James Brandi v Australian Federal Police

[2014] FWC 2284

[2014] FWC 2284

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

James Brandi
v
Australian Federal Police
(C2013/5305)

COMMISSIONER WILSON MELBOURNE, 7 APRIL 2014

Dispute arising under an enterprise agreement - whether employee entitled to have acceptance of offer of voluntary redundancy upheld.

[1] This decision relates to an application made by James Brandi (the Applicant) on 26 July 2013 against the Australian Federal Police (the AFP).

[2] The application was brought under s.738 and s.739 of the Fair Work Act 2009 (the FW Act) seeking the Fair Work Commission (the FWC) to arbitrate a dispute over the application of section 58 of the Australian Federal Police Enterprise Agreement 2012 – 16 (AE891991) (the 2012 Agreement). The 2012 Agreement operated from 8 March 2012, and has a nominal expiry date of 8 March 2016 1.

[3] The dispute relates to whether or not Mr Brandi was offered a voluntary redundancy by the Australian Federal Police; whether he accepted such an offer; and whether the Australian Federal Police, by virtue of the provisions of the 2012 Agreement is bound to act on Mr Brandi’s acceptance, declare him redundant, and subsequently pay him to leave the AFP’s employ.

[4] A dispute may be raised under the 2012 Agreement in accordance with section 70 (Dispute Resolution) (set out in full in the Attachment to this decision) and the FWC may assist in the resolution of the dispute subject to the provisions of the FW Act Part 6 – 2 (Dealing with Disputes).

[5] The dispute resolution procedure set out in section 70 at Step Four provides that the dispute resolution procedures within this section are “[f]or the purposes of preventing and settling disputes arising from this Agreement”. 2 (emphasis added)

[6] The procedure sets out four steps for the resolution of disputes; and the fourth step empowers parties to refer the matter to the FWC which may then deal with a dispute in two stages. 3

[7] After initially dealing with a dispute in the first stage, and if unable to resolve the dispute, there may then be a second stage of arbitration of the dispute before the FWC and a determination that is binding on the parties.

[8] Section 739 of the FW Act authorises the Commission to arbitrate a dispute in accordance with the terms of an enterprise agreement. However in doing so, the Commission must not make a decision that is inconsistent with either the FW Act or a Fair Work Instrument 4, which in this case is the 2012 Agreement.

[9] The Application states the dispute is about following;

“4. What is the dispute about?

1. My acceptance of a voluntary redundancy offer, which was subsequently withdrawn by the AFP. I was subsequently offered a position at a lower level which I tried to refuse. For details see attached letter sent to Assistant Commissioner Leanne Close, National Manager Human Resources on the 16th May 2013. On the 24th July 2013 I received a response from Assistant Commissioner Leanne Close stating that my ‘acceptance of the initial offer of a VR was conditional’ (see letter dated 17th July 2013 attached). I reject this view as my acceptance is clearly stated and I merely wished to negotiate the date that I leave the AFP, with regard to the contract dispute (see para 2 below). My response stated:

‘I am willing to accept a voluntary redundancy package on the provision that I leave on a date to be agreed between myself and the AFP, as per Section 58.5(a) of the Australian Federal Police Enterprise Agreement 2012-2016. Specifically, I agree to accept a voluntary redundancy package leaving the AFP on a date after an existing pay dispute between myself and the AFP has been resolved’.

2. Preceding the offer of a VR, on the 20th October 2011, I was notified of a proposed change to a contract relating to a seconded position I was in (a contract that applied from the 1st July 2010 to 30th June 20 12). See my response attached, dated 3rd November 2011, and a copy of the contract. On the 23rd March 2012, I was informed by letter that the changes to the contract were to be backdated to the commencement date of the contract and that I owed the AFP $10,695.61 in back-payment (see attached 2nd letter from Mike Holmes, Coordinator Pay Team dated 23 October 20 12). This contract dispute (remuneration) has still not been resolved.

...

7. Relief sought:

1. That my acceptance of the Voluntary Redundancy offer be upheld.

2. That the contract dispute be arbitrated by Fair Work Australia.” 5

[10] The Applicant’s Outline of Submissions included;

“16. The applicant submits that there has been an effective offer a voluntary redundancy by the respondent and an effective acceptance of same by the applicant on 22 June 2012 in accordance with the provisions of section 58 of the agreement. The applicant does not accept the respondent’s purported repudiation of the acceptance of the voluntary redundancy and seeks a finding of the Commission that the acceptance of the voluntary redundancy be upheld.” 6

[11] The Respondent submits the question for determination by the FWC to be as follows which it submits is within the FWC’s jurisdiction to determine, as afforded by section 70 of the 2012 Agreement 7;

“Is the Applicant entitled to redundancy pay pursuant to section 58 of the Australian Federal Police Enterprise Agreement 2012-2016?” 8

[12] The AFP’s characterisation of the dispute is not strictly accurate, since plainly if its proposed question was answered in the affirmative, it would doubtless expect the payment of redundancy pay be followed by the termination of Mr Brandi’s employment.

[13] As a result of the slight but important differences between the parties on the subject matter of the dispute, I understand the scope of the dispute to be arbitrated to be this question;

“Is the Applicant entitled to have his acceptance of an offer of voluntary redundancy upheld?”

[14] For the reasons set out below, I answer that question in the negative.

CONTEXT OF MR BRANDI’S EMPLOYMENT

[15] Mr Brandi has a long and extensive career in forensic science. He commenced work as a drug analyst with the Victoria Police in October 1990 and was subsequently employed by the AFP in March 1999 9. He initially worked as a forensic document examiner; was promoted to a team leader position in 2002 and was deployed to work associated with the Bali bombing in 2002. In 2004-5 Mr Brandi was assigned to duties associated with the Boxing Day Tsunami, which included a deployment to Thailand. In 2009 he was assigned to work with the AFP’s response to the Victorian bushfires. Since 1999 he has received formal recognition for his service from the AFP on several occasions including receiving an AFP Operations Medal in recognition of his service to the organisation’s Bali bombing response; an AFP Operations Clasp in recognition of his service relating to the the Boxing Day Tsunami; and an AFP service medal in recognition of 10 years diligent service with the AFP.

[16] From 20 April 2009 Mr Brandi became associated with the National Institute of Forensic Science (NIFS), which is at arm’s length to the AFP and the other police services. Mr Brandi’s evidence in this regard includes;

• He was seconded to NIFS from 20 April 2009 until his contract expired on 30 June 2010 10. At NIFS he was responsible for managing the development of six Australian Standards in Forensic Science11;



• There was a second period of secondment to the agency between 1 July 2010 and 30 June 2012. By that time, NIFS had been incorporated within the Australian New Zealand police advisory agency (ANZPAA). 12

[17] Prior to undertaking the secondment, Mr Brandi’s substantive position with the AFP was Team Leader, Quality Management with the Document Examination Team. This is agreed by the parties as being “equivalent” to a Band 8 position under the 2012 Agreement, although the parties have not elaborated on the meaning of the qualifier “equivalent”. 13 The 2012 Agreement provided a salary range for Band 8 of $97,414 to $106,033 per year in the first year of the Agreement’s operation (from 8 March 2012).

[18] During Mr Brandi’s absence on secondment at the ANZPAA and its predecessor, the AFP moved to rearrange its document examination team. In November 2010 Mr Brandi was advised that his substantive position was to be advertised and filled as a Canberra based position 14. By the middle of 2012, Mr Brandi’s ongoing employment with the AFP had become uncertain. He was advised there would not be a position for him in Melbourne (where he was living), but that there were positions available for him in Sydney or Canberra15.

[19] There were subsequently exchanges between Mr Brandi and his managers about his status, some of which are disputed. At the core of the dispute between the parties there is agreement that on 21 May 2012, Dr Paul Kirkbride, Mr Brandi’s direct manager, emailed Mr Brandi regarding his options on returning from secondment and stating “I also wish to advise you that the AFP is offering you a voluntary redundancy package” 16. This is referred to as the Contested Redundancy Offer.

[20] Following this exchange, Mr Brandi believes he was offered a voluntary redundancy from the AFP which he accepted; however the redundancy was never effected. The AFP contend there was never a valid offer of voluntary redundancy that would be binding on them and that subsequent actions of Mr Brandi mean that even if there had been an offer, his acceptance was conditional, meaning the AFP elected not to accept the condition and subsequently offered an alternative with which Mr Brandi agreed and took.

[21] Instead of taking a voluntary redundancy, Mr Brandi returned to work for the AFP, based in Melbourne. Since 11 October 2012, he has worked as a Quality Management team member within forensics 17. The AFP contend Mr Brandi moved into this role through the acceptance of an offer, and that his acceptance of the offer superseded any prior offer of voluntary redundancy (not that the AFP concede there was a valid offer made to Mr Brandi of voluntary redundancy).

[22] The AFP submits it contested the validity of the Contested Redundancy Offer soon after it was made. In this regard, the parties agree as a fact that Mr Brandi has been aware “[s]ince on or about June 2012 (and at least since accepting the offer for the Current Position on 11 October 2012) ... that Dr Kirkbride’s letter of 6 June 2012 was not a formal offer through the normal processes under the 2012 Agreement.” 18

CONTEXT OF THE AGREEMENT

[23] The 2012 Agreement refers to the different clauses it contains as “sections”. In order to ensure consistency with the content of the Agreement that will be referred to in detail, this decision also uses the terminology “section” throughout.

[24] The 2012 Agreement contains the following sections relevant to this matter;

• Section 5, Application of the Agreement, specifies who will be bound to the Agreement;



• Section 6, Comprehensive Agreement, provides that while the Agreement is a totality in its terms, certain other laws are relevant to the application of the agreement;



• Section 7, Delegation, allows the AFP Commissioner to delegate certain functions;



• Section 58, Redeployment and Redundancy, deals with the subject of voluntary redundancy;



• Section 70, Dispute Resolution, allows for the FWC to deal with unresolved disputes.

[25] The above sections are reproduced in full in the Attachment to this Decision, with the relevant parts of these sections referred to in the body of the decision.

[26] The parties agree the 2012 Agreement applied to Mr Brandi’s employment at all relevant times since 8 March 2012 19. He is not a person excluded from the 2012 Agreement by Section 5.

[27] While the 2012 Agreement is described as comprehensive in its terms, excluding applicable Enterprise or Modern Awards 20, section 6 provides that certain laws also have effect. The section provides;

“(4) Employment in the AFP is subject to the laws of the Commonwealth including subordinate legislation (as varied from time to time) and the common law, including, but not limited to :

…

(b) Australian Federal Police Act 1979;

…

(e) Fair Work Act 2009;

…”

[28] The Public Service Act 1999 is not listed in the above sub-section and it is not asserted by the parties that the Act has any application to Mr Brandi’s employment.

[29] Section 7 permits the AFP Commissioner to delegate to others the decision making authority he or she has under the 2012 Agreement, with the section providing;

“7 Delegation

(1) The Commissioner may, by written instrument, delegate any of the Commissioner’s powers or functions under this Agreement, other than this section and section 41 or subsections 12(4), 12(6), 12(7) or 42(7).

(2) A person exercising delegated powers or functions under this Agreement must comply with any conditions, directions or limitations imposed by the Commissioner.

(3) This section does not limit the power of the Commissioner to authorise a person to act for and on his or her behalf.”

[30] The references to other sections in subclause 7(1) are to subsections 12(4), (6) and (7) which relate to the assignment of “roles” to “working patterns”; to section 41 which relates to the determination for an individual employee of additional remuneration; and to subsection 42(7) which relates to the discretionary grant of additional annual leave.

REVIEW OF EVIDENCE

[31] The parties filed an Agreed Statement of Facts, and evidence was received from the following five people, both in the form of witness statements and oral evidence;

• James Brandi, the Applicant;



• Paul Kirkbride, formerly AFP Chief Scientist and supervisor of Mr Brandi;



• Leanne Close, AFP Assistant Commissioner - National Manager Human Resources, (who did not give oral evidence and submitted a witness statement only);



• Julian Slater, AFP Assistant Commissioner - National Manager Forensics;



• Heidi Gonzalez, AFP Senior Business Adviser - Human Resources.

