Fiona Petrov v City of Ballarat

[2016] FWC 11

[2016] FWC 11

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fiona Petrov
v
City of Ballarat
(U2015/10751)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 JANUARY 2016

Application for relief from unfair dismissal.

[1] Ms Fiona Petrov was employed by the City of Ballarat from 23 April 2014 until her employment was terminated on 15 July 2015. Ms Petrov was employed as an administrative assistant and reported to Mr Cameron Montgomery the Safety Manager. The Council alleged that it terminated Ms Petrov’s employment because her position was redundant. It said this was a genuine redundancy because it complied with its obligations under the Ballarat City Council Enterprise Agreement No 6, 2013 and it was not reasonable in all the circumstances to redeploy Ms Petrov. Ms Petrov alleged that she was made redundant because she made a complaint about a co-worker and that the tasks she had previously performed were still being performed.

[2] Mr Glenn Kallio the Chief Financial Officer, Mr Cameron Montgomery the Safety Manager and Ms Joanne Grainger the Human Resources Manager gave evidence for the Council.

[3] Ms Petrov gave evidence on her own behalf.

[4] It was the Council’s evidence that a decision was taken that there was a need to tighten the operating budget to deliver savings to the Council for it to be able to deliver major projects without an increase in the rates above the rating strategy. 1

[5] On 27 April 2015, the CEO of the Council sent all staff an email advising of a number of proposed changes, and included, relevantly, that the Risk and Insurance Team would be combined with Mr Montgomery’s team. As a result one vacant position would not be filled. 2 The memo identified a number of positions which would not be continued but it did not identify Ms Petrov’s position as one that would be made redundant.

[6] On 28 April 2015, Mr Kallio met with the team members including Ms Petrov and provided further information including further details about the structural changes and the impact on the division , in particular the inclusion of the Risk and Insurance Team functions into Mr Montgomery’s Safety team. 3 Mr Montgomery was tasked with managing this merger.

[7] As a result, Mr Montgomery met with his team including Ms Petrov to discuss the changes and advised that he would review the team structure including reviewing roles to ascertain the most effective structure. 4 Mr Montgomery then met with each team member individually including Ms Petrov.

[8] On 11 June 2015, Mr Montgomery met with Ms Petrov to discuss her role. He identified four tasks which she had previously undertaken which were now being done by others. He said her duties had changed as a result of the introduction of a new software package. 5 Ms Petrov did not dispute that she no longer performed these duties but gave evidence that she had been doing these tasks until she lodged a formal complaint on 16 April 2015.6

[9] As part of his review Mr Montgomery also undertook benchmarking against five other councils.

[10] Mr Montgomery with Ms Grainger’s assistance completed the review and presented a provisional business plan to Mr Kallio on 18 June 2015. 7 He noted that a Safety Advisor position (Band 6) had previously been approved. He proposed the creation of a Risk and Insurance Advisor (Band 6) be created but noted that the position was unfunded.

[11] There were currently two administrative positions; a Claims Management Support Officer (1.0 EFT - job shared) and an Administrative Officer (0.72 EFT).

[12] He noted Ms Petrov’s responsibilities but found that “the more technical elements (procedure/template production) have reduced with automation or development required at a higher level by an Advisor following the introduction of Elumina.” 8

[13] He noted that the two positions overlapped in terms of basic administration requirements and recommended that a new full time Administrative role (Trainee) be created with a focus on data management for the entire business unit. He further recommended that the Administrative Officer-Safety be made redundant and that the Risk and Insurance Administrative Officer position be reduced from full time to a 0.6 position.

[14] He put forward four options but recommended the option that would see Ms Petrov’s position declared redundant.

[15] On 30 June 2015, Mr Kallio met with Mr Montgomery and approved option 1 and 3 and gave them approval to proceed with the consultation phase in accordance with the Agreement.

[16] Mr Montgomery met with Ms Petrov on 1 July 2015 and told her about the findings of the review and advised her of the proposed structure. In addition she was provided with a memo which set out the proposal. 9 That memo invited Ms Petrov to provide any comments on the proposal by 8 July 2015. Ms Petrov accepted that she did not make any comments on the proposal. Other staff made comments and endorsed the proposal.

