Jeffory Asselin v Murdoch University
[2022] FWC 3362
•22 DECEMBER 2022
| [2022] FWC 3362 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jeffory Asselin
v
Murdoch University
(U2022/3081)
| COMMISSIONER SCHNEIDER | PERTH, 22 DECEMBER 2022 |
Unfair dismissal – Jurisdictional Objection upheld – Genuine Redundancy.
On 14 March 2022, Mr Jeffory Asselin (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Murdoch University (the Respondent).
The Respondent objects to the application on the ground that the dismissal was a case of genuine redundancy.
A Hearing of the matter was held. At the Hearing, the Applicant gave evidence on his own behalf and called Mr Paul Dawson (Mr Dawson), a former colleague, to give evidence. Mr Daniel Duncan (Mr Duncan), Senior Employee Relations Consultant at the Respondnet, gave evidence on behalf of the Respondent.
This decision considers the Respondent’s objection. In summary, I have found that the Applicant’s dismissal was a case of genuine redundancy, consequently, no remedy can be granted and the application must be dismissed.
Legislation
Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.
The definition of the genuine redundancy can be located in section 389 of the Act, which reads:
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.
The Respondent bears the evidentiary onus to demonstrate the factual elements of the jurisdictional objection in this case, [1] the first of which is whether there were changes in its operational requirements necessitating the redundancy of the Applicant.
Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed. Accordingly, the Commission must first consider whether the Applicant’s dismissal was a case of genuine redundancy.
Background
The uncontested factual background to the matter is as follows:
· The Applicant commenced his employment with the Respondent in March 2003. During his tenure of employment, the Applicant held several positions including, Media Producer, Learning Innovations Officer, Manager Media Producer as well as a variety of other positions with the Respondent.
· The Applicant’s position at the time of his redundancy was Media Producer.
· The terms and conditions of the Applicant’s employment were governed by the Murdoch University Enterprise Agreement 2018 (the Agreement). The Agreement contains clauses relevant to major change, consultation, and redundancy procedures.
· During 2021, the Respondent conducted an organisational restructure.
· As a result of the organisational restructure, the business commenced a consultation process with impacted employees confirming that a decision had been to make changes to the structure and organisation of the enterprise.
· The Applicant was advised of the impact on his position on 7 September 2021 and a consultation period commenced.
· The Applicant then had a period of extended personal leave from September 2021.
· The Applicant was terminated on 25 February 2022 following a redeployment period.
Jurisdictional Objection – Genuine Redundancy
Applicant Submissions and Evidence
The Applicant relied on three main arguments to support the position that his redundancy was not genuine and that he had been unfairly dismissed by the Respondent. Firstly, that his key duties were still being performed by others. Second, that the interpersonal issues with his manager had contributed to the Applicant being selected for redundancy. Finally, that the Respondent had not genuinely attempted to redeploy him.
The Applicant, immediately prior to his position being made redundant, had been employed as a Media Producer and was engaged as a Level 8 under the relevant enterprise agreement. The Applicant submitted that the Respondent had previously created the position of Media Developer, which was a more junior position and paid at a lower rate under the relevant enterprise agreement prior to his position being made redundant. The Applicant submitted that this more junior position was created as a means of redistributing his key duties. The Applicant therefore submits that, as his previous duties are still being performed or still required, his position was not in fact redundant.
The Applicant submitted that, during his final years with the Respondent, he had reported to Mr Mike Fardon (Mr Fardon). The Applicant outlined that he and Mr Fardon had both applied for the same managerial position previously and that there was a competitive tension between the Applicant and Mr Fardon. The Applicant submitted that Mr Fardon, upon becoming his manager, sought to undermine the Applicant and his skill set within the Respondent’s business operations. The Applicant submitted that his personal and political views were also a reason for him being made redundant. The Applicant provided evidence in support of the strained relationship between him and Mr Fardon. Mr Dawson provided evidence in support of the Applicant and in support of the Applicant’s allegations in relation to his relationship with Mr Fardon.
The Applicant submitted that the Respondent had not provided genuine consideration about his ability to be redeployed with the Respondent’s business. The Applicant submitted that, during his employment with the Respondent, he had taken part in several restructuring processes during which he was directly redeployed by the Respondent into new and specialised roles that matched his experience. The Applicant submits that, as the Respondent did not take that approach in this process, there was no genuine attempt to redeploy him. The Applicant further submitted that the Respondent was blind to his broad skillset which incorrectly limited its assessment of his redeployment opportunities.
The Applicant cited an articled from 2019 which referenced the Respondent’s financial position, noting that it was thriving, as support for the position that the Respondent did not need to make his position redundant due to a downturn.
Respondent Submissions and Evidence
The Respondent submits that the dismissal was a case of a genuine redundancy for the following reasons:
· The Applicant’s position no longer exists.
· The Respondent admits that some of the duties previously performed by the Applicant have been redistributed to other employees of the Respondent.
· The Respondent complied with the obligation to consult with the Applicant under the enterprise agreement. The Applicant was provided the opportunity to provide feedback and suggestions for the Respondent to consider prior to finalising the organisational restructure.
· The Respondent made a genuine attempt to redeploy the Applicant within their business.
The Respondent submitted that it had experienced a downturn due to the pandemic. In attempt to recover and adjust, the Respondent opted to save costs by reducing salary expenditure through a restructure. The Respondent has undertaken several organisational wide changes to reduce costs including the redundancy process the Applicant was subject to. The Respondent notes that the evidence relied upon by the Applicant in opposition to the financial downturn was published prior to the pandemic and therefore does not encapsulate the impact the pandemic had on the Respondent’s financial position.