[32] In 2010, Mr Brandi was seconded out of the AFP to NIFS. Late in 2010 he received a voicemail message advising that his substantive team leader position was to be advertised and filled as a Canberra based position. He tried to call back his AFP coordinator a number of times and left messages to be called back and subsequently emailed the coordinator but did not receive a response 21.

[33] On 20 October 2011 Mr Brandi received notification that his current work pattern had been reviewed and that the AFP Commissioner proposed to change his working pattern pursuant to the provisions of the AFP Collective Agreement 2007 - 2011. He provided a response to the AFP Commissioner and did not receive a response to his letter, and believes that his secondment conditions remained unchanged until March 2012 22.

[34] By mid 2012, Mr Brandi had worked away from the direct control and operations of the AFP for over three years. From April 2009 to 30 June 2012, he was seconded firstly to the NIFS in Melbourne and then to the Australian ANZPAA 23. His immediate manager, Dr Kirkbride, formed a view about April or May 2012 that:

“It became apparent to me in or about April or May 2012 that as a result of James Brandi’s secondment to the National Institute of Forensic Science drawing to a conclusion that James Brandi would have to be re-deployed or made redundant”. 24

[35] Rearrangement of the workplace prior to the formation of that view by Dr Kirkbride meant that the team from which Mr Brandi had departed in 2009 was no longer constructed in the way it had been when he left. In the scheme of Mr Brandi’s employment this arrangement, of itself, does not appear to be unusual. For example in March 2006 Mr Brandi had been transferred to Melbourne returning to what he describes as his substantive role as Team Leader Document Examination Team 25. However late in 2010 a new Team Leader position was created in Canberra that would undertake duties previously undertaken by Mr Brandi26.

[36] Mr Slater’s evidence is that the rearrangement of the workplace arose in 2010 when Mr Brandi’s then manager created a new team leader position that would be Canberra based and take over the duties of Mr Brandi’s substantive position. 27 There was a wider context of changes to other positions resulting from reduced demand for document examination services.28 Changes were given effect to after Mr Slater approached the AFP’s Portfolio Budget Monitoring Committee which noted Mr Slater’s proposal without explicit decision.29

[37] The evidence before the Commission about the reasons for Mr Brandi’s return from secondment to the AFP indicates that by at least April 2012 the AFP was advised the forensic standards Project upon which Mr Brandi was seconded to work would not continue in the 2012/13 financial year and that as result a secondment would not continue beyond 30 June 2012 30. As would be expected with such eventuality, the subject of Mr Brandi’s return and the need to find him duties upon return was known to Dr Kirkbride and to Mr Slater31 as well as to Ms Gonzales, the Senior Business Adviser – Human Resources. Ms Gonzales provided evidence which indicates at least she and Dr Kirkbride had discussions about Mr Brandi’s return and what that meant and that these discussions commenced in April 201232. Ms Gonzales made enquiries within the organisation about whether alternative positions in existed in either Melbourne or Canberra and concluded there were no permanent positions available in Melbourne but that there was some possibility of a position being available in Canberra and Sydney33.

[38] By at least 14 May 2012, Dr Kirkbride was communicating the view, with at least Ms Gonzales, that there may be a need to consider a redundancy of Mr Brandi upon his return from secondment. On that date, he consulted with Ms Gonzales about a draft letter to Mr Brandi. The draft included a reference to a possible voluntary redundancy. Ms Gonzales’s evidence is that she amended the draft by removing the references to voluntary redundancy. Her evidence in this regard is as follows;

“20 I recall discussing the amended letter with Dr Kirkbride on or after 15 May 2012. During our discussion, Dr Kirkbride raised the possibility of offering Mr Brandi a voluntary redundancy, if no suitable position could be found. I advised Dr Kirkbride that a voluntary redundancy could not be offered at that time because there was a process to be followed under section 58 of the Agreement. However, I recall saying to Dr Kirkbride that this option could be discussed with Mr Brandi on an informal basis at this time.

21 I am aware that on 21 May 2012, Dr Kirkbride sent a final version of the letter I had previously reviewed to Mr Brandi ... . This letter confirmed that the AFP was continuing to look for other positions in the Melbourne office outside of the Forensics and Data Centres, which might be suitable for Mr Brandi. There was no reference in this letter to voluntary redundancy.” 34

[39] The letter actually sent by Dr Kirkbride to Mr Brandi on 21 May 2012 (referred to as the Options Letter) advised Mr Brandi broadly that his secondment to NIFS would cease on 1 July 2012 and referred to three options for his consideration 35. The letter included the following;

“21 May 2012

Mr J Brandi

Dear Jim,

I wish to advise you that the Director NIFS has officially confirmed that the Forensic Standards project will not be continued into next financial year. As a consequence your secondment to NIFS will cease as of 1 July 2012.

Subsequent to discussions between you and me in regards to arrangements after 1 July please find options below for your consideration.

You advised that your first preference would be to continue your involvement in forensic operations in our Melbourne office and furthermore you would be flexible in regards to the Band level of such involvement. Unfortunately, there are currently no positions available at Band 6-8 in FDC in Melbourne office.

As an alternative you advised me that you would be prepared to take up an appointment in the AFP Melbourne office outside the F&DC portfolio. I discussed this possibility with HR and they are now exploring alternative options for you in the Melbourne office. Thank you for providing your CV in this regard.

As discussed, there are general chemistry and document examination positions available in Canberra. There is also a current vacancy in the Illicit Drug Data Centre in Sydney.

Given that your secondment will cease shortly, as soon as practicable would you please advise us of your preferred course of action.

Please contact me on 02 xxxxxxxx or our Senior HR Advisor, Heidi Gonzalez on 02 xxxxxxxx if you have any questions.”

[40] A plain reading of the Options Letter shows that, having referred to “options below for your consideration” the paragraph immediately after that reference is no more than an advice that a suitable non-forensic role in Melbourne has not been found. As such, that paragraph cannot be regarded as an option. However the paragraphs that follow show Dr Kirkbride put forward three options for Mr Brandi’s consideration.

• In the fourth paragraph, Dr Kirkbride referred to “exploring alternative options for you in the Melbourne office”;



• In the fifth paragraph, he referred to “general chemistry and document examination positions available in Canberra”; and



• Also in the fifth paragraph, he referred to “a current vacancy in the Illicit Drug Data Centre in Sydney”.

[41] Dr Kirkbride’s Options Letter ended by inviting Mr Brandi “as soon as practicable [to] please advise us of your preferred course of action”.

[42] The evidence indicates that Dr Kirkbride continued to consider voluntary redundancy as an alternative to placing Mr Brandi in a position after he returned from secondment, even after Ms Gonzales’ changes to his earlier email. Before 6 June 2012, Dr Kirkbride recollects communicating with Mr Slater “about the quantum of the voluntary redundancy for James Brandi.” 36 On 6 June 2012, Dr Kirkbride sought and obtained approval from Mr Slater for the AFP HR team to undertake a calculation of the benefits which Mr Brandi would receive if he were to be offered a voluntary redundancy37.

[43] On 4 June 2012 Dr Kirkbride sent an email to Ms Gonzales for her comment. The email asked Ms Gonzales to consider an attached letter and advise of any modifications before Dr Kirkbride sent a final version to Mr Brandi. Dr Kirkbride advises that “I have spoken with him and advised that the letter will arrive and that there are now only two options for him.” 38 The draft correspondence that was attached to the email states that a suitable position is not available in the AFP office and that instead there were general chemistry and document examination positions available in Canberra and that in the event a transfer to Canberra is not acceptable it asks “whether you wish to take up the option of securing a voluntary redundancy package”39. Dr Kirkbride agrees that prior to 6 June he had been discussing these issues with Mr Brandi40, which is consistent with Ms Gonzales’ earlier approval for him to do so41.

[44] The evidence indicates that Ms Gonzales responded to the email. Ms Gonzales’ response to Dr Kirkbride was forwarded more than 24 hours later merely indicating to Dr Kirkbride that she had made a couple of changes and invited him to give her a call if he wished to discuss them. Attached to Ms Gonzales email at that time was the following amended email with the changes tracked by her continuing to be shown;

“4 June 2012

Mr J Brandi

Dear Jim,

I wish to advise you formally that HR have attempted to find you a suitable non-forensic role in the AFP Melbourne office. It would appear that a suitable position is not available currently.

As I have advised previously, there are general chemistry and document examination positions available in Canberra.

Would you please advise me and Heidi Gonzalez by COB Friday 22 June as to whether if you wish to transfer to Canberra. If not, the Workforce Adjustment process as per the AFP Enterprise Agreement 2012-2016 will be followed. or whether you wish to take up the option of securing a voluntary redundancy package.

Please contact me on 02 xxxxxxxx or our Senior HR Advisor, Heidi Gonzalez on 02 xxxxxxxx if you have any questions.

Yours sincerely” 42

[45] Following this exchange, Dr Kirkbride subsequently sent to Mr Brandi a letter which was different to the amendments included within the earlier email exchange between he and Ms Gonzales. This letter is the Contested Redundancy Offer. The letter he sent to Mr Brandi on 6 June 2012 by email at 11:25 AM is set out below;

“6 June 2012

Mr J Brandi

Dear Jim,

As I have indicated to you previously, the Director NIFS has officially confirmed that the Forensic Standards project will not be continued into next financial year. As a consequence your secondment to NIFS will cease as of 1 July 2012.

Subsequent to discussions between you and me in regards to arrangements after 1 July please find options below for your consideration.

I wish to advise you formally that HR have attempted to find you a suitable non-forensic role in the AFP Melbourne office. It would appear that a suitable position is not available currently.

I also wish to advise you that the AFP is offering you a voluntary redundancy package. If you are willing to accept the package please notify Heidi Gonzalez and me of you (sic) decision before COB Friday 22 June.

As I have advised previously, there are general chemistry and document examination positions available in Canberra at Band 6 and also the possibility of a position with the Australian Illicit Drug Data Centre in Sydney at Band 8. Would you please advise me and Heidi by COB Friday 22 June if you wish to transfer to Canberra; for relocation the conditions of the AFP Enterprise Agreement 2012-2016 will be applied.

Please contact me on 02 xxxxxxxx or our Senior HR Advisor, Heidi Gonzalez on 02 xxxxxxxx if you have any questions.

Yours sincerely” 43

[46] A plain reading of the Contested Redundancy Offer shows that after confirming to Mr Brandi that his secondment would end in the coming month, Dr Kirkbride refers to “options below for your consideration”. The paragraph immediately after that reference is no more than an advice that a suitable non-forensic role in Melbourne has not been found. As such, that paragraph cannot be regarded as an option. However, the following two paragraphs (paragraphs four and five of the overall letter) can be construed as presenting three options in all;

• In the fourth paragraph, Dr Kirkbride advises “that the AFP is offering you a voluntary redundancy package” and invites Mr Brandi to notify either Dr Kirkbride or Ms Gonzalez of his decision within 16 days of the date of the letter (by the close of business on 22 June 2012);



• In the fifth paragraph he advises “there are general chemistry and document examination positions available in Canberra at Band 6”. The language of this option implies it is a reference to more than one position;



• Also in the fifth paragraph Dr Kirkbride advises there is “the possibility of a position with the Australian Illicit Drug Data Centre in Sydney at Band 8”. The language of this option implies it is a single position. The letter does not explicitly invite a response to this option, although the language used in the letter as a whole impliedly invites a response.

[47] The options of positions in Canberra and Sydney are connected with an invitation to Mr Brandi to advise either Dr Kirkbride or Ms Gonzalez if he wishes to transfer to Canberra within 16 days of the date of the letter (by the close of business on 2 June 2012), and it advised him the 2012 Agreement’s relocation provisions will be applied. Although the paragraph gives no indication to Mr Brandi what he should do if he wishes to transfer to Sydney and does not specify a time-limit for his consideration of such a transfer, a balanced reading of the paragraph would suggest that he had to follow the same course of action in relation to a transfer to Sydney as the letter specifies for a transfer to Canberra. Neither the paragraph or any other part of the letter indicate whether a transfer of Mr Brandi to Canberra or Sydney would occur “as of right” (that is, he only had to say that is what he wanted and he would be appointed), or whether there would be conditions or application processes attached to any request.

