James Matete v InfraBuild Constructions Solutions Pty Ltd

[2020] FWC 6252

[2020] FWC 6252

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Matete
v
InfraBuild Constructions Solutions Pty Ltd
(U2020/8885)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 20 NOVEMBER 2020

Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – application dismissed.

[1] Mr Matete was employed as a Project Coordinator by the respondent, InfraBuild Construction Solutions Pty Ltd (IBCS), from 3 July 2019 until 26 June 2020. IBCS contends that Mr Matete’s dismissal was a genuine redundancy within the meaning of s 389 of the Fair Work Act2009 (Cth) (Act). Mr Matete denies that assertion and contends that his dismissal was harsh, unjust and unreasonable.

Background

[2] Mr Matete filed his unfair dismissal application in the Fair Work Commission (Commission) against IBCS on about 28 June 2020 (Application).

[3] I held a hearing by videoconference on 19 October 2020. Mr Matete gave evidence at the hearing. IBCS adduced evidence from Ms Heidi Wong, HR Business Partner, and Mr Grant Rennett, Regional Manager, IBCS. Mr Matete filed a range of documents and statements in support of his Application. IBCS filed witness statements made by Ms Wong and Mr Rennett. Following the hearing, both parties availed themselves of the opportunity provided to file and serve further statements, documents and submissions.

Initial matters to be considered

[4] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the Application.

[5] There is no dispute between the parties and I am satisfied on the evidence that:

(a) the Application was made within the period required in s 394(2) of the Act;

(b) Mr Matete is a person protected from unfair dismissal; and

(c) IBCS is not a small business within the meaning of the Act and therefore the Small Business Fair Dismissal Code does not apply.

[6] In relation to the fourth initial matter which I am required to consider, there is a dispute between the parties regarding whether Mr Matete’s dismissal was a genuine redundancy. Accordingly, I must decide that question before I consider the merits of the Application.

Genuine Redundancy

[7] Section 389 of the Act defines genuine redundancy as follows:

“389 Meaning of genuine redundancy

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

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

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

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

(a) the employer’s enterprise; or

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

[8] “Associated entity” has the meaning given by s 50AAA of the Corporations Act 2001 (Cth).

The employer no longer required the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise (s 389(1)(a))

[9] It is necessary to determine whether IBCS no longer required Mr Matete’s job to be performed by anyone because of changes in the operational requirements of IBCS’s enterprise. 1

[10] A job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee”. 2 Where there has been a reorganisation or redistribution of duties, the question is whether the employee has “any duties left to discharge”.3 If there is no longer any function or duty to be performed by that person, their job becomes redundant.4 For example, an employer may redistribute all the tasks done by a particular person between several other employees, resulting in the person’s job no longer existing.

[11] An employee’s job may still be genuinely made redundant when there are aspects of the employee’s duties still being performed by other employees. 5 The test is whether the job previously performed by the employee has survived the restructure or downsizing, not whether the duties have survived in some form.6

[12] The reference to “changes in the operational requirements of the employer’s enterprise” in s 389(1)(a) of the Act includes circumstances where an employer restructures its business to improve efficiency, productivity, sales, revenue or some other aspect of performance. The operational circumstances of a business which may give rise to a redundancy will reside in the direct knowledge of the employer. The evidentiary onus is on the employer to provide direct evidence about the nature of the employee’s job and why it is no longer required to be performed as a result of changes in the operational requirements of the employer’s enterprise.

[13] If a dismissal is found to be a genuine redundancy within the meaning of the Act, issues such as unfair selection procedures for redundancy are not relevant, because they go to the merits of the claim that the applicant was dismissed harshly, unjustly or unreasonably. 7

Background and submissions – job no longer required

[14] IBCS is a member of the Gupta Family Group Alliance (GFG Alliance) and the InfraBuild group of companies (Infrabuild Group). In Australia, the Infrabuild Group comprises a vertically-integrated steel supply chain, with operations in steel manufacturing, processing, distribution and recycling. IBCS is a reinforcing supplier of prefabricated reinforcing solutions, products and accessories. There is another GFG Alliance company in Australia called SSX Services Pty Ltd trading as ARC/The Australian Reinforcing Company (ARC), which is also a reinforcing solutions supplier. ARC was formerly a competitor of IBCS, but is now owned by the Infrabuild Group. Up until June 2020 IBCS had 14 sites in NSW including three large distribution sites and 11 branches. 8 In or around June 2020 all but two of the branches were transferred to ARC. IBCS retained the three large sites and two branches (Newcastle and Canberra).9 Mr Matete worked in the Newcastle branch of IBCS.10 He was employed as a ‘Project Coordinator’ which meant that in substance he was working as the ‘scheduler’ for that branch.11 IBCS also employed schedulers at its Villawood site, who would assist branch sites, such as Newcastle and Canberra, by undertaking overflow scheduling work.12