[17] Mr Montgomery and Ms Grainger met with Ms Petrov on 14 July 2015 to confirm that a decision had been taken to implement the proposal and to advise her that her position was redundant. She was advised that redeployment could be considered. Ms Petrov was provided with a letter confirming that advice. 10 That letter advised that redeployment and retraining opportunities were dependent on the existence of upcoming vacancies and she was to notify Human Resources who could advise her of vacancies. She was told that if no positions were able to be identified her employment would end on 11 August 2015.

[18] Ms Petrov told Mr Montgomery and Ms Grainger that she did not wish to be considered for redeployment and that she wanted to cease employment immediately. 11 As a result Ms Petrov’s employment ended and she was paid her entitlements.

[19] Ms Grainger’s evidence supported Mr Montgomery’s evidence. Ms Grainger gave evidence that Ms Petrov’s redundancy occurred around the same time a number of positions were made redundant. 12

[20] Ms Petrov gave evidence that she made a complaint about a fellow staff member and as a result a meeting was held with Mr Kallio, Ms Grainger, herself and the other staff member.

[21] At that meeting Mr Kallio told the two employees that he had observed their interactions and that both employees had breached the code of conduct. He said there was right and wrong on both sides but it was now having a major impact on the office. He said if it was not resolved the minority would not be there. He said in his experience these types of matters do not end well. He told them they could both make formal complaints against each other and a formal disciplinary process would occur “but that never ends well.” He further said “A complaint mechanism is designed to solve problems so that employees come out well. My experience is that they can’t recover from it and they either get in a position where they don’t want to work for us anymore or they are made to leave the organisation through that process. I don’t give a shit what anyone says. I have never seen someone recover from it. They either leave or the formal process will ask you to leave.” 13

[22] He said that Mr Montgomery would discuss with them their roles and as far as the personality issues they had to suck it up. They were told either they resolved it or he would. He told them if they couldn’t sort it out, then they should look for somewhere else to go. Ms Petrov expressed her disquiet at this approach and questioned how his approach would solve anything. He told her that if they could not sort out the issues, that he would take action against them if they continued to have an impact on the office. Ms Petrov advised that she would be happy not to have to work with the other staff member but Mr Kallio said this was not an option. Ms Petrov asked Mr Kallio to explain why she was being told off as she had never been told what was wrong with her behaviour. She was not sure how she was breaching anything. Ms Petrov complained that this had been going on for a year. Mr Kallio said that much of the difficulty could be solved if there was role clarity. Mr Kallio told Ms Petrov that if they wanted some mechanisms, training or support counsellors, then ask. He also said that they could get an independent conciliator. He further advised that if they wanted to leave he could help.

[23] Ms Petrov alleged that Mr Kallio swore at the meeting and threatened her employment. Ms Grainger and Mr Kallio denied he made the alleged comments and Mr Kallio denied threatening her employment.

[24] It was after this meeting that Ms Petrov said others started doing her work and she raised this with Mr Montgomery but she said he did not provide her with an explanation. Ms Petrov complained about being excluded.

[25] Ms Petrov concentrated on her contention that she was selected for redundancy because she made a complaint. It is clear however that I am not able to consider this contention unless I find that the redundancy was not genuine. An employee who believes that he or she had been selected for redundancy because he or she made a complaint about his or her employment is able to make a general protections application.

[26] Ms Petrov did not question the evidence from Mr Kallio about the reasons for the restructure. She did not challenge Mr Montgomery’s evidence about why he made the recommendations he did.

[27] She submitted that there was a significant overlap between her position and the Administrative Trainee’s position. Mr Montgomery disputed this and said that the trainee position was predominantly data entry. While there is clearly some overlap when the position description for the trainee position is compared to Ms Petrov’s statement of service, it is clear that Ms Petrov was required to perform a wider range of functions than the trainee will be required to perform.

[28] Ms Petrov submitted that with training she could have done the Band 6 position. She may be correct however that did not mean her position was not redundant. It may have meant she could have been redeployed into that position. However as she had advised the Council that she was not interested in redeployment, that possibility was never explored.