[48] Before sending the Contested Redundancy Offer to Mr Brandi, Dr Kirkbride sought and obtained authority from Mr Slater on 6 June 2012 to have calculated an estimated voluntary redundancy payment. Mr Slater’s evidence is that he “did not think much of this request at the time because I understood it to be just our usual due diligence”. 44 The request was received by Mr Slater at 9:34 AM and authorised by him at 10:20 AM45, roughly one hour prior to Dr Kirkbride’s Contested Redundancy Offer to Mr Brandi. Ms Gonzales passed the authorised request to the relevant employees relations officer at 11:10 AM and did not receive a response that day.46

[49] Dr Kirkbride recollects having a conversation with Mr Brandi about the correspondence shortly after providing it to him, but does not recall exactly the nature of the conversation 47.

[50] The 6 June 2012 Contested Redundancy Offer was also sent by Dr Kirkbride to Mr Slater, whose evidence includes that he was “very unhappy” when he saw the letter 48 and;

“... I had not previously seen the letter sent to Mr Brandi by Dr Kirkbride earlier on 6 June 2012, and did not agree with its contents, as it purported to offer Mr Brandi a voluntary redundancy package.

Dr Kirkbride had not complied with the AFP’s process in sending the 6 June 2012 letter. While an excellent scientist and employee, Dr Kirkbride demonstrated that he had only the most basic understanding of the Agreement, and was generally not familiar with the AFP’s internal HR processes.

I left it to Ms Gonzalez to manage the issue of Dr Kirkbride pursuing the voluntary redundancy without approval, rather than intervene myself.” 49

[51] Subsequently the letter was seen by Ms Gonzales who recollects advising Dr Kirkbride on or about 6 June 2012 that his letter did not conform with the requirements of making a position excess under section 58 of the 2012 Agreement 50. Pointedly, Dr Kirkbride denies being told he did not have the necessary delegation or authority;

“14. On or about the 22nd of June 2013 James Brandi provided to me an email (annexed hereto and marked “PK 5” is a copy of that email). At no time after receiving the email of the 22nd of June 2012 did I have a conversation with James Brandi informing him that I did not have the necessary delegation or authority to make the offer of voluntary redundancy referred to at “PK 4”. I did not have any conversation with either Heidi Gonzalez or Julian Slater at any stage after the 6th of June 2012 in which I was advised that I did not have the necessary delegation or authority to make an offer of voluntary redundancy to James Brandi. Had such a conversation or conversations occurred I would have recalled them due to their importance.” 51 (emphasis added)

[52] Dr Kirkbride conceded as follows in cross-examination from Mr Harrington, for the AFP, that he had no authority of his own to make an offer of voluntary redundancy package;

“I’m putting to you, Prof Kirkbride, you had no authority to make that offer on 6 June 2012?---I personally could not offer him a voluntary redundancy package, that’s correct. I didn’t have the authority to do that.” 52

[53] In relation to whether he was authorised by others to make the offer, Dr Kirkbride’s evidence is that he does not recall whether he provided the 6 June 2012 letter to Ms Gonzales before sending it 53 and that he has no independent recollection of providing it to Mr Slater before sending it and that it is possible he had not provided it to Mr Slater54. Dr Kirkbride offers that he would ordinarily have provided Mr Slater with a copy of the document but was unable to refer to a conversation or correspondence in which that was done or in which he was authorised by Mr Slater to make the offer.55 Similarly he did not make any reference to an exchange with Ms Gonzales to the effect that the offer had been authorised by her, or her superiors.

[54] The 6 June 2012 Contested Redundancy Offer was sent by Dr Kirkbride at 11:25 AM 56 and Mr Brandi replied to him by email the same day at 4:30 PM in the following manner;

“From: Jim Brandi

Sent: Wednesday, 6 June 2012 4:30 PM

To: Kirkbride, Paul

Subject: RE: Options letter [SEC=UNCLASSIFIED]

Hi Paul,

As per Section 58, Part 3 of the AFP Enterprise Agreement, I am raising issues of concern regarding the declaration outlined in your letter.

1. I am currently in dispute with the AFP over an alleged salary overpayment. Until the dispute is resolved, I am unable to make an informed response to your letter.

2. I am under an active Comcare compensation claim. I am concerned about the impact the proposed declaration may have on my active claim.

a. It is my understanding that the SRC Act requires a return to work (RTW) plan to be implemented. The RTW plan was implemented, but has been suspended while I am seconded to ANZPAA. It was my understanding that my RTW plan would be re-activated when my secondment contract finished. Will the RTW plan be re-activated on the 1st July 2012?

b. What are the implications of the proposed declaration on my continuing Comcare compensation? Would I lose any of the cover or protections that I currently have under the SRC Act?

As per Clause 70, Part 5 of the AFP Enterprise Agreement, I request that you seek to resolve the outstanding matters and provide the other relevant information within 14 days of this date, as the normal response timeframe indicated in the Agreement.

Regards,

Jim” 57

[55] On 22 June 2012, Mr Brandi responded to Dr Kirkbride indicating he was willing to accept a voluntary redundancy package but with identified provisos (which is the Contested Redundancy Acceptance);

“I am willing to accept a voluntary redundancy package on the provision that I leave on a date to be agreed between myself and the AFP, as per clause 58.5(a) of the Australian Federal Police Enterprise Agreement 2012 – 2016. Specifically, I agree to accept a voluntary redundancy package leaving the AFP on a date after an existing pay dispute between myself and the AFP has been resolved.” 58

[56] Mr Slater’s evidence in relation to the Contested Redundancy Acceptance is that “he did not consider this a proper response as it was a conditional acceptance, meaning that he accepted only on the basis that the timing could be agreed ‘sometime in the future’.” 59 Ms Gonzales was on leave when the 22 June 2012 correspondence from Mr Brandi was received and did not see it until 29 June60 and does not have contemporaneous evidence about the correspondence.

[57] From this point in late June 2012, the interaction between Mr Brandi and the AFP included consideration of him moving to an alternative position, which included consideration of a return to work plan within the framework of a Comcare Rehabilitation Plan.

[58] The evidence in this regard includes that on 28 June 2012, Dr Kirkbride wrote to Mr Brandi wanting to discuss a return to work plan under the Safety Rehabilitation and Compensation Act. In the course of the correspondence Mr Brandi was offered a temporary position in Melbourne in the Quality Management team, reporting to a person in Canberra. In the course of the correspondence Dr Kirkbride acknowledged to Mr Brandi that his earlier correspondence indicated his “active Comcare claim and the negotiations relating to over-payment of salary are significant issues impacting upon the offer of voluntary redundancy package at this time”. 61

[59] Also on 28 June 2012, Mr Slater received a text message from Mr Brandi which he referred to in an email to Dr Kirkbride next day. The email that Mr Slater sent to Dr Kirkbride shows the following (insofar as it refers to the text message);

“Interestingly I received a text message from Jim last night (about 8:16 pm) saying ‘thanks Julian, happy to be staying on board and looking forward to the work ahead. JB’” 62

[60] There were several communications back and forth between the parties in which the location of the position was questioned and its duties articulated. The return to work plan was ultimately included and signed by Mr Brandi, Dr Kirkbride, and the AFP return to work coordinator. 63 The plan referred to provision of a Quality Management role which would facilitate Mr Brandi’s return to work in the short-term, and that “concurrently, Mr Brandi is also to (sic) engaging in jobseeking activities to identify a suitable, permanent position either within or outside of the AFP”64.

[61] After the conclusion of the return to work plan the subject of the location of the position referred to continued to be an issue. There were several exchanges between the parties as to whether the position was to be located in Melbourne or Canberra, with the AFP at one stage indicating categorically it was to be in Canberra 65. Mr Brandi contested this on medical advice66. Mr Slater noted that as a consequence Mr Brandi was advised Ms Gonzales “would look into an alternative role for Mr Brandi that was based in Melbourne”.67 Ms Gonzales notes in respect to this exchange that it was her;

“... understanding from this email that while Mr Brandi was prepared to accept this role, he had medical advice that he could not meet the travel requirements to Canberra and wanted to be based in Melbourne. Mr Harrison 68 acknowledged this issue, and advised Mr Brandi that HR (i.e. myself) would be involved to find a suitable alternative position that accommodated his medical restrictions.”69

[62] Subsequently Mr Brandi went on leave. While he was away there were enquiries and discussions between several people including Mr Slater, Ms Gonzales and Dr Kirkbride about alternative positions for Mr Brandi. These discussions and enquiries led to Dr Kirkbride discussing with Mr Brandi and subsequently emailing him on 9 August 2012 about an alternative quality management position within the forensic and data centres team working out of Melbourne but with travel to Canberra and other offices as required. Dr Kirkbride referred to this as being an ongoing role rather than a temporary one. 70

[63] The AFP subsequently created two Band 6 Quality Management positions, one of which was to be in Melbourne and which was offered to Mr Brandi on 31 August 2012. 71 Since the position was at the lower Band 6 level instead of a Band 8 level with a consequential salary differential, there continued to be some concern on the part of Mr Brandi about salary maintenance. In the 12 months after approval of the 2012 Agreement, the salary range for a Band 8 employee was $97,414 – $106,033 and for a Band 6 employee it was $82,436 – $90,953.72 Between 4 and 6 September 2012, Mr Brandi exchanged several emails with Ms Gonzales about the issue. On 4 September 2012 he asked Ms Gonzales a question about salary maintenance if he accepted the role the Band 6 level; on 6 September Ms Gonzales enquired whether an HR staff member had answered his question; and on 6 September 2012 Mr Brandi responded to Ms Gonzales as follows;

“Hi Heidi, no I don’t have a response yet. If you could help out, that would be great.

I was wondering if this is being done under the VR offer (see attached)? If so I would be eligible for make-up pay for 12 months under Section 58, Part 14 according to the Enterprise Agreement.

Otherwise, it seems that F&DC are not following the Agreement and I’m being put at a disadvantage.

Thanks for keeping tabs on this.

Jim” 73

[64] In relation to the email exchange referred to above, Ms Gonzales’s evidence includes the following

“49 I was surprised by Mr Brandi’s email for a number of reasons, being:

(a) I had understood that Mr Brandi did not want to accept a voluntary redundancy, given that the overpayment issue was still ongoing; and

(b) I had understood that, given the discussions that had occurred since late June 2012, that Mr Brandi intended to accept the Quality Management position and as such would be remaining as a permanent employee with the AFP.

50 Notwithstanding his comment, I focused on answering what I understood to be Mr Brandi’s primary question, being whether he would have his higher Band 8 salary maintained in the Band 6 Position. I do not specifically recall responding to Mr Brandi in relation to his question about the ‘VR’. I believe that the reason for this would have been that I did not think it was useful to dwell on or go back to the discussions about the voluntary redundancy, as we had moved on from this.” 74

[65] Shortly after this exchange, on 14 September 2012, Mr Slater received an email from Mr Brandi advising that he was still receiving some advice from HR, and that he intended to confirm the offer by Monday, 17 September 2012. Mr Slater said in response that he was happy for Mr Brandi to hold off a little while “but I would like to get this sorted”. 75 A few days later, Ms Gonzales advised Mr Slater that, in relation to the differential between the Band 6 and Band 8 salaries, Comcare would pay Mr Brandi the difference “for the period in which his Comcare claim was still active”.76 Together with other details about the position, this advice of salary maintenance was subsequently formalised to Mr Brandi in correspondence from Mr Slater, dated 3 October 201277.

