Jason Dreja v HSBC Bank Australia Limited

[2020] FWC 2762

[2020] FWC 2762

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Dreja
v
HSBC Bank Australia Limited
(U2019/14443)

DEPUTY PRESIDENT BEAUMONT PERTH, 26 JUNE 2020

Application for an unfair dismissal remedy – genuine redundancy – deficiency in consultation per relevant award – consideration of whether dismissal was unfair – dismissal fair despite non-compliance with Award consultation provisions.

[1] This decision concerns an application by Mr Jason Dreja for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth)(the Act). HSBC Bank Australia Limited (the Respondent) contends that Mr Dreja’s dismissal was by way of a genuine redundancy and was not unfair.

[2] From early 2019, Mr Dreja had been the Branch Manager for the Respondent’s Perth branch, having been employed with the Respondent in other branch management positions since 2014. However, in the latter half of 2019, the Respondent reviewed its management structure in Western Australia and a decision was made to restructure it. The position of Branch Manager Perth would be made redundant (redundant position) and replaced with a new position which assumed the duties and responsibilities of that role in addition to managing the Western Australia region (new position). Mr Dreja applied for the new position without success, and while there was a period in which the business sought to redeploy Mr Dreja, this pursuit was also unsuccessful.

[3] In short, I am satisfied the evidence establishes that Mr Dreja’s dismissal was not by way of a genuine redundancy and therefore the Respondent’s jurisdictional objection is not upheld. However, it does not follow that I have concluded that Mr Dreja’s dismissal was unfair. To the contrary, the dismissal was not harsh, unjust or unreasonable in all of the circumstances.

[4] The Respondent no longer required Mr Dreja’s job to be performed by anyone because of changes in the operational requirements of its enterprise. Although there was non-compliance with the consultation provisions under the Banking, Finance and Insurance Award 2020 (Award), which requires an employer to provide information in writing, I was unconvinced that the non-compliance rendered Mr Dreja’s dismissal as unfair. At all relevant times Mr Dreja was informed about the organisational review, the restructure of management within Western Australia, the likely effect that this would have on him, and the processes in place for Mr Dreja to apply for the new position that in part subsumed the duties and responsibilities of his role. In addition, he was provided with information about the redeployment process. Concerning redeployment, I am not satisfied that it would have been reasonable in all the circumstances for Mr Dreja to be redeployed, and it was not apparent that the Respondent had breached its ‘Redundancy Policy Guidelines for Line Manager and Employees’ (Redundancy Policy).

[5] Accordingly, Mr Dreja’s dismissal was neither harsh, unjust nor unreasonable, as explained in my reasons that follow. Therefore, Mr Dreja’s application for an unfair dismissal remedy is dismissed and an Order 1 will be issued to that effect.

The background of the matter

[6] Mr Dreja started work for the Respondent on 20 January 2014 as a Branch Manager of Subiaco. 2 He gave evidence of his performance assessment and reviews over a period of 2014 to 2018.3 In 2018, Mr Dreja stated that his performance assessment and review showed him rating as a ‘Strong Performer, Strong Behaviours’ and his total portfolio growth was 134%. The comments in the 2018 performance and assessment review, were said to have included:

a) Through Jason’s leadership he has driven the team members to achieve throughout the

year. There has been a significant improvement of overall results for the PBC’s [sic].

b) Due to Jason’s strong business development and Leadership skills he will be taking on

the challenge in 2019 as BM Perth Branch, to assist the RM’s [sic] in business development

and increase overall performance of Perth Branch.

c) Jason’s behaviour rating is strong and as he builds positive and lasting relationships

with a wide range of customers and colleagues.

d) Jason actively shares insights and information with the WA Management Team. 4

[7] Mr Dreja gave evidence that in 2019 he moved to the Perth branch, which according to him was Western Australia’s largest branch. 5 During the course of 2019 Mr Dreja in consultation with the Corporate Partner Team Manager ‘onboarded’ a new corporate partner, and events (corporate assumedly) were held during the course of the year.6

[8] In March 2019, Mr Dreja learnt that there was to be a change of management at a regional level. 7 He was advised that his Line Manager, Ms Kathy Rajkovic, was transferring into another position.8

[9] Having experienced a medical event at work on 20 June 2019, Mr Dreja was admitted for medical assistance and thereafter had a period of leave. 9 Upon his return to work around 8 July 2019, Mr Dreja worked modified hours for a two week period.10

[10] Mr Dreja stated that around 28 June 2019, he was advised that he would now be reporting to Ms Del Vecchio, Head of Distribution. 11 According to Mr Dreja, Ms Del Vecchio was often unable to take calls with regard to operational matters he needed to discuss and he found her manner harsh, dismissive and impatient when he required her attention.12

[11] Mr Dreja recalled an occasion where Ms Del Vecchio emailed him a request which he found very abrasive in tone. The email concerned a staff member who was working more hours than his position allowed for. 13 As this was put in place by the previous Perth Manager, Mr Dreja said that he could not provide answers to Ms Del Vecchio’s enquiries.14

[12] Ms Del Vecchio gave evidence that when she commenced as the Head of Distribution, part of her role was to assess the branch network in Western Australia and decide how to best fill the role of Regional Manager for the State. In July 2019, Ms Del Vecchio started her strategic review of the Western Australian Retail Banking and Wealth Management business. She visited Perth in July 2019 and spent time with the branches and branch managers. 15