[15] IBCS submitted that Mr Matete’s job was no longer required to be performed by anyone because of the changes in its operational requirements as a result of IBCS’s decision to centralise its scheduling functions to Villawood (Centralisation Decision) as a part of a broader plan to reorganise Infrabuild Group’s operations, reduce its cost base and bolster its financial performance. IBSC says that these changes were prompted by challenging market conditions and a significant drop in profitability across the Infrabuild Group and the GFG Alliance globally (known as the GTM Strategy). 13 Further, IBCS submitted that to the extent that Mr Matete is contesting the basis on which he was selected for redundancy, the selection criteria or process applied by IBCS is not relevant to determining whether IBCS has met the requirements in s 389 of the FW Act.

[16] Mr Matete contended in his supporting statements and submissions that his “claim of unfair dismissal is based on the lead up of previous events where I believe InfraBuild was given an opportunity to make me redundant because of the current climate” and “as soon as the opportunity became available, I was the first to go, which I believe was due to my complaint.” 14 Further, he made several claims regarding his treatment in the workplace leading up to the redundancy including that he was not properly trained as a scheduler despite his repeated requests, that his workload was reduced because it was reallocated to contractors, and that he suffered “events of harassment and bullying, vilification and deformation (sic) in the workplace” which led to him suffering extreme depression and PTSD.15 He also said that “I understand that the company is letting people go because of a downturn in sales, however I was singled out, and InfraBuild used the Pandemic as an opportunity to make me redundant.”16

Consideration – job no longer required

[17] Mr Rennett gave evidence, which I accept, the he was involved in a process from about October 2019 with the aim of more efficient delivery of IBCS’s services which included the possibility of reducing IBCS’s headcount. 17 I also accept his evidence that IBCS, like the GFG Alliance more broadly, was facing challenging economic conditions during the year leading up to April 2020 which, compounded by the COVID-19 pandemic, resulted in a drop in profitability of around one-third.18 Further, I accept Mr Rennet’s evidence that during April 2020 IBSC in NSW was operating well below capacity with around 300 tonnes of steel being processed per day, compared with its capacity of 700 tonnes per day.19 I also accept his evidence that the Newcastle and Canberra branches had experienced a significant reduction in profitability at that time;20 and, I accept, that in June 2020 the GFG Alliance asked each business in the group (including IBCS) to aim for 20 – 30% gains in efficiency including the possibility of reducing headcount.21 Further, I accept Mr Rennett’s evidence that IBCS had a team of schedulers located in Villawood who performed overflow scheduling functions for regional branches (such as Canberra and Newcastle) and that team was operating below capacity and could undertake work from Canberra and Newcastle.22

[18] Ms Wong and Mr Rennett gave evidence, which I accept, that because of the circumstances described in the paragraph above and with the aim of reducing duplication of work and to increase efficiency, the duties and responsibilities of the two regional schedulers working out of Newcastle and Canberra respectively could be undertaken by the schedulers based in Villawood, with the result that the Newcastle and Canberra scheduler positions would no longer be required by IBCS. 23 Further, I accept Mr Rennett’s evidence that in late-May 2020 the Centralisation Decision was put to the business as part of the business’s broader plans in relation to IBCS and was approved in around mid-June 2020 by senior Infrabuild Australia leadership.24 I also accept Ms Wong’s evidence that at around the time Mr Matete was made redundant 14 redundancies were implemented across IBCS (including the scheduler based in Canberra), ARC made 26 people redundant, and 134 other positions were made redundant across the GFG Alliance companies in Australia.25