[66] On 10 October 2012, Mr Brandi rejected the offer that had been put forward by Mr Slater and on the same day submitted an application for long service leave for the period 15 October to 21 December 2012. While Mr Brandi’s witness statement refers to his rejection being in relation to a revised formal offer of a permanent position on 10 October 2012, it appears that rejection refers to correspondence provided by Mr Slater which is dated 3 October 2012. Mr Brandi refers to his rejection of the offer in the following way;

“38. On the 10th October 2012 (sic) I received a revised formal offer of a permanent position as team member within the QM team within Forensics. The position offered was at Band 6.3 level. I responded to the formal offer in writing rejecting the offer as I felt that I could not perform in the role from within Forensics Melbourne Office at that time.” 78

[67] At about the same time as this development, Dr Kirkbride provided to Mr Slater a communication he had received from Mr Brandi. This statement is lengthy and indicates a significant amount of grievance on the part of Mr Brandi with how he has been treated. It refers to complaints having been made about him by others, the details of which he refers to as being untrue, embellished and unsubstantiated. At the least the statement discloses a level of agitation on the part of Mr Brandi about how he had been treated and a fair reading would connect that agitation with his refusal of the offer then being made. It is not necessary to repeat the statement in total, however importantly it indicates the following;

“Today (the 10th October 2012) I received the revised offer of Band 6.3 position in the Quality Management Team. I understand that my pay would be made up to my current Band 8.3 under my compensable claim with Comcare. I note that a response is also due today.

Unfortunately, despite my previous intention to accept the offer, I must explain that I do not feel that I can make a decision about the offered role at this time due to the harassment I have been subjected to in the F&DC Melbourne Office. The following explains how I have come to this decision.

...

Due to my history of health problems associated with dealing with stressful situations within the work environment, especially having a (sic) had a stress related heart attack five years ago, the only way I can be sure to avoid further harassment and the potential aggravation to my health while dealing with my compensable injury (PTSD), is to take long service leave from now until the end of 2012.

For these reasons, I cannot respond to the offer of a position within the Quality Management Team as I cannot perform the role in this environment.” 79

[68] After this was received by Mr Slater he and Mr Brandi discussed the matter of his rejection of the job offer on the same day.

[69] Mr Brandi’s witness statement indicates the following;

“40. On the same date (10th October 2012) I was contacted by the National Manager Forensics (by telephone) and we discussed the situation. Unprompted by me he stated that he knew I wanted to proceed with the VR that had been offered to me and he then stated: “that is not going to happen.” He expressed his concern that I was not willing to accept the Band 6 position being offered and that I wanted to take LSL until the end of the year. He expressed annoyance and stated that my refusal to accept the offered position implied an ulterior motive. He suggested that I reconsider my options. I agreed to do so.” 80

[70] In contrast, Mr Slater’s witness statement records the conversation in the following way;

“After receiving this statement, I called Mr Brandi to discuss the issue. I recall from this discussion that Mr Brandi was agitated regarding a workplace conflict that had been developing since July 2012. Mr Brandi was keen to take long service leave which would remove him from the workplace and that conflict but would also serve to delay the implementation of his return to work plan and the resolution of the workplace conflict. I told him that I valued him very highly as an employee, and that I believed he could make a real contribution in the Quality Management position, I encouraged him to consider commencing the role now rather than going on long service leave. I do not recall saying the words set out in Mr Brandi’s statement at paragraph [40] about the VR. There had been no discussion that I was aware of about a voluntary redundancy for a considerable period of time.

30 The discussion was open and cordial. I deny that I was annoyed or placed any pressure or duress onto Mr Brandi to accept the position. I did not suggest that he had an ulterior motive. In fact, I told him that if he needed a bit more time to consider the job offer, he could take another week. By the end of the discussion, I was of the view that Mr Brandi agreed that the position was a good opportunity and that he wanted to accept the role, and that he intended to withdraw his long service leave application.” 81

[71] Subsequently, on the following day, 11 October 2012, Mr Brandi withdrew his long service leave application and accepted the Band 6 role being offered 82. In relation to this role, Mr Slater records;

“[t]his remains his current position and it is a required role. Mr Brandi’s position is part of small, three person team who are responsible for managing the quality control systems for six AFP laboratories, to ensure that all work meets the required accreditation standards. Mr Brandi’s responsibilities extend to supporting the regional laboratories i. e. Outside of the main laboratory in Canberra (where the team leader and an additional team member works).” 83

JAMES BRANDI’S CASE

[72] The Applicant’s case has proceeded on six broad grounds;

• Mr Brandi’s position was declared excess and there was an offer of voluntary redundancy;

• Mr Brandi argues that on 21 May 2012, Dr Kirkbride, Mr Brandi’s direct manager, advised Mr Brandi that his position was excess and offered him voluntary redundancy which he accepted. 84



• Mr Brandi further argues that the proper construction of the letter to him on 21 May 2012 is that his substantive position was no longer in Melbourne and that there were no other equivalent banded level positions for him in Melbourne. 85 At this point, if not before, he had been determined to be excess and was entitled to the protection of Section 58.86

• Officers of the AFP held themselves out, through their conduct, as being able to offer voluntary redundancy to Mr Brandi (for reason of ostensible authority);

• Mr Brandi argues in response to the AFP position that there was no person authorised to put a voluntary redundancy offer to him, that Dr Kirkbride was authorised in accordance with the doctrine of ostensible authority and held out that to Mr Brandi that he was acting with the AFP’s authority.



• Mr Brandi argues he was entitled to rely upon that representation, and did so.



• Further, in the way of an alternative argument in the event that he is found to have made a conditional acceptance of an offer of voluntary redundancy, he argues that while his initial response may have been conditional, the subsequent conduct of the AFP amounts to an acceptance of the condition that he put on the acceptance of the offer. 87

• There was an acceptance of the offer of voluntary redundancy;

• Mr Brandi argues that he accepted the offer made to him of voluntary redundancy.



• He argues that, in so far as his Contested Redundancy Acceptance letter 22 June is concerned references to acceptance being connected to leaving on a date after an existing pay dispute has been resolved are not conditions. He argues the 2012 Agreement itself (in section 58(5)) makes a departure on voluntary redundancy to be either within 14 calendar days of accepting the offer, or at another date agreed on. Further, he argues the reference to leaving after an existing pay dispute is resolved is not presentation of the condition.

• The construction that should be given to the 2012 Agreement voluntary redundancy procedures allows the view those procedures have been activated and followed;

• Mr Brandi argues that the 2012 Agreement should be construed broadly and that it is necessary to take account of the whole of the circumstances between he and the AFP, as well as the way in which the AFP actually uses the sections referred to in order to resolve the dispute. 88



• He argues that when the 2012 Agreement uses the word “determination” it has no legal or formal meaning. In effect there was a determination made to declare Mr Brandi excess when the portfolio budget monitoring committee made its decision in late 2010 to rearrange the team Mr Brandi worked for (when his Melbourne position was reconstituted as a Canberra based position)  89.



• Mr Brandi argued that the AFP Commissioner’s delegations of responsibilities under the 2012 Agreement, at least in respect of his particular circumstances, were not the only pathway by which a position could be declared excess. Whereas HR may want to have a rigid process followed in order to manage redundancies, the HR systems the AFP had, but did not follow, do not confine the application of the 2012 Agreement’s section 58 90. Notwithstanding this non-exclusive process of declaration of excess or offer of redundancy, Mr Brandi argued that irrespective of who declares a position excess and makes an offer of redundancy, there is a mandatory process applying from the time that a person is declared excess which requires such employees to be subjected to a redeployment consideration or a reduction in classification or redundancy. Counsel for Mr Brandi referred to this as being a mandatory obligation and not a discretionary matter for the AFP Commissioner.91

● Mr Brandi complied with the 2012 Agreement’s requirements for voluntary redundancy;

• Mr Brandi, through his subsequent conduct complied with the provisions of the 2012 Agreement as they relate to voluntary redundancy 92, and that his subsequent acceptance of an alternative position did not remove his acceptance of a voluntary redundancy93;



• Mr Brandi points to his response to the Contested Redundancy Offer within the timeframe set out in the document (that is by the close of business on 22 June 2012). He views the response as being consistent with the choice allowed, which is a choice between voluntary redundancy or redeployment or reduction.

• Whether there is a binding contract for voluntary redundancy, invalidly repudiated by the AFP;

• That the offer of voluntary redundancy and its acceptance by Mr Brandi constituted a binding contract which has been invalidly repudiated by the AFP 94.



• Mr Brandi contends that having accepted the AFP’s offer without condition the fact that it has never been effected is a repudiation by the AFP of its obligations under a contract. 95

THE AFP CASE

[73] The AFP submits broadly that none of the jurisdictional prerequisites contained within section 58 of the 2012 Agreement have been met.

[74] The section requires the AFP Commissioner or their authorised delegate to have determined an employee is excess and to have notified them of that fact and sought the employee’s response. Having allowed time for a response, the AFP Commissioner or their properly authorised delegate must have considered any response provided and then made a final declaration employee is excess.

[75] The AFP argues that none of this occurred.

[76] The AFP case addressed each of the grounds identified above by Mr Brandi, and further submitted that Mr Brandi’s demonstrated contemporaneous knowledge shows even he did not believe a valid offer of voluntary redundancy had been put forward.

[77] Because of the way Mr Brandi’s case has progressed, it is convenient to address this overarching submission of the AFP in the context of consideration of each of the grounds advanced by the Applicant, as well as its further point, the state of Mr Brandi’s knowledge about being offered voluntary redundancy.

[78] The AFP submitted the following in relation to the matters the submissions advanced by Mr Brandi;

• Whether Mr Brandi’s position was declared excess and there was an offer of voluntary redundancy;

• The AFP argues that there was never a declaration that Mr Brandi was excess and there was never a properly authorised offer of voluntary redundancy. Any actions taken by Dr Kirkbride were not actions of the AFP Commissioner or his delegate under section 58(1). 96



• In the alternative that there was a determination Mr Brandi was excess to requirements, he did not accept the offer within the meaning of section 58(5) (a). 97



• The AFP refers to the evidence of Dr Kirkbride to the effect that he knew he was not authorised to make an offer 98 and that he acted contrary to how he had been advised by Ms Gonzales on 5 June 2012.99

• Whether Officers of the AFP held themselves out, through their conduct, as being able to offer voluntary redundancy to Mr Brandi (for reason of ostensible authority);

• The AFP rejects the proposition that the organisation can be bound to a purported offer merely because a manager acting outside of formal processes uses the words “voluntary redundancy” to an employee, and to accept such a proposition overlooks the detail of section 58. The AFP argues that to do so would require reading into nonexistence the words and procedures contained in section 58. 100



• The AFP argues that the submission that Mr Brandi relied upon the ostensible authority of Dr Kirkbride in receiving, accepting and relying upon the representation in the 6 June 2012 letter is thoroughly misconceived. It argues there was no reliance by Mr Brandi upon the representation and he suffered no detriment by reason of the reliance when he purported to conditionally accept the offer of voluntary redundancy.

• Whether there was an acceptance of the offer of voluntary redundancy;

• The alternative submission put forward by the AFP in the event that it is found there was a declaration that Mr Brandi was excess to requirements is that he provided a conditional counter offer that was uncertain and not agreed to by the AFP. This Contested Redundancy Acceptance was made more than 14 days after the offer was made (meaning it failed to meet the process steps set out within section 58 (1). 101



• The AFP submits, in relation to this alternative argument, and because of all of Mr Brandi’s conduct, that it follows Mr Brandi either declined the voluntary redundancy offer or the AFP was entitled to assume that he had. The AFP argue that Mr Brandi subsequently accepted a redeployment position and that such acceptance is mutually exclusive to the option of accepting a voluntary redundancy. 102

• Whether the construction that should be given to the 2012 Agreement voluntary redundancy procedures allows the view those procedures have been activated and followed;

• The AFP submit that the context of the 2012 Agreement demands that section 58 be seen as establishing a staged process for management of excess personnel. The stages include the determination of whether a person is excess; the consequential declaration that a person is excess; the management of offers of voluntary redundancy; together with provisions for the time of departure of the employee and the implementation of any voluntary redundancy separation process. This process had not been put into play in June 2012. 103



• The AFP submit that the principles applying to the construction of statutory agreements lead to a view that it is a process that cannot be stepped around and that the public sector context of the Agreement as a whole reinforces that view. A proper construction and plain reading of section 7 of the 2012 Agreement permits the AFP Commissioner to delegate power or function under the Agreement. The evidence before the Commission is that this has been done and that a limited range of persons hold delegations to exercise powers or functions under section 58(1) of the 2012 agreement. Dr Kirkbride was not one of them and neither is it asserted that he is such a person. 104

• Whether Mr Brandi complied with the 2012 Agreement’s requirements for voluntary redundancy;

• The AFP submits that the jurisdiction of the FWC to deal with the dispute as put forward by Mr Brandi is not in place since the pre-requisites of section 58 of the 2012 Agreement have not been met.