[13] It was Mr Dreja’s account that on 16 July 2019, Ms Del Vecchio visited the Perth branch and gave a presentation, in addition to having a face to face meeting with him for approximately 20 minutes. 16 At the meeting, Mr Dreja was informed that Ms Del Vecchio was reviewing the Western Australian operations and that she had two outcomes in mind – and that Mr Dreja would be happy with either outcome.17

Restructure of the Perth Branch Manager position and consultation

[14] Having conducted her review, Ms Del Vecchio determined that the business did not require the roles of Regional Manager, Western Australia and Branch Manager, Perth, and the branch network could be restructured to create a single role encompassing the duties of both roles. 18

[15] Ms Del Vecchio’s evidence was that she prepared a job description for the new role and it was graded at a GCB4 level role. 19 The job description set out the knowledge, experience and qualifications, which included a ‘Bachelor’s degree in business, finance, related field or equivalent experience’.20

[16] Ms Del Vecchio stated that all branch manager roles at the Respondent, regardless of the number of staff they are responsible for, are graded at a GCB5 Level. 21 Whether the branch manager looks after a team of eight staff or 45 staff (as is the range of branch sizes across HSBC Australia’s network), the role grade remains at a GCB5 Level.22 This is primarily because the role is one of administration, team leadership and management, whilst driving branch activity with hands on customer management.23

[17] The new position, said Ms Del Vecchio, was responsible for the overall management of the Western Australia region, comprising 46 staff across five sites. 24 It included overall accountability of five very different asset and liability portfolios, a deep understanding of each of the branch profit and loss positions and a solid understanding and respect of the local challenges each branch faces. Ms Del Vecchio stated that the position holder was required to have strong financial acumen and business capability.25

[18] In August 2019, Ms Del Vecchio conducted a video conference with Branch Managers in Western Australia, including Mr Dreja. At the meeting Ms Del Vecchio communicated that the region required a strong regional manager permanently located in Western Australia. 26

[19] Mr Dreja reported being called by Ms Del Vecchio’s Assistant on 16 September 2019, to arrange a telephone call later that day at 3.00pm. 27 On the commencement of the call Mr Dreja was informed that a member of the Human Resources team was also on the call.28

[20] Ms Del Vecchio then proceeded to alert Mr Dreja that she was restructuring Mr Dreja’s position such that the role would be restructured to a Regional Manager WA and Perth Branch Manager WA role. 29 Mr Dreja stated that when he asked Ms Del Vecchio what would happen with regard to his employment if unsuccessful for the new position, she advised him that if he was not redeployed then he would be made redundant.30

[21] The new position was advertised on or around 9 October 2019, and Mr Dreja applied for the role around that same date. 31 Mr Dreja interviewed for the position with Ms Rajkovic, Regional Manager NSW/Qld and Mr Michael Gunn, Distribution Business Manager on or around the week of 21 October 2019. Mr Dreja’s evidence was that he was advised shortly after the interview that he had progressed to the second and final interview with Ms Del Vecchio.32

[22] In short, Mr Dreja’s account of the interview was that Ms Del Vecchio agreed that the new position would still require 60% of branch manager duties in line with his current role. Mr Dreja stated that Ms Del Vecchio asked whether he would be undertaking further studies, and demanded that Mr Dreja remove a current referee from his resume and resubmit the resume. 33 During the hearing, Ms Del Vecchio clarified that she had asked Mr Dreja to remove Ms Rajkovic as a referee given her involvement in the interview process.

[23] Mr Dreja gave evidence that on 4 November 2019, Ms Del Vecchio called him and informed him that he was unsuccessful for the new position, indicating that he was ‘micro’ and not ‘macro’ in his business approach. 34 Mr Dreja stated that he was informed during the call that he was now on a period of consultation and that he was allowed to ask questions around the structural changes and personal impact upon himself.35

[24] Come 19 November 2019, another internal employee was promoted to the role of Regional Manager WA and Perth Branch Manager (the new position).

Further consultation and redeployment

[25] Mr Dreja stated that, on 7 November 2019, he was sent a letter setting out he would be supported for a set period while a comparable role was sought. 36 On that same day, there was a videoconference with Ms Del Vecchio and a HR Advisor.37 Mr Dreja notes that during the meeting, Ms Del Vecchio informed him he would need to return all the Respondent’s issued belongings and he was not to return to the branch.38 Mr Dreja gave evidence that he expressed concerns about how he would be able to search and seek out redeployment opportunities if he did not have access to the Respondent’s information and the ability to access jobs advertised internally. The HR Advisor agreed to send him weekly emails with the job vacancies listed.

