepting a voluntary separation package. If the redeployment option was not available, CQU may then have made a decision to make Mr Innis forcibly redundant. CQU submits that opting to take voluntary separation is not a termination at the initiative of the employer, because the termination occurred by way of “agreement”.

[16] In the present case, although Mr Innis’ preference was to remain employed by CQU, he did exercise a choice and opted for voluntary severance. Mr Innis did so based upon pragmatic financial considerations, which provided for an enhanced severance payment.

Consideration

[17] Mr Innis has made much of there being “no real choice” between his accepting the voluntary redundancy package offered by CQU, or seeking redeployment (being, on Mr Innis’ submissions, redeployment that would amount to nothing other than forced redundancy and a reduced severance payment). I reject this “no real choice” submission.

[18] The choice available to Mr Innis was real and genuine. There was a financial benefit in him accepting voluntary separation. The option of redeployment carried with it a real risk that he would be entitled to less money than the package on offer as part of the voluntary separation. The math is straightforward. The choice was straightforward.

[19] The NTEU’s advice does not reveal that the CQU was being coercive. To the contrary, CQU was being pragmatic and generous. Mr Innis’ election as to voluntary separation, in view of the advice given to him by the NTEU, was a genuine one, and is perhaps best described as a “logical” choice in the circumstances. If Mr Innis now seeks to challenge the advice given to him by the NTEU, that is a matter for Mr Innis to pursue directly with the NTEU, or in a forum of competent jurisdiction. In other words, whatever advice Mr Innis got from the NTEU, and to what extent he relied upon that advice in making his decision to accept voluntary separation, is not a matter that falls for consideration before this Commission in Mr Innis’ unfair dismissal proceedings (on the jurisdictional question of “dismissal”).

[20] CQU has referred me to National Tertiary Education Union v La Trobe University, 4 where Tracey J noted that it:

“is not uncommon, in industrial parlance, to encounter references to “voluntary redundancy” and “compulsory redundancy” where what is being referred to is termination of employment following a redundancy; the employee may agree with the employer to bring his or her contract of employment to end or the employer might choose, unilaterally to terminate the contract”.

[21] I find that the cessation of Mr Innis’ employment with CQU came about by agreement vis-à-vis an election by him to accept voluntary separation (redundancy). That being the case, Mr Innis’ termination is not of the kind described in s.386(1)(a) of the Act (i.e. a termination at the initiative of CQU).

[22] In relation to s.386(1)(b) of the Act, Mr Innis’ assertions are completely unsustainable. For s.386(1)(b) to have any application whatsoever, Mr Innis must have first “resigned” from his employment. This requirement for a resignation to have occurred must be established as a matter of fact, and prior to any considerations involving matters such as whether Mr Innis’ was “forced to do so” by the “conduct of [his] employer [CQU]”. Mr Innis did not resign his employment. Indeed, Mr Innis himself says that he was dismissed. In this regard, Mr Innis says that his whole unfair dismissal case is predicated upon his dismissal by CQU in forcing him to accept the voluntary separation package.

[23] For the reasons set out in this decision, having regard to the facts and circumstances of this matter as set out in the evidence and submissions of the parties, I conclude that Mr Innis was not “dismissed” by CQU within the meaning of the Act.

Other matters

[24] Mr Innis feels aggrieved that his role became redundant — especially in regard to his view that there was or should have been potential redeployment options put forward to him to accept.

[25] In my view, Mr Innis’ protests as to the characterisation of certain facts are neither here nor there for the purposes of determining whether he was “dismissed” within the meaning of the Act. Although it is apparent that Mr Innis is imploring this Commission to make findings as to those facts, the Commission is not in a position to do so solely for the sake of satisfying Mr Innis’ desire to call out wrongs he perceives to have befallen him at the hands of CQU.

[26] The foundational purpose of the Commission’s power to arbitrate unfair dismissal matters is to award a statutory remedy where appropriate. Where it is inappropriate (primarily, where the proceeding initiated falls outside of the Commission’s jurisdiction), the Commission should not become a forum to air an employee’s grievances about a former employer at large.

[27] Even if Mr Innis could have satisfied the jurisdictional and/or threshold issues to make out his claim for an unfair dismissal remedy, on the evidence before me, there would very likely be no remedy available to him. I say this having regard to CQU’s prima facie case on redundancy (there being no apparent role (vacant or otherwise available) for the Commission to order the redeployment of Mr Innis into). Mr Innis’ case would then turn to compensation, to which there would be none to award him as his voluntary separation package is an amount beyond the maximum six months compensation that the Commission may award. Mr Innis salary for 2019/20 was $64,467.30. 5 His voluntary separation payment (redundancy payment) was $80,314.6

[28] In view of the foregoing, it is readily apparent that the pursuit by Mr Innis of his claim for unfair dismissal against CQU, even if within jurisdiction, would be an act of futility, not to mention a gross misapplication of the Commission’s resources.

Conclusion

[29] There being no dismissal, Mr Innis’ Application is dismissed. An order to that effect will follow the publication of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR724826>

 1   Statement of Jacinta May Cumming, 11 September 2020; Statement of Professor Michelle Bellingan, 11 September 2020; emails between parties between the dates of 12 and 18 June 2020.

 2   See emails between parties between the dates of 12 and 18 June 2020.

 3   I note that this email was not before the Fair Work Commission. However, given that the contents of the email do not appear to be contested, I accept that such an email was provided to Mr Innis by the NTEU representative and that he has relied on the contents of that email in making the decision to accept a voluntary redundancy.

 4   NTEU v La Trobe University [2014] FCA 1330 at [28]. Justice Tracey’s obiter was not disturbed on appeal. See: NTEU v La Trobe University [2015] FCAFC 142 at [82] and [118]-[119]. I note that the term “voluntary redundancy” has been interpreted in the context of the construction enterprise agreements. Nevertheless, I take the authorities to have wider applicability and that the commentary applicable in these circumstances. See: Port Kembla Coal Terminal Ltd v CFMEU [2016] FCAFC 99 at [161] (Jessup J) and [349] (Rangiah J); CFMEU v BHP Coal Pty Ltd [2016] FCA 1009 at [43] (Logan J).

 5   Form F3, at Item 1.5.

 6   Mr Innis’ separation certificate dated 20 July 2020.