• The AFP’s primary argument in this respect is that Mr Brandi’s present Band 6 team member position is required and is not excess to requirements 105. Similarly the position Mr Brandi held in June or July 2012 was not excess to requirements and the actions of Dr Paul Kirkbride were not actions of the AFP Commissioner or his delegate under the 2012 Agreement’s section 58 (1)106.



• The AFP submits that, in any event, Mr Brandi did not comply with the requirements of section 58 in that he neither elected a clear choice between voluntary redundancy on the one hand and redeployment or reduction on the other, but instead provided a conditional response that it was for the AFP to accept or reject. Further, such response was later than 14 calendar days of the purported notification of the proposal to declare him excess (which is the time limit provided by the section).

• Whether there is a binding contract for voluntary redundancy, invalidly repudiated;

• The AFP submits the matter presently before the Commission involves a narrower scope by virtue of s.739 of the FW Act than that argued in Mr Brandi’s submission to the effect there has been a binding contract invalidly repudiated by the AFP. The AFP see no application on this point of the precedent to which Mr Brandi refers, being the NSW Nurses Association case 107, decided in the NSW Court of Appeal, which involved the determination of contractual rights and liabilities which were not referable to a statute or industrial instrument.



• The AFP argues that section 70(1) of the 2012 Agreement limits the disputes which the FWC may deal with pursuant to s.739(1) to those “arising from this agreement” 108.

[79] The AFP also put forward the submission that the state of Mr Brandi’s knowledge about the Agreement in mid-2012 is a matter to be taken into account. About this factor, the AFP argues a finding should be made that in June 2012 Mr Brandi knew about the processes set out within section 58 of the 2012 Agreement and that he found out contemporaneously that Dr Kirkbride had not complied with the normal process of making an offer for redundancy 109. It argued that “not even Mr Brandi thought the section 58 process had been properly invoked or completed in June 2012. As early as 29 June 2012 Brandi quite sensibly decided to get on with his career in the AFP. That career continues today, some 18 months later.”110

CONSIDERATION

[80] I have previously referred to the scope of the dispute to be arbitrated to be this matter as being the following question;

“Is the applicant entitled to have his acceptance of an offer of voluntary redundancy upheld?”

[81] The contention that Mr Brandi’s position was declared excess and an offer of voluntary redundancy made invites an examination of the conduct of the AFP and the people involved, in order to determine whether any person might have been authorised to declare a position excess or put an offer and whether such actions were actually taken.

[82] The AFP puts forward a view to the effect that only persons directly authorised by the AFP Commissioner’s Delegations are permitted to take such actions. On the other hand, Mr Brandi proposed that the scope of people who may take the actions referred to in section 58 can be wider, and was wider in the case of Mr Brandi.

[83] The 2012 Agreement sets out in Section 58 a detailed framework for dealing with excess positions, redeployment of incumbents and redundancy.

[84] It is argued by Mr Brandi that a broad construction of the 2012 Agreement allows the view to be formed that the conduct that Mr Brandi experienced amounted to an offer and acceptance of a redundancy. He argues that a declaration of excess is not necessarily an affirmative action on the part of the AFP Commissioner or their delegates; instead it might be the effect of cumulative actions. For example, the use of the word “determines” in sub section 58(1) in the phrase “[w]here the Commissioner determines that one or more Employees are excess…” does not have to be a formal decision and instead can be a relatively informal or consequential managerial decision. It is argued;

“‘Has there been a determination?’ The circumstances of this case are that Mr Brandi’s substantive position was as a team leader in the Forensic and Data Centre (FDC) Portfolio based in Melbourne. His family and support lived in Melbourne. It has been determined that his substantive position as Team Leader has been shifted to Canberra. It is clear that a decision had been made, a determination. ...” 111

[85] Similarly it is argued that through the AFP’s authorisation of the restructure of the FDC it determined that Mr Brandi was in excess within the meaning of sub section 58(2)(c). On this analysis, the determination could have been in 2010.

[86] A corollary of this construct would be the view that the correspondence from Dr Kirkbride to Mr Brandi, dated 6 June 2012 was in satisfaction of the process set out in section 58(3) which requires notification to an employee in writing of a proposal to declare them excess to the AFP’s requirements.

[87] Mr Brandi argues that the notification and related processes were set in train as a result of the interactions between Dr Kirkbride and Mr Brandi in mid 2012. He argues that his Contested Redundancy Acceptance correspondence of 22 June 2012 was the acceptance by him of the first of two options that were put to him in Dr Kirkbride’s correspondence of 6 June 2012. He argues that this acceptance was an unequivocal , unconditional acceptance of a voluntary redundancy package, albeit that his response included reference to him leaving on a date to be agreed between he and the AFP and after the date on which an existing pay dispute between he and the AFP had been resolved. He disagrees these references were conditions upon his acceptance.

[88] Mr Brandi invites the construction of the Agreement in a way that would allow either that he was automatically declared excess because of circumstance or that Dr Kirkbride was able to declare his position redundant without having to go through the notification or declaration phases referred to above. 112

[89] The AFP submits instead that the machinery of section 58 has not been engaged and submits that the section needs to be construed as setting out a detailed process which must be followed step-by-step. The AFP submits that it is necessary, in forming this view about the operation of the 2012 Agreement, for the Commission to have regard to the public service context in which the AFP operates. It was submitted that this context shows the existence of formal delegations from the AFP Commissioner to relevant nominated managers and officers in the exercise of functions under the 2012 Agreement. Because Dr Kirkbride was not one of those holding a delegation, anything he purported to do could not be considered to be in furtherance of actions that can be taken by others to determine positions excess and individual subject to processes of voluntary redundancy.

[90] It was argued by the AFP that the AFP Commissioner is at the apex of a public sector organisation and that a proper construction and plain reading of section 7 of the 2012 Agreement permits the AFP Commissioner to delegate power or function under the Agreement 113 and that;

“45. On any plain reading of clause 58 of the 2012 agreement, it establishes a process for:

a) the determination of whether a person is excess;

b) the declaration that a person’s access;

c) management of offers of a VR;

d) the time for departure; and

e) the implementation of any VR separation process.”

46. On the evidence adduced in the Commission in this application, that process was not put into play in June 2012.”  114

[91] In the matter of Australian Taxation Office v Davies 115, the Full Bench considered, in the context of an appeal being heard relating to the question of an employee’s entitlement to payment for “Restriction Duty” arising under a collective agreement, a contention on the part of the employer that there had not been a formal direction to the employee from an officer holding an appropriate delegation from the Australian Taxation Office (ATO) Commissioner in accordance with the collective agreement. The Full Bench noted that Clause 49 of the ATO Agreement provided;

“[6] Clause 49 of the 2006 Agreement deals with Restriction Duty. Clause 49.3 provides for payment for Restriction Duty, the elements of which are defined in clause 49.1:

“49. Restriction duty

General

49.1. A full time employee may be directed to be contactable and to be available to perform extra duty outside of ordinary hours of duty.

…

Eligibility for Payment

49.3. Payment will only be made where the restriction has been imposed by prior direction or, where the circumstances did not permit prior direction, by subsequent approval in writing.” 116

[92] The critical question that arose in ATO v Davies was whether or not the employee had been directed to restricted duty and how that question could be resolved within the context of the agreement. The Full Bench found;

“[63] In the context of the 2006 Agreement as a whole, a “direction” within the meaning of clause 49.1 connotes compulsion – an order or command. An employee who has been given a direction under clause 49 is prima facie liable to disciplinary action if they are uncontactable to the period of restricted or, if contracted, are unavailable to perform extra duty outside of ordinary hours of duty.

[64] The 2006 Agreement, like its predecessor agreements, is very long and is written in a formal and precise style that suggests preparation by lawyers. The context in which the 2006 Agreement was made, including the status of the ATO as a very large organisation within the Australian Public Service to which the Public Service Act 1999 applies, is an important consideration in construing the 2006 Agreement. The establishment and maintenance of formal management procedures and policies, including establishing clear lines of authority for the exercise of executive power by public servants, are essential to the proper functioning of such an organisation. The form and content of the 2006 Agreement reflects as much. In this context, it may be noted that s.78 of the Public Service Act 1999 makes provision for a formal system of delegations within agencies of the Commonwealth whereby all executive power is exercised by the agency head or through delegations ultimately stemming from the agency head. It is inherent in the way in which public servants perform their duties in a public sector organisation like the ATO that they perform them in accordance with the Public Service Act 1999 and other applicable legislation and delegations that flow from that legislation. In particular, clause 135 must be construed in the context of that formal system of delegations provided for in s.78.

[65] Clause 49 makes no reference to the use of forms. We agree with her Honour that the mere fact that the prescribed forms have not been used does not prevent a valid direction to perform Restriction Duty being issued under clause 49. However, in our view, the structure of the 2006 Agreement, and the context in which it was made, are such that, while a direction under clause 49.1 need not be in writing, it must be formal in the sense that it must be express as to the matters referred to in clause 49.1. That is, there must be a communication, written or oral, from the Commissioner or a person holding a delegation from the Commissioner pursuant to clause 135, directing the full time employee “to be contactable” and “to be available to perform extra duty outside of ordinary hours of duty”. There is no scope for an implied direction within the proper meaning of clause 49.1.” 117 (references omitted)

[93] Interpretation of the 2012 Agreement requires a construction of a section agreed by the parties and contained within an Agreement approved by the FWC. In doing so, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning 118. The task is not “to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written”.119 Consistent with the Full Bench’s approach in ATO v Davies, it is proper to have regard to the context of the 2012 Agreement to form a decided view; per Cape Australian Holdings Pty Ltd (T/A Total Corrosion Control Pty Ltd) v Construction, Forestry, Mining and Energy Union;120

“[7]As to the general approach to the construction of enterprise agreements the observations of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (Wanneroo) are apposite:

“[53] The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘....ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).”

[8]While his Honour’s observations were made in the context of interpreting an award the same principles apply to the interpretation of enterprise agreements. For example, similar observations were made by their Honours Gummow, Hayne and Heydon JJ in Amcor v CFMEU:

“Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.”

[9]The fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. As French J observed in Wanneroo, at paragraph

[57]:

“It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg GeoA Bond and Co. Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

“Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.”

[94] While regard must be paid to the context and purpose of the provision or expression being construed, the Full Bench has applied the principles set out above such that while the industrial context and purpose of the Agreement can be considered, the consideration is against the requirement that the process of interpretative analysis must focus, first and foremost, upon the language of the Agreement itself. 121 The Full Bench expresses the interpretative task as being to identify the common intention of the parties as they have expressed it in the terms of their Agreement rather than having regard to the parties respective subjective intentions and expectations of the parties as demonstrated by their “statements and actions” in negotiating the Agreement122.

[95] The 2012 Agreement runs to 72 sections over 80 pages. It plainly has been the subject of extensive negotiation between the parties and is the product of much effort in careful and meticulous drafting. As with the agreement referred to in ATO v Davies, the 2012 Agreement “like its predecessor agreements, is very long and is written in a formal and precise style that suggests preparation by lawyers”. 123 Interpretation of the 2012 Agreement’s provisions requires frequent cross-referencing of other sections and definitions. 38 terms are the subject of definition within the Definitions section, and many of those are cross-referenced to other definitions or sections of the Agreement, or to external documents, such as the AFP Commissioner’s Orders, or the Australian Federal Police Act 1979 or the Australian Federal Police Regulations 1979.