[26] It was Mr Dreja’s evidence that a HR Advisor informed him he would be required to apply and interview for any comparable branch manager roles. Further, he would not receive a role to transition into , as per the Respondent’s Redundancy Policy in their handbook. Mr Dreja drew the Commission’s attention to the HSBC Redundancy and Redeployment FAQ section 7 and 8, which were said to clearly state that he would be transitioned into a comparable role and would have priority over non-redeployees. 39 On 11, 20 and 26 November 2019, Mr Dreja was sent an email which outlined available roles in various branches. 40

[27] During the period of ‘redeployment’, Mr Dreja stated he made enquiries with Ms Rajkovic about branch manager positions in the Eastern States. Mr Dreja gave evidence that he was informed that he would have to apply for those positions. Ms Del Vecchio confirmed Ms Rajkovic informed her that Mr Dreja had contacted her about being appointed directly into a role. Ms Del Vecchio stated that she informed Ms Rajkovic that he could apply but would need to be assessed fairly against all applicants for the role and would need to be prepared to relocate to Sydney for the position. 41

[28] At hearing, Mr Dreja gave evidence that after the initial discussion with Ms Rajkovic, he made no further enquiries regarding the positions. Mr Dreja was not redeployed within the Respondent’s business and subsequently his employment came to an end on 6 December 2019.

Matters in dispute

[29] Mr Dreja contends that his dismissal was not by way of genuine redundancy on the basis that his position was still required, there was no consultation as prescribed by the Award, and it would have been reasonable in all the circumstances to have redeployed him.

Protection from Unfair Dismissal

[30] Section 394(1) of the Act provides that a person who has been dismissed may apply to the Commission for an order under Division 4 of Part 3-2 of the Act granting a remedy for unfair dismissal. It is not in dispute that Mr Dreja made his application for an unfair dismissal remedy within the period required in s 394(2) of the Act, he was covered by the Award, and the Respondent is not a small business employer.

[31] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that the circumstances set out at s 385 of the Act existed. Section 385 reads:

385 What is an unfair dismissal

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

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[32] Section 396 of the Act provides that before considering the merits of an application for an unfair dismissal remedy order, the Commission must determine some other initial matters. Section 396 is as follows:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[33] The effect of s 396 of the Act is that if a dismissal was a case of genuine redundancy, the Commission does not need to consider whether it is satisfied the dismissal was harsh, unjust or unreasonable.

Genuine redundancy

[34] The term ‘genuine redundancy’ is defined in s 389 of the Act in the following terms:

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.

[35] The abovementioned factors are traversed, starting with whether Mr Dreja’s job was no longer required to be performed.

No longer requires the person’s job to be performed

[36] On her commencement, Ms Del Vecchio took a deliberate course to instigate a review of the organisational structure of the Respondent’s business in Western Australia. According to the Respondent, that review resulted in Mr Dreja’s job no longer being required to be performed.

[37] To constitute a genuine redundancy, the Commission must be satisfied that the position was no longer required to be performed by anyone because of operational changes to the employer. 42 A mere ‘desire to do things differently’ would not be enough. This is because evidence of a mere desire does not say anything about ‘operational requirements’.43

[38] The Act does not define the term ‘operational requirements’. However, the term ‘operational requirements’ appears to be of broad import. Changes to the operational requirements of the enterprise can arise from external events and internal events. It permits consideration of many matters including the state of the market in which the business operates and the application of good management to the business. 44 For example, a downturn in trade that reduces the number of employees required, and internal matters, such as decisions that result from a reassessment or reappraisal conducted by the business of its own needs,45 can constitute operational reasons. Ultimately, it is the enterprise that determines what its operational requirements are.

[39] Furthermore, an employee may still be genuinely made redundant when there are aspects of the employee’s duties still being performed by other employees. 46 Including where there is the redistribution of tasks done by a particular person between several other employees, thus resulting in the person’s job no longer existing.47 It should be noted it is the ‘job’ that is no longer required to be performed, rather than the ‘duties’.48 The onus rests with the employer to prove that, on the balance of probabilities, the redundancy was due to changes in operational requirements.49

[40] Ms Del Vecchio’s review appears to have resulted in a decision to restructure the managerial structure of the Respondent in Western Australia, such that the Perth Branch Manager position became redundant and was replaced by the new position. Ms Del Vecchio provided evidence of the difference between the redundant position and that of the new position. While Mr Dreja gave evidence that 60% of the new position consisted of duties of his redundant position and this had been confirmed by Ms Del Vecchio in his interview, this assertion was not confirmed by Ms Del Vecchio.

[41] Ms Del Vecchio’s detailed comparison of the redundant position and the new position showed that the two positions were markedly different regarding the supervisory scope, financial responsibility, and primary focus, and that the new role assumed overall accountability of five very different asset and liability portfolios.

[42] The Respondent had decided that its operational requirements had changed, and as a result, it no longer wanted the Perth Branch Manager role to be performed by anyone. Instead, the duties and responsibilities of that position were to be subsumed into a more expansive position, which held greater fiscal accountability. Ms Del Vecchio gave evidence that she considered the Western Australian region needed the strength and value of a local, experienced State leader to rally the team, and provide clear direction and development. Reflection on the results of Western Australia in the previous 12 months, had led Ms Del Vecchio to observe that the multi-channel business in Western Australia was becoming more significant and needed a Regional Manager to lead and sensibly grow the state. However, she appeared cognisant that whilst this position would take up the majority of the incumbent’s time, with only five branches across the State, it was the Respondent’s smallest standalone Regional Manager position and therefore, there was a clear opportunity to give the role some additional responsibility. The rationale for the new position was evident, and considering evidence before me, I am content that the new position was not simply ‘a desire to do things differently’.