[19] Although I accept Mr Matete’s unchallenged evidence that he made complaints during his employment about the conduct of employees of IBCS which caused him significant distress and IBCS disciplined the relevant employees, I do not accept Mr Matete’s contention that he was opportunistically selected for redundancy and “singled out” because of those complaints. First, Ms Wong gave evidence, which I accept, that IBCS had investigated Mr Matete’s complaints and disciplined the relevant employees and considered the matter resolved. 26 Second, the Centralisation Decision included making the equivalent position at IBCS’s Canberra site redundant and was part of a broader review and reorganisation of the Infrabuild Group and GFG Alliance which lead to redundancies thought the businesses.27 Finally, aside from Mr Matete’s assertion and the temporal relationship between his complaints and the redundancy, there is no other evidence to suggest IBCS’s decision to make Mr Matete’s position redundant was in any way related to his complaints, I accept Ms Wong’s and Mr Rennett’s convincing denials of that assertion.28 I accept Mr Matete’s unchallenged evidence that his workload was reduced leading up to the redundancy and that he did not receive the training he expected to receive to be able to properly fulfil his role. However, those are not matters which are relevant to my decision about whether Mr Matete’s dismissal was a genuine redundancy within the meaning of s 389 of the Act. Similarly and in any event, the basis on which Mr Matete was selected for redundancy is not relevant to the question of whether his dismissal was a genuine redundancy.

Conclusion – job no longer required

[20] Based on the evidence and for the reasons discussed at paragraphs [14] to [19] above, I am satisfied, on the balance of probabilities, that IBCS no longer required Mr Matete’s job to be performed by anyone because of changes in the operational requirements of the IBCS’s enterprise, more specifically because of the Centralisation Decision.

Compliance with any consultation obligation in a modern award or enterprise agreement that applied to the employment (s 389(1)(b))

[21] For there to be a genuine redundancy within the meaning of s 389 of the Act, IBCS must have complied with any obligation in a modern award or enterprise agreement to consult about the redundancy. There was no contest and I am satisfied on the evidence that the Manufacturing and Associated Industries and Occupations Award 2020 (Award)applied to Mr Matete’s employment with IBCS. Hence, for there to be a genuine redundancy in accordance with s 389(2) of the Act, IBCS must have complied with any obligation in the Award to consult about the redundancy.

[22] The following clauses of the Award are relevant:

“41. Consultation

41.1 Consultation regarding major workplace change

(a) Employers to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employers to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 41.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 41.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

[23] It is uncontroversial that the Award required IBCS to consult with Mr Matete about the redundancy of his position as a result of the organisational changes discussed above (see clause 41.1(a) of the Award). Relevant to this Application, the Award required:

(a) IBCS to discuss with Mr Matete the introduction of the change, the effects the changes were likely to have on him and measures to avert or mitigate the adverse effects of such changes,

(b) the discussion to commence as early as practicable after a definite decision had been made, and

(c) for the purposes of those discussions IBCS to provide in writing to Mr Matete all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes and any other matters likely to affect him.

[24] In relation to the obligation to consult, Logan J in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 1009 (CFMEU v BHP Coal) relevantly said at [59] to [60]:

“59.While cl 47 of the Enterprise Agreement, set out above, gives “Consult” or “Consultation” a particular meaning for the purposes of that agreement, that meaning is not, in my view, at variance with a meaning which one might have given those words in any event, having regard to prior authority. I had occasion to consider that meaning in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (2010) 198 IR 382 in which, at 395, [44] - [45], I observed:

44 … A key element of that content is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.

45 To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that ?”. Only in the latter case is there “consultation”. …

An appeal from this judgment was subsequently dismissed by the Full Court.

60. In the present case, it is necessary not just to remind oneself that a person’s right to be consulted does not confer any right of veto. It is also necessary to understand that the cl 47 definition affirms what an ordinary understanding of the word, “consult” would in any event suggest, which is that the obligation to consult does not carry with it any obligation either to seek or to reach agreement on the subject for consultation. Consultation is not an exercise in collaborative decision-making. All that is necessary is that a genuine opportunity to be heard about the nominated subjects be extended to those required to be consulted before any final decision is made. And it bears repeating in this case that that final decision is not the existence of the particular surplus. That genuine opportunity entails furnishing such information about the occasion for consultation as is reasonably necessary for the making of suggestions in respect of the subject for consultation and being receptive to any resultant suggestions. It does not mean that one cannot approach consultation with a particular outcome in mind, only that one’s mind not be unduly fixed.”