[96] The 2012 Agreement contains numerous powers or functions requiring decisions to be taken by the AFP Commissioner, and section 7 explicitly gives the AFP Commissioner a discretion to delegate those powers or functions. The first two sub-sections of section 7 establish a level of formality about how powers or functions are to be delegated - the delegations are to be by written instrument and the person so delegated must comply with any conditions, directions or limitations imposed by the Commissioner. Notwithstanding the first two sub-sections, the third enables the AFP Commissioner, perhaps less formally, to authorise a person to act on his or her own behalf. However, given the formality of the first two sub-sections, this is objectively intended to be a less formal, perhaps quicker path, of having persons act in the name and with the authority of the AFP Commissioner. It appears intended for those occasions the AFP Commissioner requires a particular action to be taken, perhaps in a particular manner, and in all probability with a particular time-frame in mind. At the least, the language of the sub-section implies a specific authority from the AFP Commissioner in order to “act for and on his behalf” 124.

[97] The formality otherwise associated with the Delegations is not isolated. Many other provisions of the 2012 Agreement are also formally expressed, often in plain and unambiguous language whether of a person making a decision or a person obtaining or accessing a right or benefit.

[98] This context flows through to section 58, Redeployment and Redundancy. On the face of the section and consistent with the formality expressed elsewhere in the 2012 Agreement, a formal reading of the section would lead to the following construction of the processes associated with redeployment and redundancy;

• Redeployment, reduction in classification and redundancy processes are triggered once an employee is determined by the AFP Commissioner to be “excess”, which is defined.



• There may be a written notification to an employee of a proposal to declare them excess; however this is at the discretion of the AFP Commissioner.



• On first reading, the section about notification is written as if it is a discretionary requirement when it says the Commissioner may notify an employee in writing of a proposal to declare them excess to the AFP’s requirements. However a construction of the 2012 Agreement as a whole indicates the contrary view; that the written notification is not intended to be discretionary. This is for the reason that the provisions of section 68, (Consultation) would require such notification and consultation in any event. Section 68(4) requires consultation about the introduction of major change that is likely to have a significant effect on employees and section 68(12) defines major change likely to have a significant effect on employees to include the termination of the employment of employees. Section 68(5) requires that the relevant employees are notified of the decision to introduce the change; and section 68(8) requires discussions and information exchange with the relevant employees.



• A proposal to declare a person excess commences a notification period of 14 days. This period is referred to, very formally, as a “prescribed time period”. During the notification period, the employee may provide a response, raising any issues of concern about the proposed declaration, and the AFP Commissioner must consider the issues raised (which may delay a proposed declaration).



• At the end of the notification period, the AFP Commissioner may declare the position excess (which period may take three months).



• The section further provides that having been declared excess an employee must choose either of two options, which are set out as voluntary redundancy or the pursuit of redeployment or reduction options.



• The section establishes a scheme of voluntary redundancy payments which are separate to payments in lieu of notice. It provides for what occurs where employees opt for redeployment in the case of voluntary redundancy and outlines assistance to which the employee is entitled. The section also sets out a process, and payments for, involuntary redundancy. It provides a scheme for calculating the redundancy entitlements, as well as defining the salary at which redundancy payments are to be made.

[99] Such construction shows five distinct phases to a decision to declare a position excess;

• A consideration phase - in which certain facts are drawn to the attention of the AFP Commissioner, and a managerial opinion is formed that a position is excess;



• A notification phase - during which the opinion that a position is excess must be put to the affected employee as a proposal. The employee is entitled to receive information and consultation from the AFP and is entitled to put back such information as they wish;



• A declaration phase - in which the AFP declares the employee’s position to be excess;



• An election phase – during which the excess employee can choose, on the one hand, voluntary redundancy, or on the other hand, a three month retention period, during which redeployment or classification reduction options are considered;



• A redundancy or redeployment or reduction phase - in which the consequences of the employee’s election are implemented.

[100] The context of the 2012 Agreement is of a formally written and implemented agreement that carefully and meticulously regulates the employment relationship of persons bound to the agreement.

[146] Mr Brandi was familiar with the 2012 Agreement, and sufficiently familiar to be able to refer back to the AFP on several occasions, including on 6 June 2012 188 concerns he held about the application of the Agreement to his particular circumstances. What he put back to the AFP on 6 June is not an insubstantial or simple point; it is instead one that requires some level of sophisticated understanding of the totality of the Agreement, including that it reserved certain functions to be undertaken either by the AFP Commissioner or their delegate. Dr Kirkbride was, on Mr Slater’s evidence, classified at the EL-2 level189 and as is common in public sector organisations, that status and what it implied in the way of breadth or role and responsibility, is likely to have been known to Mr Brandi, an experienced and long serving AFP employee.

[147] The wider context of Mr Brandi’s familiarity with the 2012 Agreement; the workings of the AFP; and indeed of Dr Kirkbride management authority, leads to this communication being viewed as one that although sent to Dr Kirkbride, demanded attention by others. It would not be consistent with the wider context of these dealings to view Mr Brandi as believing Dr Kirkbride had sufficient authority, let alone corporate knowledge or purpose, to take to conclusion the options set out in the Contested Redundancy Offer.

[148] I find that Dr Kirkbride was not authorised by anyone on behalf of the AFP for reason of the doctrine of ostensible authority, or otherwise, to either;

• determine Mr Brandi was excess to requirements (cl. 58(1));



• notify Mr Brandi of a 14 day notification period (cl. 58 (3));



• declare him to be excess (cl. 58(4));



• receive from him a choice of either voluntary redundancy or pursuit of redeployment or reduction options (cl. 58(5)).

Was Dr Kirkbride’s conduct actually an offer?

[149] An objective reading of Dr Kirkbride’s Contested Redundancy Offer of 6 June 2012 shows it was neither consistent with section 58(1) or (3). It is possible that it is consistent with what might be expected to be communicated at the time of a notification to an employee pursuant to a conflation of sections 58(4) and (5), which provide the following;

“(4) At the end of the notification period, the Commissioner may declare an Employee to be excess and will advise the Employee in writing of the declaration within three months, and may do so at any time within this three month period.

(5) Once declared excess, the Employee must choose either of the following two options:

(a) accept an offer of voluntary redundancy (VR) and leave the AFP within 14 calendar days of accepting the offer, or at another date agreed on. If a VR is not accepted, it must not be offered again; or

(b) decline the VR offer and pursue redeployment or reduction options during a three month retention period.

(6) If an Employee does not respond, within the 14 day period, it will be assumed the Employee has declined the VR offer and enters into a retention period to pursue redeployment, at or below level within the AFP.”

[150] The correspondence refers to options and sets out the options referred to earlier. It invites Mr Brandi to advise Dr Kirkbride or Ms Gonzalez by 22 June whether he wishes to do certain things; namely to advise if he is willing to accept a voluntary redundancy package, or to advise if he wishes to transfer to Canberra. It also raises for consideration by Mr Brandi the prospect of relocation to Sydney.

[151] Mr Brandi submits that there has been an effective offer of a voluntary redundancy by the AFP followed by an effective acceptance of the offer by him on 22 June 2012. He argues that his case is analogous with the matter decided in State of New South Wales v NSW Nurses’ Association 190 (NSW Nurses Association) and that the offer of the voluntary redundancy and the acceptance of the offer by Mr Brandi constituted a binding contract what has been invalidly repudiated by the AFP191.

[152] In NSW Nurses Association, decided in the NSW Court of Appeal, nurses had been offered a redundancy package, and the judgement alluded to no question of the authority for the offers to be made 192. Detailed and unambiguous offers were put to nurses. The offers referred to the notice to which nurses were entitled, as well as the redundancy and other payments.193 The correspondence provided specific instructions for the acceptance of the offer.194 Subsequent to the offers being received by nurses, the offers were purported to be withdrawn. The Court of Appeal dismissed an appeal by the State of NSW against the decision of the NSW Industrial Relations Court which had held a contract came into existence between the State of NSW and the nurses concerned upon acceptance, and that by purporting to withdraw its offer of voluntary redundancy, the State had repudiated its obligations under the contract.

[153] In all, the circumstances of Mr Brandi are distinguishable from the offers of redundancy referred to in the NSW Nurses Association case.

[154] The evidence shows that on 6 June 2012, Dr Kirkbride wrote to Mr Brandi with the Contested Redundancy Offer 195. After confirming that Mr Brandi’s secondment would end in the coming month, he refers to “options below for your consideration”. The paragraph immediately after that reference is no more than an advice that a suitable non-forensic role in Melbourne has not been found. As such, that paragraph cannot be regarded as an option. However, the following two paragraphs (paragraphs 4 and 5 of the overall letter) can be construed as options;

• The first of these paragraphs advises “that the AFP is offering you a voluntary redundancy package” and invites Mr Brandi notify either Dr Kirkbride or Ms Gonzalez of his decision within 16 days of the date of the letter (by the close of business on 22 June 2012);



• The second of the paragraphs advises there are general chemistry and document examination positions in Canberra at the Band 6 level and also a position with a centre in Sydney at the Band 8 level. The paragraph uses the plural in respect of the Canberra reference and the singular in respect of the Sydney reference.



• The paragraph invites Mr Brandi to advise either Dr Kirkbride or Ms Gonzalez if he wishes to transfer to Canberra within 16 days of the date of the letter (by the close of business on 22 June 2012), and it advises him the 2012 Agreement’s relocation provisions will be applied.



• While the paragraph gives no indication to Mr Brandi what he should do if he wishes to transfer to Sydney and does not specify a time-limit for his consideration of such a transfer, a balanced reading of the paragraph would suggest that he had to follow the same course of action in relation to a transfer to Sydney as the letter specifies for a transfer to Canberra.



• Neither the paragraph or any other part of the letter indicate whether a transfer of Mr Brandi to Canberra or Sydney would occur “as of right” (that is, he only had to say that is what he wanted and he would be appointed), or whether there would be conditions or application processes attached to any request.

[155] Mr Brandi’s actions after receiving this correspondence also need be taken into account.

[156] On the same day he received the Contested Redundancy Offer, he wrote back to Dr Kirkbride and raised two issues with him; one relating to the overpayment dispute, and the other relating to his Comcare compensation claim. He invited Dr Kirkbride to “resolve the outstanding matters” and provide other information. 196

[157] On 22 June 2012, he replied with the Contested Redundancy Acceptance email. Although that correspondence indicated he was willing to accept a voluntary redundancy package, it identified two provisions, being a need to agree a departure date and to resolve the overpayment dispute. 197 The way these are phrased makes it unlikely Mr Brandi was saying he saw the Contested Redundancy Offer as a binding declaration of excess and an offer under section 58 of the 2012 Agreement, and that he would unconditionally accept the offer within the terms of section 58(5).

[158] To be unconditional, Mr Brandi’s acceptance would have had to mean he was prepared to risk being told he had to “leave the AFP within 14 calendar days” which is the eventuality contemplated within section 58 (5) in the event the AFP chose not to agree another date, and without agreement being reached over disposition of the AFP over-payment claim against Mr Brandi. There is nothing in the Contested Redundancy Acceptance email that would leave the view that Mr Brandi would have been prepared to accept that eventuality.

[159] These options are not likely to be considered, on a fair reading, to be offers capable of acceptance, since they are imprecise and fail to contain important definite terms.

[160] If Mr Brandi had actually accepted being made redundant voluntarily, as he purported in his Contested Redundancy Acceptance, he would be doing so without knowledge of when he would be required to leave, or the amount he would be paid on termination. If he had elected to take one of the alternative options, he would not know the position he was accepting.

[161] Before an offer for employment can be accepted it must be couched in sufficiently definite terms for it to be capable of acceptance. 198 The dealings between the parties need to show a concluded bargain capable of acceptance.199 While this matter involves negotiations for either the variation of an existing contract of employment, or an agreement to terminate a contract of employment by consent, similar issues arise. For example, it is considered that a variation must satisfy all of the requirements of a valid contract, with consideration requiring particular attention.200

[162] In contrast to the information set out to Mr Brandi in the Contested Redundancy Offer, the AFP argues that it would ordinarily provide comprehensive terms to a person proposed to be declared excess or a person declared excess. The template correspondence provided by the AFP on these matters 201 lends support to the submission.

[163] While it is not said such correspondence was ever provided to Mr Brandi, the templates make a declaration of excess; specify the choices available and inform the reader of each payment that will be available to them, as well as providing an offer for the reimbursement of certain outplacement costs. This is ordinarily the information that would be expected to be provided to an employee whose employment was sought to be terminated, initially by consent and potentially involuntarily, and is not inconsistent with the level of detail provided to the employees that were the subject of the NSW Nurses Association case 202.