[43] If the employer decides that its operational requirements have changed and, as a result, it no longer wants a particular role performed by anyone, this is plainly enough for the purpose of s 389(1)(a) of the Act. It follows from my analysis above that there has been a change in the operational requirements for the purposes of s 389, and the redundant position was no longer required to be performed by anyone because of this.

Consultation

[44] It was uncontentious that the Banking, Finance and Insurance Award 2020 (Award) covered Mr Dreja.

[45] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth)states the following in respect of consultation in s 389 of the Act:

1550. Paragraph 389(1)(b) provides that it will not be a case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.

[46] If an employer is obliged to consult and fails to do so, it is said that there cannot be a genuine redundancy. 50 Consultations should be meaningful and should be engaged in before an irreversible decision to terminate has been made.51

[47] Consultation is not perfunctory advice on what is about to happen, consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker. 52

[48] The Award provides:

28. Consultation about major workplace change

28.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(i) the introduction of the changes; and

(ii) their likely effect on employees; and

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

28.2 For the purposes of the discussion under clause 28.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

(c) any other matters likely to affect employees.

28.3 Clause 28.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

28.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 28.1(b).

28.5 In clause 28 significant effects, on employees, includes any of the following:

(a) termination of employment; or

(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(d) loss of, or reduction in, job tenure; or

(e) alteration of hours of work; or

(f) the need for employees to be retrained or transferred to other work or locations; or

(g) job restructuring.

28.6 Where this award makes provision for alteration of any of the matters defined at clause 28.5, such alteration is taken not to have significant effect.

[49] Mr Dreja expressed consternation about the timing of consultation. That is, he considered that he was not consulted about the operational changes before Ms Del Vecchio decided that a restructure was the preferable course. I am appreciative that Mr Dreja was disappointed that he was not consulted prior to Ms Del Vecchio determining the new structure – specifically the management structure within the Western Australian region. However, the Award does not require this, as was submitted by the Respondent.

[50] The Respondent submitted that its compliance with cl 28.2 of the Award occurred after Mr Dreja failed to obtain the new position. To justify the timing of the written component of the consultation, the Respondent submitted that had Mr Dreja been successful for the new position, it would have been futile to provide all relevant information prior to that point. Therefore, once it became apparent that Mr Dreja would not be commencing in the new position, a letter was issued of 7 November 2019, which, said the Respondent, satisfied the obligation in cl 28.2.

[51] In light of the discussions held with Mr Dreja on 16 September 2019 and on 4 November 2019, I am satisfied that the requisite discussions were held as soon as practicable after Ms Del Vecchio had made her decision in accordance with cl 28.1.

[52] However, I am not similarly persuaded that the Respondent complied with its obligations under cl 28.2 of the Award. It was not until 7 November 2019 that the Respondent provided in writing, all relevant information about the changes. While the Respondent may have considered it futile to provide all relevant information in writing prior to Mr Dreja being informed whether or not he had been successful with his application for the new position, I do not, in the circumstances before me, consider that ‘futility’ has any bearing. The only reason why Mr Dreja was applying for the new position was that his former position, as he was informed on 16 September 2019, had been made redundant.

[53] Clause 28.2 of the Award speaks of providing the affected employee all relevant information about the changes in writing – ‘for the purposes of the discussion’. The discussion was held on 16 September 2019, and it was not until near on two months later that the written information ‘for the purposes of the discussion’ was provided. While this section of the Award does not expressly stipulate the timing for the provision of such written information, it is implicit in the phrase ‘for the purposes of the discussion’ that there is a temporal connection between the provision of the written information and the discussion held. In this case, the period between the discussion held on 16 September 2019, and the subsequent provision of written information on 7 November 2019, was insufficient, in my view, to satisfy the Respondent’s obligation to provide Mr Dreja, for the purposes of the discussion under cl 28.1(b), all relevant information about the changes in writing.

[54] It follows that I am not satisfied that Respondent has complied with the Award obligation to consult about the redundancy.

Redeployment

[55] In Ulan Coal Mines Ltd v Honeysett 53 (Honeysett) the Full Bench observed that s 389(2) placed a limitation on an employer’s capacity to mount the defence that the dismissal was a case of a genuine redundancy. It expressed that the defence was not available, if it would have been reasonable to redeploy the employee; this of course is a hypothetical question answerable only by reference to all the relevant circumstances.54

[56] Whether it would have been reasonable to redeploy the employee is anchored to the point of time of the dismissal. 55 Further, in answering the question, consideration turns to the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence, and the remuneration offered.56

[57] The consideration of the reasonableness of redeployment also involves an examination of the actions taken by the employer to redeploy the employee and the actions of the employee, that is, her or his conduct and approach to the redeployment. In the case before me, it was undisputed that the redeployment period commenced on 11 November 2019 and, at the relevant time, the Respondent had branch manager positions available in the Eastern States. These positions were of the same banding as the redundant position. It was uncontroversial that Mr Dreja had been informed he would have to apply for such positions. To clarify, Mr Dreja would not simply be transferred into one of those positions, but rather would need to compete against other candidates.

[58] It was apparent that the new position was distinguishable from Mr Dreja’s redundant position. In light of those differences, which I have traversed in this decision, I am satisfied that it would not have been reasonable in all the circumstances to redeploy him into that new position.