Consultation – submissions

[25] IBCS submitted that the following conduct met its obligations under the Award to consult with Mr Matete about the possible redundancy of his position:

(a) Mr Matete was promptly invited to a face-to-face consultation meeting on 22 June 2020 with Mr Rennett and Ms Wong (22 June Meeting);

(b) during that meeting, Mr Matete was provided with a consultation letter dated 22 June 2020 (22 June Letter) which: referenced the GTM Strategy announcement and set out the Centralisation Decision, confirmed that as a result of the Centralisation Decision, it was proposed that Mr Matete’s role would no longer be required, provided that if that was the outcome, Mr Matete would be assisted with seeking redeployment, indicated that IBCS would be commencing a period of consultation with him to allow him to consider the Centralisation Decision and to provide the business with feedback or input (in person, or in writing); and provided Mr Matete with details of IBCS’s EAP provider;

(c) Mr Matete received a briefing kit on 18 June 2020 which contained details about both the GFG Workforce Solutions redeployment program and the RiseSmart outplacement service (if redeployment was unsuccessful); and

(d) during the 22 June Meeting, Ms Wong and Mr Rennett talked through the content of the Consultation Letter with Mr Matete, with reference also to the multiple, recent GFG Alliance and IBCS communications which Mr Matete had received (including the 11 and 15 June communications, and the 18 June announcement), reminded Mr Matete about the resources available to him, asked Mr Matete to provide feedback, and assured Mr Matete that he would have time to think about the 22 June Letter.

[26] Mr Matete did not make any specific submissions about whether IBCS met its consultation obligations pursuant to the Award. However, as I understand his arguments, he contends that the consultation process was not genuinely engaged in by IBCS because:

•  IBCS decided to take the opportunity presented by COVID-19 to make his position redundant,

•  he was informed of his redundancy by Mr Rennett during the 22 June Meeting which was the same day he was made aware of the possibility that he would be made redundant,

•  he had “no choice in the decision for myself being made redundant” and did not have time to think about the decision, and

•  IBCS did not genuinely consult with him about redeployment.

Consideration – consultation

[27] I will now deal with each of the Award’s consultation requirements, beginning with IBCS’s obligation to provide Mr Matete, in writing, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees.

[28] Mr Matete accepted during cross-examination that he recalled receiving an email from the Executive Chairman of the GFG Alliance headed “All Employee Communication” dated 11 June 2020 (attached as HW-3 to exhibit R1), recognised an email dated 15 June 2020 (attached as HW-4 to exhibit R1) and confirmed that he had read that email. He also confirmed that he had read the parts of the 15 June 2020 email dealing with the GFG Workplace Solutions program and explaining that conversations would be held with employees impacted by the measures discussed in the email. Mr Matete also confirmed that he recognised the “IBRCS Transformation Announcement Briefing Kit” dated 18 June 2020 (attached as HW-5 to exhibit R1) and remembered an announcement from IBCS about the “Go To Market Strategy”. Mr Matete did not challenge that he also received the 22 June Letter. Those documents include the following information:

•  11 June 2020 email titled “All Employee Communication” from the Executive Chairman of the GFG Alliance. This email informed Mr Matete about the GFG Alliance decision to reorganise operations to be more flexible and efficient, demand from steel consuming sectors is expected to drop between 20% and 40%, the need for urgent efficiency improvements, a global business optimisation drive across the GFG Alliance asking each business to target 20-30% efficiency gains, the need to reduce headcount in some parts of the business, access to the GFG Workforce Solutions program for redeployment opportunities, and consultation would occur in relation to the impacts on employees;

•  15 June 2020 email from the Regional President (Australia and USA) and CEO InfraBuild. This email informed Mr Matete about the impact of COVID-19 on the Australian residential market, the compounding effect of COVID-19 on the poor financial performance of the business, the need to adjust to falling demand, the likelihood of redundancies, measures would be taken to avoid redundancies, the GFG Workforce Solutions program including redeployment opportunities, and conversations would be had with impacted employees;