[29] Ms Petrov also challenged the genuineness of the consultation process because she said that on 9 July 2015 an external client advised her that Mr Montgomery told the client that Ms Petrov’s position was redundant. On the same day Ms Petrov emailed Mr Montgomery asking for an update on the proposed changes and Mr Montgomery told her that the consultation period was completed and he was reviewing the responses prior to making any final decision. Mr Montgomery denied advising any client that her position was redundant. Ms Petrov did not call any other evidence to support this claim. I am therefore, in light of Mr Montgomery’s sworn evidence, unable to find that he had made a decision to make Ms Petrov’s position redundant, prior to 13 July 2015.

The legislative framework

[30] Section 385 of the Fair Work Act 2009 provides that a person has been unfairly dismissed if the Commission is satisfied that the dismissal was not a case of genuine redundancy.

[31] Section 389 defines genuine redundancy as follows:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

Findings

[32] The evidence about the reasons for the restructure was not challenged by Ms Petrov. Nor did she challenge Mr Montgomery’s proposals as outlined in the restructure memo. I therefore accept that the Council has established that there were changes in the operational requirements that meant the Council no longer required Ms Petrov’s job to be performed by anyone. That some of her tasks were still required to be performed does not mean that her job remained. It is clear that an employer is entitled to reallocate work amongst other employers and still satisfy the requirements of section 389(1)(a).

[33] The Agreement at clause 13 provides for consultation as follows:

“13. Consultation regarding Major Workplace Change

13.1 Employer to Notify

13.1.1 Where an employer is contemplating changes that are likely to have significant effects on employees, the Council shall notify the Employees who may be affected by the proposed changes and, at the Employee’s request, the Employee’s representative (which may include the relevant Union).

13.1.2 Significant effects include termination of employment, major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations and the restructuring of jobs; changes to the legal or operational structure of the employer or business; changes in technology; outsourcing.

13.2 Employer to discuss change

13.2.1 The Council shall discuss with the Employees affected and, at the Employee’s request, the Employee’s representative (which may include the relevant Union) “inter alia”, the introduction of the changes referred to in sub-clause 13.1 hereof, the effects the changes are likely to have on employees, and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

13.2.2 The discussions must commence as early as practicable.

13.2.3 For the purposes of such discussions, the Council shall provide in writing to the Employees concerned and, at the Employee’s request, the Employee’s representative (which may include the relevant Union), all relevant information about the changes including the nature of the changes proposed; the expected effects of the changes on employees and any other matters likely to affect employees.

13.2.4 As soon as a final decision has been made, the Employer must notify the Union and the employees affected, in writing, and explain the effects of the decision.

13.2.5 All Parties must act in good faith in relation to the consultation process provided in this clause.

13.2.6 In this clause ‘good faith’ includes but is not limited to, obligations to:

• meet;

• disclose relevant information;

• genuinely consider proposals;

• respond to proposals including reasons for the response;

• refrain from capricious or unfair conduct that undermines consultation.”

[34] I am satisfied that the Council has complied with its obligations to consult. Ms Petrov was advised of the proposal to introduce change namely merger of the Risk and Insurance Team with the Safety Team managed by Mr Montgomery. Further, Ms Petrov was briefed by Mr Montgomery prior to any decision being taken. She was invited to comment but did not take the opportunity.

[35] I am further satisfied that in light of Ms Petrov’s advice that she was not interested in redeployment that it would not have been reasonable in all the circumstances to redeploy her.

Conclusion

[36] I am satisfied that this was a genuine redundancy and therefore I find that Ms Petrov was not unfairly dismissed and therefore her application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

F Petrov on her own behalf.

J Reid for the Respondent.

Hearing details:

2015.

Ballarat:

22 December.

 1   Exhibit R1 at [2]

 2   Ibid at GK1

 3   Exhibit R2 at [2]

 4   Ibid at [3]

 5   Ibid at [5] and oral evidence

 6   Exhibit A2 at [1]

 7   Exhibit R2 at CAM2

 8   Ibid

 9   Ibid at CAM3

 10   Ibid at CAM 8

 11   Ibid at [11]

 12   Exhibit R4 at [7]

 13   Exhibit A1 at attachment 2

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