[59] However, turning back to the positions in the Eastern States, the Respondent observed that Mr Dreja made enquiries concerning the branch manager positions in the Eastern States, but had not indicated to the Respondent he sought to transfer or otherwise apply for them. If Mr Dreja had indicated he wanted to apply for the positions, said the Respondent, he would have been prioritised for the position. However, given he did not express his interest in the positions and had made only a preliminary enquiry with Ms Rajkovic, it could not be said that the Respondent was unwilling to redeploy him into those positions.

[60] The Respondent contended that the branch manager positions in the Eastern States were not in effect equivalent to the redundant position held by Mr Dreja in Perth. According to the Respondent, not all branch manager positions were created equal, with some being more senior. Further, it was important to appreciate, said the Respondent, that a branch manager was required to have relationships with its stakeholders within its community. The communities in the circumstances of this case were geographically distant and arguably differed from the community that Mr Dreja had been servicing. Therefore, when considering ‘reasonableness’, regard was to be had to these matters.

[61] Concerning the requirement to relocate, the Respondent submitted that if it had compelled Mr Dreja to move to take up a position in the Eastern States, on an involuntary basis, this would have been found to have been unreasonable.

[62] The Respondent’s Redundancy Policy set out:

2. Policy

HSBC Bank Australia is committed to try to seek alternative employment for employees whose positions are redundant.

However, in circumstances where an employee’s position has become redundant and alternative employment is not available they will be retrenched on the terms set out in this policy.

[63] In respect of defining the term ‘redeployment’, the Redundancy Policy set out:

Redeployment is the process that aims to place an employee whose position has been made redundant into an alternative role such as:

i. Comparable position which is a position:

● at the same level within the organisation

● that allows for a reasonable transfer of existing skills, but may require some additional training for which HSBC Bank Australia will provide.

● that features comparable duties to the existing role.

● which is at the same location or another location that is within a reasonable commuting distance of the redundant position.

ii. Acceptable Position which is a position that may be at the same or a different level within the organisation and entails a significant change in duties which may require different skills and abilities, but which the employee considers acceptable. The position may be at the same location or another location within a reasonable commuting distance.

[64] The Respondent’s Redundancy Policy, notwithstanding that the Respondent has a national footprint, clearly contemplates that a ‘comparable position’ or an ‘acceptable position’, both of which appear to constitute an ‘alterative role’, will, in effect, be located at the same location or another location that is within a reasonable commuting distance to the redundant position.

[65] ‘Redeployment’, as defined under the Redundancy Policy is considered a process where the employee is ‘placed’ into an alternative role. The reference to the word ‘placed’ appears to support Mr Dreja’s contention that requiring him to apply for a position was not ‘transferring’ or ‘placing’ him into a role.

[66] While the Redundancy Policy, stipulated that ‘[T]he employee supported by their manager is accountable for identifying suitable roles within the Company and utilizing support mechanisms available’, and placed responsibility upon the ‘redundant’ employee to upload her or his resume on a ‘Recruitment Database’, it is not apparent that an affected employee was required under the Policy to ‘apply’ for positions.

[67] Further, while Mr Dreja conceded he did not upload a resume on the ‘Recruitment Database’, he nevertheless submitted that he had provided the Respondent with an updated resume when interviewing for the newly created position only weeks earlier.

[68] The examination of the content of the Redundancy Policy is relevant to my consideration of whether it would have been reasonable in all the circumstances for Mr Dreja to be redeployed. However, its contents are not determinative of the issue.

[69] In respect of applying for positions in a redeployment process, I note that the following passage of obiter in Honeysett is particularly apt in the circumstances of this case:

…It is an essential concept of redeployment under s 389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. 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. This is because it would have been reasonable to redeploy the employee into the vacancy. 57

[70] Mr Dreja submitted that enquiring about the positions with Ms Rajkovic was enough to demonstrate his interest in being transferred into one of the branch manager roles. Based on the evidence before me, I do not consider that to be the case.

[71] Having made his initial enquiry to Ms Rajkovic about the positions, Mr Dreja did not inform his employer or otherwise agitate that he sought to be redeployed to one of those positions. Instead, he remained quiet. However, it is also the case that the Respondent did not make it known to Mr Dreja that redeployment into one of the positions was possible. Clearly, the Respondent informed Mr Dreja he was required to apply for the positions.

[72] However, I accept that there is no established requirement that an employer must conduct an internal process before seeking candidates from the external market, where the result is internal candidates compete against external candidates. Further, there is no requirement, mandated by s 389(2), that internal candidates be given preferential treatment. 58 However, in ‘all the circumstances’ of a particular matter, whether there was an internal process in advance of an external one is a relevant consideration in determining whether redeployment was reasonable.59

[73] Mr Dreja formed the view that the Respondent, insofar as the obligation of redeployment under the Act was concerned, was required to transfer him into a position rather than require him to apply for positions he had found within the business and deemed as suitable.