•  18 June 2020 IBRCS Transformation Announcement Briefing Kit. This document informed Mr Matete about IBCS’s decision to reduce costs and become more efficient, the reorganisation of the ARC brand and the IBCS brand including reducing their duplicate footprint, impacted employees would be informed of impacts via individual meetings, all impacted employees would be eligible to apply for or express interest in vacant roles, the possibility of redundancies, an outline of the consultation process, the redeployment program and the RiseSmart program to seek new employment; and

•  22 June 2020 letter headed “Proposed Changes and Impact to your Role” delivered by hand to Mr Matete. This letter informed Mr Matete about the redesign of organisational structures to be more cost effective with leaner support functions, the proposition that his position would be made redundant, if redundancy was the outcome he would have the opportunity to seek redeployment, reference to IBCS’s EAP provider, consultation would occur and feedback and input could be provided in either a one on one meeting or in writing, and a further meeting would be conducted on 25 June 2020.

[29] I am satisfied that by providing Mr Matete with the written information to which I have referred in the previous paragraph, IBCS met its obligation to provide Mr Matete with all relevant information, in writing, about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect him.

[30] Next, I will consider whether IBCS commenced the relevant discussion with Mr Matete as early as practicable after a definite decision had been made. The relevant decision is IBCS’s proposal to make Mr Matete’s position redundant. On the evidence before me, that decision was made by IBCS on 18 June 2020 when the GTM Strategy in relation to IBCS, which included the Centralisation Decision, was approved and announced by the business. 29 Ms Wong and Mr Rennett travelled to Newcastle on 22 June 2020 to notify Mr Matete and meet with him regarding the proposal to make his position redundant.30 That is three business days (inclusive) from the date the relevant decision was made. In the context of a relatively large business spread out across NSW and which was conducting a broad review and implementing many changes across its business, I am satisfied that IBCS commenced the relevant discussion with Mr Matete as early as reasonably practicable after the decision had been made.

[31] I now turn to consider whether IBCS discussed with Mr Matete the introduction of the change, the effects the changes were likely to have on him and measures to avert or mitigate the adverse effects of such changes. It was uncontentious that a discussion took place on 22 June 2020 at the Newcastle branch involving Ms Wong, Mr Rennett and Mr Matete regarding the possible redundancy of Mr Matete’s position. However, the content of the discussion is contentious.

[32] IBCS contends that during the 22 June Meeting:

•  Ms Wong and Mr Rennett talked through the content of the 22 June Letter with Mr Matete and referred to the 11, 15 and 18 June communications from the GFG Alliance, InfraBuild and IBCS respectively, reminded Mr Matete about the resources available to him, asked Mr Matete to provide feedback, and assured Mr Matete that he would have time to think about the 22 June Letter,

•  Mr Matete made a comment to Mr Rennett to the effect that the Centralisation Decision was the reason he had not been provided with work, which Mr Rennett rejected,

•  Mr Matete did not provide any feedback in relation to the Centralisation Decision, potential impact to his role or the GFG Workforce Solutions program, or express any interest in redeployment, despite being invited to do so, and

•  Mr Matete asked Ms Wong for his redundancy calculations and Ms Wong explained that she did not have these figures ready, as they had only just begun consulting with Mr Matete in relation to the Centralisation Decision. 31

[33] Mr Matete contends that:

•  during the discussion he was handed two letters, the 22 June Letter and a letter titled “Notice of Redundancy - No Redeployment” (No Redeployment Letter),

•  Mr Rennett said words to the effect that “I would like to advise you that your position is made redundant as of today” and Mr Rennett then went on to specify the terms of the redundancy package,

•  he was not offered a chance to “think over” the proposal that he was to be made redundant,

•  he expressed an interest in redeployment during the 22 June Meeting,

•  Ms Wong and Mr Rennett spoke to him about performance issues, and

•  he did not ask for the calculation of the redundancy figures and instead Ms Wong said that she did not have time to prepare the calculations but would have that information by 26 June 2020.

[34] I accept the evidence of Mr Matete that Mr Rennett went over the content of a potential redundancy package and the unchallenged evidence of Ms Wong and Mr Rennett that they talked through the content of the 22 June Letter with Mr Matete and referred to the 11, 15 and 18 June communications from the GFG Alliance, InfraBuild and IBCS respectively, and reminded Mr Matete about the resources available to him. I also accept Mr Matete’s evidence that he did not ask for the redundancy figures and that Ms Wong raised that issue by saying that she did not have time to prepare the payment calculation. 32 That accords with Ms Wong’s and Mr Rennet’s evidence that Mr Matete did not raise anything in particular.33 That evidence is also harmonious with IBCS’s contention that it had not made a final decision to make Mr Matete’s position redundant at the time of the meeting.