CONCLUSION

[164] As a result of the foregoing analysis, I address each of the principal propositions raised in the submissions of Mr Brandi and the AFP in the following way;

1. Whether Mr Brandi’s position was declared excess and there was an offer of voluntary redundancy

• I have found that Mr Brandi was not declared excess and that there was not an offer of voluntary redundancy.

2. Whether Officers of the AFP held themselves out, through their conduct, as being able to offer voluntary redundancy to Mr Brandi (for reason of ostensible authority)

• I have found that Dr Kirkbride did not have the AFP’s authority to make any determination that Mr Brandi was excess to requirements (section 58(1)); or to notify him of a proposal to declare him excess (section 58(3)); or to subsequently declare him to be excess (section 58(4)); or to make an offer of redundancy (section 58(4)).

3. Whether there was an acceptance of the offer of voluntary redundancy

• I have found there was no unqualified or unconditional acceptance of an offer of voluntary redundancy, even if it had been made.

4. Whether the construction that should be given to the 2012 Agreement voluntary redundancy procedures allows the view those procedures have been activated and followed

• The construction given to the 2012 Agreement does not support the view that processes other than those set out in section 58 may be followed in order to declare a person to be excess and subsequently be made redundant, whether voluntarily or involuntarily.

5. Whether Mr Brandi complied with the 2012 Agreement’s requirements for voluntary redundancy

• In responding as he did in his Contested Redundancy Acceptance on 22 June 2012, Mr Brandi conditioned his purported acceptance. While his response does not decline the purported voluntary redundancy offer with the intention of the subsequent pursuit of redeployment or reduction, neither does it unconditionally accept a voluntary redundancy offer since he did not agree to leave the AFP within 14 calendar days of acceptance of the offer.

6. Whether there is a binding contract for voluntary redundancy, invalidly repudiated by the AFP

• I have found that the circumstance of the matter are not consistent with a binding contract for voluntary redundancy having been brought into effect, let alone one that was later repudiated.

[165] Having made these findings, and with reference to the question for determination I have framed, I must answer the question as follows;

Q: Is the Applicant entitled to have his acceptance of an offer of voluntary redundancy upheld?

A: No.

[166] For the above reasons, I now dismiss the application and order accordingly.

COMMISSIONER

Appearances:

Mr E White, of Counsel, and Mr A Bucknell, Solicitor, for the Applicant

Mr N Harrington, of Counsel, for the Respondent

Hearing details:

2013.

Melbourne:

December, 10 and 20

2014.

Melbourne:

January, 22

ATTACHMENT: RELEVANT EXTRACTS FROM THE AUSTRALIAN FEDERAL POLICE ENTERPRISE AGREEMENT 2012 – 16 (AE891991) (2012 Agreement)

5 APPLICATION OF THE AGREEMENT

(1) This Agreement applies to all Employees of the AFP with the exception of Employees who:

(a) have been declared Senior Executive AFP Employees in accordance with section 25 of the Australian Federal Police Act 1979;

(b) are covered by the Australian Federal Police Executive Level Enterprise Agreement 2011;

(c) are deployed outside Australia under section 40H(1) of the Australian Federal Police Act 1979 and a determination under section 40 H(2) of that Act is in place; or

(d) are Special Members of the AFP appointed under section 40E of the Australian Federal Police Act 1979, with the exception of special members who were Employees of the AFP immediately before being declared a special member.

(2) For the purposes of sub-section 5(1)(c), an Employee will not be considered to be deployed outside Australia if they are deployed to any External Territory.

6 COMPREHENSIVE AGREEMENT

(1) This Agreement is a comprehensive enterprise agreement and provides entitlements consistent with the National Employment Standards as detailed in the Fair Work Act 2009.

(2) This Agreement excludes all applicable Enterprise and Modern Awards including the Australian Federal Police Award 2002 (as varied from time to time).

(3) The terms and conditions of this Agreement apply to all Employees in their entirety unless specifically identified, excluded or substituted.

(4) Employment in the AFP is subject to the laws of the Commonwealth including subordinate legislation (as varied from time to time) and the common law, including, but not limited to:

(a) Administrative Decisions (Judicial Review) Act 1977;

(b) Australian Federal Police Act 1979;

(c) Defence Reserve Service (Protection) Act 2001;

(d) Australian Civilian Corps Act 2011 (Cth);

(e) Fair Work Act 2009;

(f) Long Service Leave (Commonwealth Employees) Act 1976;

(g) Maternity Leave (Commonwealth Employees) Act 1973;

(h) Work Health and Safety Act 2011;

(i) Safety. Rehabilitation and Compensation Act 1988; and

(j) Applicable Superannuation legislation.

7 DELEGATION

(1) The Commissioner may, by written instrument, delegate any of the Commissioner’s powers or functions under this Agreement, other than this section and section 41 or subsections 12(4), 12(6), 12(7) or 42(7).

(2) A person exercising delegated powers or functions under this Agreement must comply with any conditions, directions or limitation s imposed by the Commissioner.

(3) This section does not limit the power of the Commissioner to authorise a person to act for and on his or her behalf.

58 REDEPLOYMENT AND REDUNDANCY

(1) Where the Commissioner determines that one or more Employees are excess to requirements, those Employees will be subject to a redeployment, reduction in classification or redundancy process.

(2) An Employee will be considered excess if:

(a) they have been included in a class of AFP Employees and there are more Employees in the class than is necessary for the efficient and economical working of the AFP;

(b) the services of the Employee cannot be effectively used because of technological or other changes in the methods, or changes in the nature, extent or organisation of the functions of the AFP; or

(c) the duties usually performed by the Employee are to be performed by the Employee at a different locality and the Employee is not able to perform duties at that locality.

(3) The Commissioner may notify an Employee in writing of the proposal to declare them excess to the AFP’s requirements. The Employee has 14 calendar days to raise any issues of concern relating to the proposed declaration. Where an Employee responds within the prescribed time period, the Commissioner must consider the issues raised. Such consideration may serve to delay the proposed declaration.

(4) At the end of the notification period, the Commissioner may declare an Employee to be excess and will advise the Employee in writing of the declaration within three months, and may do so at any time within this three month period.

(5) Once declared excess, the Employee must choose either of the following two options:

(a) accept an offer of voluntary redundancy (VR) and leave the AFP within 14 calendar days of accepting the offer, or at another date agreed on. If a VR is not accepted, it must not be offered again; or

(b) decline the VR offer and pursue redeployment or reduction options during a three month retention period.

(6) If an Employee does not respond, within the 14 day period, it will be assumed the Employee has declined the VR offer and enters into a retention period to pursue redeployment, at or below level within the AFP.

Voluntary redundancy

(7) For voluntary redundancy under the terms of this Agreement, the following payments are to apply for eligible service:

(a) Twelve weeks pay for up to and including three years service;

(b) Eighteen weeks pay for service in excess of three years and up to six years;

(c) Thirty six weeks pay for service in excess of six years and up to nine years;

(d) Fifty two weeks pay for service in excess of nine years.

(8) The above payments do not include payments in lieu of notice.

(9) The above payments do not include payments in the form of final monies for items

including unused accrued recreation leave and unused accrued long service leave.

(10) Redundancy payments will be limited to a maximum payment of 52 weeks.

Retention period

(11) Employees who opt for redeployment during the three month retention period, are responsible for their career management and must actively participate in the redeployment process.

(12) For redeployment under this sub-section, an Employee will be moved to a suitable role or position at or below their substantive classification level (with- or without the Employee’s consent).

(13) For clarity, redeployment under this sub-section is not a management initiated temporary transfer under section 16.

(14) Where an Employee is redeployed to a role or position below their substantive classification level in accordance with this sub-section, they will maintain their previous Base Salary for a period of 12 months from the date they were declared excess. After this 12 month period, the Employee’s Base Salary will revert to the top increment point of that lower band level.

(15) An Employee will be entitled to eight hours per fortnight with full pay during the retention period to attend to necessary employment interviews. Where possible, the Employee must give his or her supervisor a minimum of 24 hours prior notice of an upcoming employment interview.

Involuntary redundancy

(16) Excess Employees, not permanently redeployed by the end of the retention period, will be made involuntarily redundant within 14 days of the completion of the retention period. Their employment will be terminated by the Commissioner under section 28 of the AFP Act, on the grounds that the Employee is excess to the requirements of the AFP. (17) For involuntary redundancy under the terms of this Agreement, the following payments are to apply for eligible service:

(a) Twelve weeks pay for up to and including three years service;

(b) Eighteen weeks pay for service in excess of three years and up to six years;

(c) Thirty six weeks pay for service in excess of six years and up to nine years;

(d) Fifty two weeks pay for service in excess of nine years.

(18) The above payments do not include payments in lieu of notice.

(19) The above payments do not include payments in the form of final monies for items including unused accrued recreation leave and unused accrued long service leave.

(20) Redundancy payments will be limited to a maximum payment of S2 weeks.

Eligible Service for Redundancy Pay Purposes

(21) For the purposes of calculating a redundancy entitlement, the following will apply:

(a) eligible service will be calculated up to the date of redundancy;

(b) for the purposes of calculating “eligible service”, prior service or employment with any authority or body constituted by or under a law of the Commonwealth, Australian Public Service or the Australian Defence Force will be aggregated with service or employment with the Australian Federal Police, if there was no break, exceeding seven calendar days, or no break other than one attributable to leave of absence (whether with pay or without pay), from the prior service or employment and if the member’s prior service or employment was not terminated by reason of:

I) retrenchment;

II) retirement on the grounds of invalidity, inefficiency or loss of a necessary qualification;

III) forfeiture of office;

IV) dismissal on disciplinary grounds; or

V) termination of a probationary appointment for reasons of unsatisfactory service or employment.

(22) Absences during a period of eligible service or employment which do not count as service for employment for long service leave purposes do not count for the purposes of calculating the benefits specified above.

Rate of Payment

(23) For the purposes of calculating any payment under the above sub-section, “salary” includes:

(a) full-time Employee:

I) the Employee’s full-time base salary paid at the ordinary time rate;

(b) part-time Employee:

I) base salary at the ordinary time rate paid on a pro rata basis where the Employee has worked part-time hours during the period of service and the Employee has less than 24 years full-time service;

(c) for Employees in receipt of Higher Duties Allowance;

I) the base salary rate on which salary and higher duties payments are made where the Employee has been acting in a higher position for a continuous period of at least 12 months immediately preceding the date on which the Employee is given notice of termination.

70 DISPUTE RESOLUTION

(1) For the purpose of preventing and settling disputes arising from this Agreement, the dispute resolution procedures specified below will be followed.

(2) Wherever possible, disputes will be resolved between the relevant Supervisor and the Employee.

(3) For the purpose of this section, a party to a dispute means the AFP or an individual Employee or a group of Employees bound by this Agreement. A party to a dispute may appoint another person, organisation or association to accompany or represent them in relation to a dispute.

(4) Nothing contained in this section will prevent the AFP or Employees (or, where they choose, their representative/s) from entering into negotiations at any level if it seems likely to assist in the resolution of a dispute. Where the AFP or an Employee (or where they choose, their representatives) initiate a negotiation process, then they must advise the other parties involved in the dispute.

Step One

(5) If a workplace dispute occurs the Employee or Employees concerned (and, where they choose, their representatives) should raise the matter with the appropriate Supervisor. The Supervisor will have the responsibility and the authority to investigate and resolve the matter by reference to this Agreement and any other relevant information and will normally respond to the Employee or Employees within 14 days of receiving notification of the dispute.

Step Two

(6) If the dispute is not resolved at the Supervisor level it may be referred to an Executive Level or a Senior Executive AFP Employee who has functional-or office responsibility for the Employee or Employees. An Executive Level or Senior Executive AFP Employee will then have the responsibility and the authority to investigate and resolve the matter. The relevant Executive Level or Senior Executive AFP Employee will normally respond to the Employee or Employees within 14 days of receiving notice of the dispute.

Step Three

(7) If the dispute is not able to be resolved within the business area by step one or step two it will be referred to Employee Relations and may be referred to the National Manager Human Resources for resolution.