[74] Based on the evidence, I am unpersuaded that Mr Dreja was not sufficiently skilled or experienced to perform the branch manager positions. Further, the evidence did not support a finding that the branch manager positions in the Eastern States were different to Mr Dreja’s redundant role, to the extent that it negated it being reasonable in all the circumstances for him to be redeployed into one of those positions. While, Counsel for the Respondent traversed the difference in stakeholder relationships and community knowledge, again I do not think these factors favoured a conclusion that it would not have been reasonable in all the circumstances for Mr Dreja to be redeployed.

[75] However, there is a pressing consideration in the circumstances of this case; that is the geographical location of the branch manager positions, all of which were in the Eastern States.

[76] It strikes me that the relocation in the circumstances was not simply to another position with the Perth metropolitan area, or for that matter to a branch sitting within regional Western Australia, as contemplated by the Redundancy Policy. Such redeployment would have required Mr Dreja to move to another State, with all the associated costs and inconveniences that arise from such a move for both him and the Respondent. However, while there was evidence of Mr Dreja making an enquiry about the financial support that would be proffered for such a transfer, there was no evidence before me regarding the costs, personal implications or ‘inconveniences’ that either Mr Dreja or the Respondent would bear arising from a redeployment in such circumstances.

[77] However, given the extent of the geographical distance between the location of the redundant position, and that of the branch manager positions, in the absence of Mr Dreja informing the Respondent – unequivocally, he sought to be placed into one of those positions, it is an oddity to have assumed he would simply be moved to a geographically distant location.

[78] This is not to say that in some circumstances it appears entirely plausible that an employer will simply inform the employee of her or his redeployment position, and the employee is neither required nor expected to inform that she or he wishes to be placed into the new role. However, this is not such a case. The positions were markedly geographically distant to the redundant position, and as such the absence of communication from Mr Dreja that he wanted to be redeployed into those positions, must be considered.

[79] Further, the location of a position is a relevant consideration when grappling with whether it would have been reasonable in all the circumstances for Mr Dreja to be redeployed. The Respondent’s Redundancy Policy clearly contemplated redeployment to locations that were in reasonable commuting distance to the employee’s place of residence. There was no reference in that Policy to interstate transfers or redeployment. This was the case notwithstanding that the Respondent had a national footprint.

[80] While it is a veridical fact in this matter is that Mr Dreja was required to apply for the branch manager positions in the Eastern States, this does not dissuade me from making the finding that that the geographical location of the vacant positions was such that it rendered the positions unsuitable for the purpose of redeployment. While Mr Dreja was provided with lists of vacant positions on a regular basis during the redeployment period, he made no further enquiry concerning those positions and did not indicate his interest in any position on that list. In effect, having made only the one enquiry concerning the branch manager positions in the Eastern States, Mr Dreja effectively sat on his hands awaiting the conclusion of the redeployment period.

[81] I am therefore satisfied that it would not have been reasonable in all the circumstances for Mr Dreja to have been redeployed into one of the branch manager positions on the Eastern seaboard. Further, while Mr Dreja was provided with lists of vacancies during the redeployment period, he made no enquiry with the HR Advisor about the vacancies. It follows that it would not have been reasonable in all the circumstances for Mr Dreja to have been redeployed into a vacant position for which he has shown no interest. In arriving at these conclusions, I have also considered the decision of the Full Bench in Technical and Further Education Commission T/A TAFE NSW v Pykett. 60

Was Mr Dreja’s dismissal unfair within the meaning of the Act?

[82] I have concluded that the termination was not a genuine redundancy within the meaning on the Act, therefore consideration must now turn to whether the dismissal is unfair. Mr Dreja’s dismissal will of course be unfair if it is found to be harsh, unjust or unreasonable. Section 387 of the Act sets those matter that must be taken into account when considering whether the dismissal was harsh, unjust or unreasonable. The section contemplates that an overall assessment as to the nature of the dismissal must be made by the Commission. For the sake of convenience, I have used the various provisions of s 387, to outline my consideration of the matter.

[83] Ordinarily, consideration of each of the criteria in s 387 is required. However, because the dismissal was not a case of genuine redundancy the consideration of the matters specified in ss 387(a), (b) and (c) are neutral, unless, in the circumstances, another valid reason is identified. No other valid reason was identified by the Respondent; however, for the sake of fulsomeness those matters in s 387 are traversed.

Section 387(a) – whether there was a valid reason for the dismissal related to capacity or conduct

[84] To constitute a valid reason, the reason must be valid in the context of the employee’s capacity or conduct. 61

[85] In light of the dismissal being by way of redundancy, in terms of the substantive basis for the redundancy more broadly, this is not a valid reason, at least as contemplated by s 387(a). In all the circumstances of this case I regard this element of s 387 as a neutral consideration in respect of whether the dismissal was harsh, unjust or unreasonable.

Section 387(b) – notification of the reasons for dismissal

[86] Notification relates to the valid reason as contemplated by s 387(a) of the Act, and such notification must be undertaken before the dismissal. 62

[87] Mr Dreja was notified of the reason as part of his dismissal, but the reason does not relate to any valid reason, within the meaning of s 387(a). Consequently, in all the circumstances of this case, I regard this element of s 387 as a neutral consideration in respect of whether the dismissal was harsh, unjust or unreasonable.

Section 387(c) – an opportunity to respond to any reason related to her capacity or conduct

[88] This does not arise here for reasons outlined above. Consequently, in all the circumstances of this case I regard this element of s 387 as a neutral consideration in respect of whether the dismissal was harsh, unjust or unreasonable.