[35] For the following reasons, I prefer the evidence of Ms Wong and Mr Rennett over the evidence of Mr Matete regarding the remaining contentious aspects of the 22 June Meeting. First, for the reasons given below at paragraph [46], I do not accept Mr Matete was given the No Redeployment Letter during the 22 June Meeting. Second, I do not accept that Mr Rennett said words to the effect that Mr Matete was being made redundant as of that day or that Mr Matete did not have a chance to “think over” the proposal. That is contradicted by Ms Wong’s explicit rejection of Mr Matete’s evidence, 34 the email sent by Mr Matete to Ms Wong at 10.30am on 26 June 2020 which states “[c]an you please forward the offer today as I have [an] appointment with Centrelink and need this paperwork” [emphasis added], Ms Wong’s reply email to Mr Matete on 26 June 2020 at 10.32am which states that “[a]s we have not yet confirmed your redundancy I don't have an estimate to provide you at this time”; and the language used in the 22 June Letter, specifically that “it is proposed that the position you occupy Project Coordinator will no longer be required to be performed by anyone and therefore we propose that the role is redundant. If that is the outcome, you will have the opportunity to seek redeployment… we invite you to consider our proposed changes and provide feedback and input… we will meet again to confirm the way ahead on Thursday 25th June 2020” [emphasis added].35 Third, I do not accept Mr Matete’s evidence that he expressed interest in being redeployed or that Ms Wong and Mr Rennett discussed his performance issues during the 22 June Meeting as that evidence was first raised by Mr Matete during his cross-examination and does not accord the later communications between Mr Matete, Ms Wong and Mr Rennett in which performance issues and redeployment were not raised. Further, had Mr Matete been interested in redeployment the letter provided to him on 22 June instructed him as to how to engage in a process to be redeployed, but he did not take any steps to engage in that process. Finally, Ms Wong and Mr Rennett gave consistent evidence regarding the content of the meeting.

[36] Having accepted IBCS’s evidence in relation to the contentious parts of the discussion which took place on 22 June 2020, I am satisfied that IBCS met its obligation to discuss with Mr Matete the introduction of the change (the Centralisation Decision and the proposed redundancy of his position), the effects the changes were likely to have on him (the possible termination of his employment or redeployment) and measures to avert or mitigate the adverse effects of such changes (the redeployment, EAP and RiseSmart programs).

Conclusion – consultation

[37] For the reasons discussed in paragraphs [25] to [36] above, I am satisfied on the balance of probabilities that IBSC complied with its Award consultation obligations in relation to the redundancy of Mr Matete’s position.

Whether reasonable in all the circumstances for the person to be redeployed (s 389(2))

[38] For the purposes of section 389(2) of the Act, the Commission must consider whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must be an appropriate evidentiary basis for such a finding. 36 The word “redeployed” in section 389(2) of the Act should be given its ordinary and natural meaning, which is to “transfer to another job, task or function”.37

[39] If an employer wishes to rely on the “genuine redundancy” exclusion in section 389 of the Act, then it would ordinarily be expected to adduce evidence, on the question of redeployment, as to whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. Such evidence would usually include the steps taken by the employer to identify other jobs, positions or work which could be performed by the dismissed employee. 38

[40] Whether it would have been reasonable in all the circumstances for the person to be redeployed directs attention to the circumstances which pertained when the person was dismissed. 39 However, the circumstances leading up to the time the employee was dismissed may, in particular cases (such as where there has been a redeployment period for an employee prior to their dismissal), be relevant to a determination of whether it would have been reasonable in all the circumstances for the employee to have been redeployed.40

[41] In determining whether redeployment would have been reasonable a number of matters may be relevant, including:

(a) whether there exists a job or position or other work to which the employee can be redeployed; 41

(b) the nature of any available position; 42

(c) qualifications required to perform the job; 43

(d) the employee’s skills, qualifications and experience. The employee should have the skills and competence required to perform the role to the required standard either immediately or within a reasonable period of retraining; 44 and