Step Four

(8) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to Fair Work Australia.

(9) Fair Work Australia may deal with the dispute in two stages:

(a) Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) if Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then:

I) arbitrate the dispute; and

II) make a determination that is binding on the parties.

Note If Fair Work Australia arbitrates the dispute, it may also use the powers that are available to it under the Fair Work Act.

(10) A decision that Fair Work Australia makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Fair Work Act. Therefore, an appeal may be made against the decision.

(a) While the parties are trying to resolve the dispute using the procedures in this term:

I) an Employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and

II) an Employee must comply with a direction given by the AFP to perform other available work at the same workplace, or at another workplace, unless:

a. the work is not safe; or

b. applicable occupational health and safety legislation would not permit the work to be performed; or

c. the work is not appropriate for the Employee to perform; or

d. there are other reasonable grounds for the Employee to refuse to comply with the direction.

(11) The parties to the dispute agree to be bound by a decision made by Fair Work Australia in accordance with this section.

 1   [2012] FWAA 1732, at [5].

 2 2012 Agreement, section 70 (1).

 3 2012 Agreement, section 70(8)(9).

 4 See FW Act, s.739(5).

 5   Application, Form F10, items 4 and 7.

 6   Exhibit A1, para 16.

 7   Respondent’s Outline of Submissions dated 2 November 2013, para 15.

 8   Ibid., para 9.

 9   Exhibit A2, attachment 1.35 ( paras 2 - 3).

 10   Exhibit A3, para 14.

 11   Ibid.

 12   Ibid, para 18.

 13   Agreed Statement of Facts dated 6 December 2013, para 4.

 14   Ibid., para 5.

 15   Exhibit A3, para 22.

 16   Op Cit, Agreed Statement of Facts, para 7.

 17   Ibid., para 13.

 18   Ibid., para 18.

 19   Ibid., para 3.

 20   2012 Agreement, section 6(2).

 21   Exhibit A3, para 17.

 22   Ibid., para 18 – 20.

 23   Op Cit, Agreed Statement of Facts, para 4; Exhibit A3, para 18.

 24   Exhibit A4, para 8.

 25   Exhibit A3, para 11.

 26   Exhibit R7, para 12.

 27   Ibid, para 12.

 28   Transcript, PN 655 – 658.

 29   Transcript, PN 663 – 680.

 30   Exhibit R8, para 15.

 31   Exhibit R7, para 14.

 32   Transcript, PN 977.

 33   Exhibit R8, paras 16 – 17.

 34   Ibid., para 20 – 21.

 35   Exhibit A2, attachment 1.7

 36   Exhibit A4, para 12.

 37   Exhibit R7, para 16; Exhibit R8, Paras 23 – 24.

 38   Exhibit R6, email from Dr Kirkbride to Ms Gonzales, 4 June 2012.

 39   Ibid.

 40   Transcript, PN 517 – 518.

 41   Exhibit R8, para 20

 42   Exhibit R6, attachment to email 5 June 2012.

 43   Exhibit A2, Attachments 1.8 and 1.9

 44   Exhibit R7, para 16.

 45   Exhibit R8, attachment HG – 3.

 46   Ibid., para 24 – 25; Ibid., attachment HG – 4.

 47   Exhibit A4, para 13.

 48   Transcript, PN 703.

 49   Exhibit R7, para 17 - 19.

 50   Transcript, PN 1036.

 51   Exhibit A4, para 14.

 52   Transcript, PN 497.

 53   Transcript, PN 471 – 481, 498.

 54   Transcript, PN 502 – 513.

 55   Transcript, PN 512 - 516.

 56   Exhibit A2, Attachment 1.9.

 57   Exhibit R8, Attachment HG-5.

 58   Exhibit A2, Attachment 1.12.

 59   Exhibit R7, para 20.

 60   Exhibit R8, para 31.

 61   Exhibit A2, Attachment 1.13.

 62   Exhibit R1.

 63   Exhibit A2, Attachment 1.14.

 64   Ibid.

 65   Exhibit A2, Attachment 1.15.

 66   Exhibit A2, Attachment 1.18, 7 July 2012.

 67   Exhibit R7, para 22.

 68   The Acting National Manager Forensics and Data Centres (see Exhibit R8, para 39).

 69   Ibid, para 40.

 70   Exhibit A2, Attachments 1.23 and 1.24.

 71   Exhibit A2, Attachment 1.27; Exhibit R8, para 47.

 72   2012 Agreement, Attachment A.

 73   Exhibit A2, Attachment 1.29.

 74   Exhibit R8, para 49 – 50.

 75   Exhibit R7, para 26, attachment JS 2.

 76   Ibid., para 27.

 77   Ibid., para 3.

 78   Exhibit A3, para 38.

 79   Exhibit R7, Attachment JS – 4.

 80   Exhibit A3, para 40.

 81   Exhibit R7, paras 29 – 30.

 82   Exhibit A3, para 41; Exhibit R7, para 31.

 83   Exhibit R7, para 31.

 84   Exhibit A1, paras 1 – 2.

 85   Exhibit, para 17; Transcript PN 1177.

 86   Exhibit A5, para 18.

 87   Transcript, PN1215 - 1217; PN 1222 - 1227.

 88   Transcript, PN 1151 - PN1156.

 89   Transcript, PN 655 – 658 and 1144 – 1145; Exhibit R7, para 12.

 90   Transcript, PN 1152 – 1153.

 91   Transcript, PN 1157.

 92   Exhibit A1, paras 10 – 13.

 93   Ibid., paras 12, 14.

 94   Ibid,, para 15.

 95   Exhibit A1, para 15; State of New South Wales v NSW Nurses Association [2012] NSWCA 179.

 96   Op Cit, Respondent’s Outline of Submissions, para 21(b)(i).

 97   Ibid., para 21(b)(ii)(A).

 98   Transcript, PN 497.

 99   Exhibit R9, para 23.

 100   Exhibit R9, paras 57 – 58.

 101   Op Cit, Respondent’s Outline of Submissions., para 21.

 102   Ibid, para 21(b)(ii)(B).

 103   Exhibit R9, paras 45 – 46.

 104   Ibid., paras 42 – 44.

 105   Op Cit, Respondent’s Outline of Submissions, para 21 (a).

 106   Ibid., para 21 (b).

 107 [2012] NSWCA 179.

 108 FW Act, s.70 (1); Op Cit, Respondent’s Outline of Submissions, paras 17 – 18.

 109   Exhibit R9, para 32.

 110   Ibid., para 72.

 111   Exhibit A5, para 10 (d).

 112   Exhibit A5, paras 11, 16 and 17.

 113   Exhibit R9, para 43 – 44.

 114   Ibid, para 45.

 115   [2010] FWAFB 2549.

 116   Ibid., at [6].

 117   Ibid., at [63] - [65].

 118   Kucks v CSR Limited, (1996) 66 IR 182, at 184.

 119   Ibid..

 120   [2012] FWAFB 3994.

 121   Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths Limited T/A Woolworths, [2013] FWCFB 2814, at [12]; with reference to Amcor Limited v CFMEU.

 122   Ibid, at [13].

 123   ATO v Davies[2010] FWAFB 2549, at [64].

 124   2012 Agreement, section 7(3)

 125   Exhibit R2, para 20-21; Exhibits R3 and R4.

 126   Ibid, para 16 - 17.

 127   See Australian Federal Police Act 1979, s.69C.

 128   Pacific Carriers Ltd v BNP Paribus [2004] HCA 35; (2004) 218 CLR 451, at [36].

 129   Workplace Relations Act 1996, s826(2).

 130   Kaizen Hospitals Appeal Case [2013] FWCFB 1846, at [46] (Judicial review pending ), on appeal from Australian Nursing Federation [2012] FWA 9905, see [24] - [27]; with reference to Australian Workers Union v Leighton Contractors Pty Ltd [2013] FCAFC 4.

 131   AWU v Leighton Contractors, at [85], per Katzmann J.

 132   Turner C., Australian Commercial Law, 27th Edition, Sydney, Lawbook Co., 2009, pp 176-177; Halsbury’s Laws of Australia, at [120-3065]; see also Pacific Carriers Ltd v BNP Paribus, [2004] HCA 35; (2004) 218 CLR 451, at [36].

 133 [2004] HCA 35; (2004) 218 CLR 451.

 134   Ibid, at [35] – [39], per Gleeson CJ, Gummow, Hayne, Callinan And Heydon JJ.

 135   Northside Developments Pty Ltd v Registrar-General [1990] HCA 32; (1990) 170 CLR 146 (28 June 1990).

 136 (1975) 133 CLR 72.

 137 [1990] HCA 32; (1990) 170 CLR 146, per Dawson J, at [20].

 138   Pacific Carriers Ltd v BNP Paribus, at [36].

 139   Exhibit R7, para 19; Transcript, PN 703.

 140   Transcript PN 1056

 141   Exhibit R3, para 26; Exhibit A2, Attachment 1.13.

 142   Exhibit A2, Attachment 1.31.

 143   Exhibit A3, para 40.

 144   Exhibit R5.

 145   Exhibit R2, Attachment LC-2.

 146   AFP closing submissions, paras 42 – 44.

 147   Exhibit A321.

 148   Transcript, PN 111

 149   Exhibit A21.34.

 150   Transcript, PN 275, 283 - 284.

 151   Exhibit R8, HG5; Transcript, PN 283.

 152   Transcript, PN 387; PN 431.

 153   Transcript, PN 480 - 485; .

 154   Exhibit R6, attachment to email, Gonzalez to Kirkbride, 5 June 2012.

 155   Exhibit R6, attachment to email Kirkbride to Gonzalez, 4 June 2012.

 156   Transcript, PN 498 -499.

 157   Transcript, PN 499-501.

 158   Transcript, PN 519.

 159   Transcript, PN 1056.

 160   Exhibit A4, para 11; Transcript, PN 516 518.

 161   Exhibit R8, para 11.

 162   Ibid., para 16.

 163   Ibid., paras 17 – 21.

 164   Ibid., para 20

 165   For example, Transcript PN 498 - 516.

 166   Exhibit A3, para 26; Exhibit A2, Attachment 1.13.

 167   Exhibit A2, Attachment 1.13.

 168   Exhibit R7, para 19.

 169   Transcript, PN 703.

 170   Transcript, PN 714.

 171   Transcript, PN 775 -776.

 172   Transcript, PN 770 - 771.

 173   Transcript, PN 781.

 174   Exhibit A2, Attachment 1.6

 175   Exhibit R8, Attachment HG-5 and Exhibit A2, Attachment 1.12 (the Contest Redundancy Acceptance)

 176   Exhibit A2, Attachment 1.29 and 1.32

 177   Exhibit A2

 178   Transcript, PN 498

 179   Transcript, PN 431

 180   Exhibit A2, Attachment 1.12.

 181   Ibid. 1.14.

 182   Ibid, Attachment 1.24.

 183   Exhibit R8, para 24.

 184   Exhibit R8, Attachment HG-7

 185   Ibid

 186   Exhibit A2, Attachment 1.31; the letter of offer referred to as “attached” was not attached to the document tabled in the Commission.

 187   Exhibit A2, Attachment 1.13.

 188   Exhibit R8, Attachment HG-5

 189   Transcript, PN-826.

 190 [2012] NSWCA 179 (20 June 2012).

 191   Exhibit A1, paras 15-16.

 192 [2012] NSWCA 179, at [8].

 193   Ibid, at [2].

 194   Ibid.

 195  Exhibit A2, Attachment 1.8.

 196   Exhibit R8, attachment HG-5.

 197   Exhibit A3, para 24, Exhibit A2, attachment 1.13.

 198   Sappideen C, O’Grady P, Riley J, Warburton G, Smith B, Macken’s Law of Employment, 7th Edition, Lawbook Co., 2011, para 4.90.

 199   Neal I, Chin D, The Modern Contract of Employment, Lawbook Co., 2012, p 60.

 200   Ibid., p 77

 201   See Exhibits R3 (Notification of proposal to declare excess, 9 December 2013) and R4 (Declaration of excess employee, 9 December 2013).

 202 [2012] NSWCA 179, at [2].

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