Section 387(d) – any unreasonable refusal by the Respondent to allow a support person

[89] While there were meetings during the consultation and redeployment phases in which the presence of a support person might arise, on the evidence before me it was not apparent that Mr Dreja thought to request one or requested a support person be present. His evidence suggests that the dearth of information, concerning the purpose of such meetings, did not place him in a position to realise a support person might be sought.

[90] While this point may have implications for the fairness of the dismissal, there was however no request for a support person, and therefore this consideration is not relevant in this context.

Section 387(e) – warnings regarding unsatisfactory performance

[91] The Respondent did not assert that the dismissal of the Mr Dreja related to his unsatisfactory performance, so this matter is not relevant to my consideration as to whether the dismissal was harsh, unjust or unreasonable.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal, and section 387(g) – the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.

[92] The evidence before me allows for the conclusion that the Respondent is a large employer and any concerns about the impact of the procedures it adopted cannot be mitigated through a consideration of its size. It is also apparent that at all material times, Ms Del Vecchio had recourse to a staff member versed in human resources and therefore s 387(g) of the Act has limited bearing in excusing a procedural fairness defect, if there was one.

Section 387(h) – other matters considered to be relevant

[93] Having considered each of ss 387(a)-(g) of the Act, it remains necessary to now consider s 387(h). Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. Although s 387 includes matters that the Commission must take into account in deciding how to exercise its discretion, the discretion conferred is otherwise expressed in general, unqualified terms. However, the discretion conferred must not be exercised arbitrarily, capriciously or so as to frustrate the legislative purpose. Further, the discretion is also confined by the subject matter, legislative context and purpose. In this respect, s 381 (the Object of Part 3-2) is noted, although not recorded in full.

[94] In UES (Int’l) Pty Ltd v Harvey 63, a Full Bench of the Commission dealt with circumstances where the criteria for a genuine redundancy in s 389 were not met; the Full Bench concluded as follows:

The terms of s 389 of the FW Act suggest the process for selecting individual employees for redundancy is not relevant to whether a dismissal was a case of genuine redundancy. The relevant Explanatory Memorandum confirms as much. Setting aside jurisdictional pre-requisites and the matters in s 396(a) to (c), FWA only needs to consider s 387(a) concerning whether there was a valid reason for a person’s dismissal related to the person’s capacity or conduct if one or more of the criteria in s 389 of the FW Act, which sets out the meaning of genuine redundancy, have not been met. The criteria in s 389 which have not been met can be taken into account in FWA’s consideration as to whether the dismissal was harsh, unjust or unreasonable as part of s 387(h), being “any other matters that FWA considers relevant. 64

...

As we have earlier indicated, there were sound, defensible and well-founded reasons for Mr Harvey’s dismissal, being that UES no longer required his job to be performed by anyone because of changes in the operational requirements of its enterprise and it was not reasonable in all the circumstances to relevantly redeploy him. We regard such valid reasons as matters relevant to our consideration as to whether Mr Harvey’s dismissal was harsh, unjust or unreasonable. They are matters telling against a conclusion that the dismissal was harsh, unjust or unreasonable. 65

[95] In this case, the reason for Mr Dreja’s dismissal was that his position was no longer required to be filled by any of the Respondent’s employees. While this did not constitute a valid reason for dismissal, I consider nevertheless that this was a redundancy undertaken in the context of changing operational requirements and was a sound and well-founded decision in this respect. Mr Dreja submitted that the redundant position was still required. The Respondent considered that there were duties and responsibilities of the redundant position which remained; however, those duties and responsibilities were subsumed into the new position, which was of greater scope.

[96] However, as observed at paragraphs 52-54, I was not persuaded that the Respondent complied with its obligation under the Award to provide Mr Dreja with written information for the purpose of discussing with him the introduction of the change, its likely effect, and measures to avoid or reduce the adverse effects on him. Despite making this procedural error, I do not consider that Mr Dreja was denied procedural fairness. Mr Dreja was consulted about the instigation of the review, the changes to the management structure in Western Australia, the decision to introduce a new position and make his role redundant, and the process for applying for the new position.

[97] While it is the case that Mr Dreja does not appear to have been informed of the purpose of the meeting on 16 September 2017, I do not consider that this created such unfairness to warrant the dismissal being one that was unfair. Mr Dreja claims he was unable to garner the assistance of a support person for the meeting because he was unaware of the purpose of the meeting. However, in the circumstances, I do not consider that this procedural matter rendered the dismissal unjust, unreasonable or harsh. It was not the case that Mr Dreja faced being dismissed or disciplined in the meeting, but rather, was being consulted about the changes.

[98] Further, while the Respondent required Mr Dreja to apply for the new position, having considered the evidence before me, it did not appear that the new position was a suitable position for Mr Dreja. In this respect, I have considered the evidence of Ms Del Vecchio concerning the answers Mr Dreja gave in the interview, and Mr Dreja’s evidence provided at hearing and in his witness statement. 66

[99] Mr Dreja contended that the Respondent and Ms Del Vecchio had failed in their duty under their own policy of redeployment to support him and transition him into a comparable role, even after Ms. Del Vecchio become aware of his desire to relocate and continue his career with the Respondent. 67 However, the evidence does not support a finding that Mr Dreja made either Ms Del Vecchio, Ms Rajkovic or the Human Resources Advisor aware that he desired to relocate to the Eastern States. The evidence shows that Mr Dreja made the initial enquiry to Ms Rajkovic about the branch manager positions but took no further steps to unequivocally express any interest in the roles.