(e) the location of the job in relation to the employee’s residence and the remuneration which is offered. 45

[42] Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. 46

[43] It is important, however, to appreciate that, because there is a requirement to assess the reasonableness of redeployment “in all the circumstances”, it is not possible to establish binding or decision rules concerning the application of section 389(2) of the Act in all cases; the circumstances of each particular case must be considered. 47

Consideration – redeployment

[44] IBCS contends that there were no reasonable redeployment opportunities for Mr Matete within IBCS or any of its associated entities for the following reasons:

(a) Mr Matete was made fully aware of the existence of the GFG Workforce Solutions redeployment program;

(b) at no time did Mr Matete express any interest in redeployment and/or the GFG Workforce Solutions program;

(c) Mr Matete had specifically requested that IBCS finalise the termination of his employment, with words to the effect that he had “…decided not to stay on, and part ways immediately”;

(d) IBCS considered the vacant roles that were available across the Infrabuild Group in Australia between 16 June 2020 – 30 June 2020 (that is – both within IBCS and across its related entities), there were 17 vacant roles in total, which primarily comprised trades or operator roles based in other states, but none of these roles were reasonable or relevant to the bulk of Mr Matete’s experience, which (based on Mr Matete’s Resume), is primarily in scheduling and design work.

[45] Mr Matete argued that “There was no effort put into redeployment as Grant Rennett stated ‘he had only found out two (2) hours prior to coming to Bennet’s Green’ to make me redundant that this would be happening. The letter I received stated that an effort had been put into redeployment but there were no jobs available. This is completely contrary to what Grant Rennett stated that day.” Further, he gave evidence that he received a letter by hand during the 22 June 2020 meeting which was headed “Notice of Redundancy – No Redeployment” (dated 26 June 2020). In the material filed following the hearing, Mr Matete put forward, for the first time, that Mr Rennett forward dated the No Redeployment Letter to explain the discrepancy in dates. Finally, Mr Matete gave evidence that Mr Rennett made him redundant on 22 June 2020. He says that the preceding facts establish that redeployment was never truly an option.

[46] I do not accept Mr Matete’s evidence that he received a letter headed “Notice of Redundancy – No Redeployment” on 22 June 2020 by hand. First, because no such letter dated 22 June 2020 was provided by Mr Matete, despite both his assertion that it existed during the hearing and a further opportunity following the hearing to provide it to the Commission. Second, because I do not accept Mr Matete’s evidence, given for the first time following the hearing, that Mr Rennett forward dated the letter. Third, because a letter headed “Notice of Redundancy – No Redeployment” was filed with the Commission by both Mr Matete and IBCS, however, that letter was dated 26 June 2020, includes the words “BY EMAIL” to indicate how it was delivered, and the letter was filed by both parties as an attachment to an email sent to Mr Matete by Ms Wong on 26 June 2020. Finally, because I accept Ms Wong’s and Mr Rennett’s consistent evidence that Mr Matete was not provided with that letter until 26 June 2020 which is supported by the previous three points.

[47] I am persuaded by IBCS’s submission that it was not reasonable in all the circumstances for it to redeploy Mr Matete for the following reasons. First, the 11, 15 and 18 June 2020 communications (discussed at paragraph [28] above) which Mr Matete confirmed he received and read informed him that if his position was made redundant, there was a system in place for him to engage in to be redeployed. Second, the letter Mr Matete received by hand during the 22 June Meeting made it clear that IBCS had a system in place to provide Mr Matete with opportunities to be redeployed. Third, as I have found above (at paragraph [34]), Ms Wong and Mr Rennett discussed with Mr Matete that redeployment was an option during the 22 June Meeting. Fourth, there is no evidence that Mr Matete made any effort to engage in the redeployment program. Fifth, and most importantly, Mr Matete stated in his email to Ms Wong, sent at 2.12pm on 26 June 2020, that he had “decided not to stay on, and part ways immediately” despite being aware of the potential for redeployment. 48 It was not reasonable in those circumstances for IBSC to redeploy Mr Matete; he declined to engage with the process for redeployment put in place by the employer and instead decided to “part ways immediately” and avail himself of the redundancy package being offered.

