Jacqueline Moriarty v MEGT (Australia) Ltd T/A MEGT

[2016] FWC 8840

[2016] FWC 8840

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jacqueline Moriarty
v
MEGT (Australia) Ltd T/A MEGT
(U2016/8778)

VICE PRESIDENT WATSON MELBOURNE, 8 DECEMBER 2016

Application for relief from unfair dismissal – whether genuine redundancy – whether consultation obligations under the enterprise agreement were complied with – Fair Work Act 2009 ss.394, 389.

[1] This decision is an amended version of a decision given on transcript on 29 November 2016 in relation to an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) by Ms Jacqueline Moriarty arising from the termination of her employment with MEGT.

[2] The application is made by Ms Moriarty under s.394 of the Actseeking a remedy for unfair dismissal. One of the ingredients for an unfair dismissal in s.385 of the Act is that the dismissal must not be a case of genuine redundancy. Section 396 of the Act requires me to determine that question before determining the merits of the matter.

[3] Considering the question of whether the termination is a genuine redundancy or not involves the application of s.389 of the Act. It is not in dispute that that test involves three elements, as set out in ss.389(1)(a), (1)(b) and (2). It is necessary, therefore, for me to consider each of those elements, because each of the elements must be satisfied for the dismissal to be a case of genuine redundancy.

[4] Extensive evidence was presented concerning the factual circumstances leading to the dismissal. The critical factors appear to me to be a meeting conducted by Mr Langdon with Ms Moriarty on 27 June 2016 in Cairns. At this meeting Mr Langdon advised Ms Moriarty of a decision to restructure the operations in Queensland and to combine the position of State Manager, Queensland Education Division with the Regional Manager, MEGT Cairns Office Operations Division. The consequence of this was the abolition of the position held by Ms Moriarty at the time. 

[5] That meeting was followed by an email from Mr Jones, the General Manager, People and Safety for MEGT of the same day.  That email indicated a process that would be undertaken to determine who would be selected for the new role that was intended to be titled State Manager, Queensland and was intended to be based in Brisbane.

[6] There were subsequent communications over the next two weeks. It is relevant that Ms Moriarty advised in writing that she did not intend to submit an expression of interest for the new role, primarily or exclusively because of the salary that was offered for that role.  The evidence establishes that there were in excess of 20 other positions abolished at the same time. The company undertook a process of implementing those redundant positions and sought to redeploy a number of employees arising from the restructure as part of that process.

[7] The next significant factor in the chronology was a communication from Mr Jones to Ms Moriarty dated 18 July 2016. That letter made reference to the introduction of change and redundancy procedures in the applicable enterprise agreement. It attached a list of current vacancies. It requested that Ms Moriarty consider those vacancies carefully and let Mr Jones know if she was interested in any of them. It also noted that Ms Moriarty had applied for the position of Field Operations Manager with the ANP Division to be located in Melbourne.

[8] A process of interviews was then conducted with applicants for the Field Operations Manager position.  Mr Andros and Ms Gildea gave evidence about their involvement in those interviews.  Mr Andros was involved in both the initial round of interviews and second interviews conducted with three shortlisted candidates.. Ms Gildea was involved only in the second of those interviews. Evidence has been given about that process. I note in particular Mr Andros's evidence that after the second round interview, Ms Gildea and he met to discuss whether they thought Ms Moriarty could perform the vacant position, with or without re-training. Having regard to Ms Moriarty's lack of experience and skills they both determined that she could not. They advised her accordingly that she would not be redeployed to that vacant position.

[9] Against that background I am required to consider each of the elements of s.389. It is not disputed, and it cannot reasonably be disputed, that the employer made a decision that Ms Moriarty's job was no longer required to be performed by anybody. There were a large number of redundancies. The position in Cairns was abolished and has not been replaced. I am satisfied on the evidence that the criterion in s.389(1)(a) is satisfied.

[10] The next factor is whether the employer has complied with obligations in the MEGT Staff Enterprise Agreement 2015-2018 (the Agreement) to consult about the redundancy. The consultation obligations are set out principally in clause 155 of the Agreement. They provide that the employer will provide in writing all relevant information about the change, including the nature of the change proposed, information about the expected effects of the change on the employees, and any other matters likely to affect the employees. The clause also requires the employer to give prompt and genuine consideration to matters raised about the major change by the relevant employees. There are other ancillary provisions, including a right of employees to appoint a representative for the purposes of discussions.

[11] I have briefly summarised the evidence in this matter. I consider it quite understandable that when advising of the significant redundancies and restructure, and in particular the combination of positions, that there would be an initial focus on the process designed to fill the new position as a result of the combination of existing redundant positions. It is also inherent in communicating these matters that any communications of concerns or issues could have been raised and discussed, either at the initial meeting or in subsequent communications, in response to the written email of 27 June, or in relation to any of the other communications about that position or any other.

[12] It appears on the evidence that a significant restructure was not called into question and it is doubtful that it could have been in the circumstances involved. I am also satisfied that detailed information was provided, both at the meeting attended by Mr Langdon and in the email and letters sent by Mr Jones about the proposal. I am satisfied that there was detailed consultation and an invitation for any further representations after the letter of 18 July 2016. The opportunity went beyond the question of alternative positions. There was limited input on these matters from Ms Moriarty apart from her expression of interest in the Field Operations Manager position. I find on all of the evidence that the employer complied with its obligations under the enterprise agreement to consult about the redundancy.

[13] The final question is whether it was reasonable to redeploy Ms Moriarty in another position within the employer's enterprise or an enterprise of an associated entity of the employer. The evidence in relation to this matter included evidence of the provision of a list of vacancies and a process adopted to consider Ms Moriarty for the Field Operations Manager role. Having regard to the evidence of Mr Andros and Ms Gildea who made the decision that Ms Moriarty was not suitable for that position, I find that it would not have been reasonable in all the circumstances for Ms Moriarty to be redeployed in that position or any other position within the employer's enterprise. In terms of other positions, it is a difficult time for the employer with a number of changes involved. I consider that given Ms Moriarty's seniority, the concern she expressed about the salary for the combined position, and the finding that she was unsuitable for the role of Field Operations Manager that it was not reasonable for her to be redeployed within any position within the employer's enterprise.

[14] It follows from the findings on the evidence in this matter that each of the elements in s.389 of the Act are satisfied. Therefore, the termination was a case of genuine redundancy. A fundamental element of an unfair dismissal is not satisfied in this case. Accordingly, I dismiss the application.

VICE PRESIDENT

Appearances:

Mr C Keily, paid agent, on behalf of Ms Moriarty.

Mr G Katz of counsel on behalf of MEGT.

Hearing details:

2016.

Melbourne.

29 November.

Final written submissions:

Ms Moriarty on 7 November 2016.

MEGT on 7 November 2016.

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