[100] In respect of the redeployment process, the Respondent had required Mr Dreja to apply for the branch manager positions in the Eastern States. Yet, it was evident that the Redundancy Policy did not contemplate redeployment to locations at such a distance. Therefore, there appeared to be no breach of the Respondent’s Redundancy Policy by requiring Mr Dreja to apply for these particular positions. Further, while Mr Dreja was provided with lists of vacant positions each week, he took no steps to identify suitable roles within the Respondent business and make enquiries about the same. His inaction in this respect has been taken into account.

[101] Mr Dreja had worked for the Respondent for near on six years in various branch manager positions. Whilst Mr Dreja had secured a new role as a mobile lending manager for a financial institution, he gave evidence that the new role was at a lower grade and paid less than his role with the Respondent. I have no doubt that Mr Dreja has not taken the loss of his position as the Branch Manager, Perth, well, and similarly was disappointed that he was unsuccessful for the new position. Further, from Mr Dreja’s oral testimony it would appear that financially the role he has secured with another business does not attract the same fiscal benefits. Inevitably, this has led Mr Dreja to be both disappointed and upset. However, in all of the circumstances, I do not consider that Mr Dreja’s dismissal was harsh.

Conclusion

[102] Having considered each of the matters specified in s 387 and having regard to the obligation to afford a ‘fair go all round’, I am satisfied that, overall, the dismissal of Mr Dreja was not unjust, unreasonable or harsh. In my view, there was no failure to redeploy Mr Dreja - in all the circumstances and while the Respondent did not comply with all obligations concerning consultation under the Award, this does not lead me to the conclusion that the dismissal was unfair.

DEPUTY PRESIDENT

Appearances:

J Dreja, Applicant.

L Saunders of counsel for the Respondent.

C King of DLA Piper instructing.

Hearing details:

2020;

Perth (by video):

2 June.

Printed by authority of the Commonwealth Government Printer

<PR719679>

 1   PR720530.

 2   Witness Statement of Jason Dreja (Dreja Statement) [1].

 3   Ibid [11] – [23].

 4   Ibid, Annexure JD2018.

 5 Ibid [24].

 6   Ibid [25]-[27].

 7 Ibid [28].

 8 Ibid [31].

 9 Ibid [29].

 10 Ibid [30].

 11 Ibid [32].

 12 Ibid [35].

 13 Ibid [36].

 14 Ibid [36].

 15 Del Vecchio Statement [6].

 16 Dreja Statement [37].

 17 Ibid [37].

 18 Del Vecchio Statement [9].

 19 Ibid [12].

 20   Ibid ADV-2.

 21 Ibid [17].

 22 Ibid [17].

 23 Ibid [17].

 24 Ibid [18].

 25 Ibid [18].

 26 Ibid [35].

 27 Dreja Statement [38].

 28 Ibid [38].

 29 Ibid [40].

 30 Ibid [41].

 31   Ibid [44] – [45].

 32 Ibid [48].

 33   Ibid [53] – [55].

 34 Ibid [58].

 35 Ibid [59].

 36 Ibid [67].

 37 Ibid [69].

 38 Ibid [71].

 39   Ibid [70] Annexure JD-14..

 40   Ibid [76] – [78].

 41 Del Vecchio Statement [58].

 42   Fair Work Act 2009 (Cth) s 389(1)(a).

 43   Baker v Roy Morgan[2013] FWC 6694, [22].

 44   Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, 373.

 45   Yitzhak Shachar v Electrical Home Aids Pty Ltd t/a Godfreys[2018] FWC 4892.

 46   Dibb v Federal Commissioner of Taxation (2004) 136 FCR 388, p 404 - 405.

 47   Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1548]; Kekeris v A. Hartrodt Australia Pty Ltd T/A A.Hartrodt[2010] FWA 674.

 48   Ulan Coal Mines Ltd v Howarth (2010) 196 IR 32, [17].

 49   Keiselbach v Amity Group Pty Ltd (unreported, AIRC, Hamilton DP, 9 October 2006) PR973864, [34].

 50   See also UES (Int’l) Pty Ltd v Harvey (2012) 215 IR 263.

 51   Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company (1998) 88 IR 202.

 52   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodaphone Network Pty Ltd [2001] AIRCPR911257 [25].

 53   [2010] FWAFB 7578.

 54 Ibid [26].

 55   Ibid[28].

 56   Ibid[28].

 57   Ulan Coal Mines Ltd v Honeysett[2010] FWAFB 7578, [34].

 58   Alison Bleyerveen v Uniting Mission and Education [2019] FWC 4818.

 59   Ibid.

 60 (2014) 240 IR 130.

 61   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.

 62   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, [73].

 63   [2012[ FWAFB 5241.

 64   Ibid, [27].

 65   Ibid, [47].

 66 Del Vecchio Statement, [28], [41], and [47].

 67 Dreja Witness Statement [118].