[48] I have not made any findings in relation to whether any particular positions were reasonable redeployment opportunities, because in circumstances where Mr Matete decided to take up the offer of redundancy while aware that there was a process he could engage in to seek redeployment, it was not reasonable in all the circumstances for Mr Matete to be redeployed to any of those positions.

Conclusion – redeployment

[49] For the reasons provided in paragraphs [44] to [48] above, I am satisfied that it would not have been reasonable in all the circumstances for Mr Matete to have been redeployed within IBCS’s enterprise or an enterprise of an associated entity of IBCS.

Conclusion – genuine redundancy

[50] I have found that Mr Matete’s job was no longer required to be performed by anyone because of changes in IBCS’s operations requirement, IBCS complied with its consultation obligations under the Award, and it would not have been reasonable to redeploy Mr Matete in all the circumstances. Accordingly, I am satisfied that Mr Matete’s dismissal was a case of genuine redundancy within the meaning of s 389 of the Act. It follows, by reason of s 385(d) of the Act, that Mr Matete was not unfairly dismissed. I therefore dismiss the Application.

DEPUTY PRESIDENT

Appearances:

Mr J Matete on behalf of himself
Ms G Rips, Senior Adviser of the Australian Industry Group,on behalf of the Respondent

Hearing details:

2020.
Newcastle (by videoconference):
19 October.

Final written submissions:

Applicant, 9 November 2020
Respondent, 2 November 2020

Printed by authority of the Commonwealth Government Printer

<PR724756>

 1 Section 389(1)(a) of the Act

 2   Jones v Department of Energy and Minerals (1995) 60 IR 304 (Jones) at 308 per Ryan J; applied in Ulan Coal Mines Limited v Howarth [2010] FWAFB 3488;(2010) 196 IR 32 (Ulan Coal 1) at [17]

 3   Ibid

 4   Ibid

 5   Dibb v Commissioner of Taxation (2004) 136 FCR 388 at 404-5

 6   Kekeris v A. Hartrodt Australia Pty Ltd[2010] FWA 674 at [27] per Hamberger SDP

 7   Johnston v Blue Circle Southern Cement Pty Ltd (2010) 202 IR 121 at [48]

 8   Ex R2 at [8]

 9   Ex R2 at [8]

 10   Ex R1 at [8]

 11   Ex R1 at [8]

 12   Ex R2 at [23]

 13   Respondent’s submissions at 4.1

 14   Ex A1

 15   Exhibits A1 and A2

 16   Ex A3

 17   Ex R2 at [19]

 18   Ex R2 at [17] – [18]

 19   Ex R2 at [18]

 20   Ex R2 at [25]

 21   Ex R2 at [32]

 22   Ex R2 at [23] & [26]

 23   Ex R1 at [13]; Ex R2 at [27]

 24   Ex R2 at [30] – [36]

 25   Ex R1 at [37]

 26   Ex R1 at [54] – [63]

 27   Ex R1 at [37]; Ex R2 at [27]

 28   Ex R1 at [63]; Ex R2 at [46]

 29   Ex R2 at [36]

 30   Ex R1 at [17]; Ex R2 at [37]

 31   Respondent’s submissions at 5.4 – 5.6

 32   Ex A2

 33   Ex R1 at [24]; Ex R2 at [51]

 34   Second statement of Ms Wong dated 22 October 2020 at [3d.]

 35   Ex A1 at HW-6 and HW-9

 36   Technical and Further Education Commission T/A TAFE NSW v Pykett[2014] FWCFB 714; (2014) 240 IR 130 (TAFE) at [36]

 37   Ibidat [25]

 38   Ibid at [36]-[37]; Teterin & Ors v Resource Pacific Pty Limited t/a Ravensworth Underground Mine[2014] FWCFB 4125; (2014) 244 IR 252 (Teterin) at [28]-[29]

 39   TAFE at [24] & [35]; Ulan Coal Mines Ltd v Honeysett[2010] FWAFB 7578; (2010) 199 IR 363 (Ulan Coal 2) at [28]

 40   Bhalla v Welltech Total Water Management[2014] FWC 7565 at [55]

 41   Ulan Coal2 at [28]

 42   Ibid at [28]

 43   Ibid at [28]

 44   Ibid at [28] & [34]

 45   Ibid at [28]

 46   Ibid at [34]

 47   Teterin at [35]

 48   Ex R1 at HW-9; Ex R2