The Respondent noted that the re-allocation of duties to lower classified workers was done to help reduce salary expenditure in assistance of its adjustment to the downturn, leading to the redundancy of higher classified positions. The Respondent submits that this reallocation of some of the former duties of the Applicant does not support the position that his job is not redundant. The Respondent noted that several duties, including significant elements of the job, of the Applicant were eliminated entirely due to changes in the Respondent’s method of delivery of its services.
Mr Duncan was emphatic in his denial of the Applicant’s assertion that Mr Fardon had sought to make the Applicant redundant. Mr Duncan gave evidence that Mr Fardon was not the ultimate decision maker who concluded that the Applicant would be made redundant.
The Applicant’s employment was subject to the terms and conditions of the Agreement. The Respondent submitted that, at all times, it followed requirements of the enterprise agreement and communicated and consulted with the impacted staff as required in the Agreement. The Respondent provided a table which outlined all relevant clauses of the Agreement and provided examples of its compliance with the procedures in the case of the Applicant’s redundancy.
The Respondent notified the Applicant of his redundancy and immediately commenced a consultation period. Following this period, the Respondent commenced a redeployment period. However, due to the Applicant’s leave, the redeployment period was extended. The Applicant was encouraged by the Respondent to participate in the initial redeployment period, due to more positions being available at that time, but the Applicant did not provide his resume until later.
At the time the Applicant was made redundant, the following positions were available within the Respondent’s business:
· Senior Coordinator, Curriculum Information and Systems
· Service Desk Senior Analyst
· Team Leader, Completion and Graduations
· Team Leader, Enrolments and Progress
· Associate Lecturer University Preparation Pathways
· Anatomy Laboratory Technician
The Respondent notes that the Applicant was requested to provide his resume and expression of interest in available positions. The Respondent submits that the Applicant did not express specific interest in any of the positions available at the time of his redundancy. The Applicant instead stated he did not consent to taking a position of lower grade or a position that did not cater to his experience. The Respondent submits that the Applicant was insistent on a position being created for him and that it had no obligation to do so.
As a result of the Applicant’s disinterest in the available positions, the Respondent submits that it assessed his redeployment options and determined that none of the available positions were suitable.
Consideration
Under section 389 of the Act, a person’s dismissal was a case of genuine redundancy if:
(a) the 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.
A genuine redundancy consists of three elements:
a) the person’s job was no longer required due to changes in operational requirements;[2]
b) the employer consulted the person about the redundancy, if required by a modern award or enterprise agreement;[3] and
c) it would not have been reasonable to redeploy the person in the employer’s enterprise or that of its associated entity.[4]
Role no longer required due to Changes in operational requirements – s. 389(1)(a)
When discerning whether a job was no longer required to be performed by anyone because of changes in operational requirements, the Full Bench has stated that the Commission must make findings of fact on whether:
a)the employer has made the decision that the relevant employee’s job is no longer required to be performed by anyone; and
b)whether that decision was made because of changes in the operational requirements of the enterprise.[5]
Regarding the issue of whether a job is still being performed, the Commission has stated:
“It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:
“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)
This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.” [6]
On the evidence before me, I am satisfied that the Respondent suffered a downturn in business due to the COVID-19 pandemic and as a result made the decision that the Applicant’s position of Media Producer was no longer required by the Respondent’s business and the position of Media Producer was made redundant. The Respondent has been forthcoming in admitting that it implemented a redundancy processes and reallocated duties amongst workers to reduce salary expenditure as part of a wider organisational change in reaction to the impact of pandemic on the business.
The decision of the Respondent, to restructure and reorganise the operations making a position redundant but reallocating certain duties of that position throughout other positions is not uncommon. The Commission has found previously that an employer such as the Respondent is still able to have key duties of the redundant position performed by another employee or employees and this does not cause the redundancy to not be genuine. There are circumstances where reallocation of duties may be done in such a way that renders a redundancy ingenuine,[7] but on the evidence before me I do not see such circumstances in this matter.
The role and tasks of the more junior employee were similar to that of the Applicant and had been for years prior to his selection for redundancy. Further, it is clear that the Applicant’s tasks were not solely or substantially redistributed to that single junior employee. On the evidence, it is apparent that many of the tasks undertaken by the Applicant are now preformed by managerial staff and staff in other departments of the Respondent. I am not satisfied that the more junior role was created to absorb the Applicant’s role and note that the position was created in 2018, well before the circumstances leading to the redundancy arose.
The Applicant in his submissions alleged that his working relationship with Mr Fardon (his direct manager) was a key factor in his being made redundant by the Respondent. Whilst I appreciate that Mr Dawson could comment in relation to the interaction he witnessed between the Applicant and Mr Fardon in previous years, his evidence was limited to historical interactions prior to the redundancy process. Mr Dawson was no longer employed by the Respondent when the Applicant was made redundant. As a result, Mr Dawson’s evidence could not substantially support the Applicant’s allegation that the Mr Fardon and the Respondent had targeted the Applicant for redundancy due to the interpersonal issues.
The Applicant has a belief that the Respondent made a targeted decision to make him redundant. It is not uncommon for an individual employee who has been made redundant to feel or believe they were personally targeted for a redundancy. Whilst I am sympathetic to the Applicant believing this to be the case and do not doubt that there was tension between himself and Mr Fardon, I do not accept that this influenced the Respondent’s redundancy process. The role undertaken by the Applicant was of a higher classification and his duties, being those duties that remained after other internal changes, could be redistributed to lower classified employees and other teams within the organisation. It follows that the Respondent would find it commercially appropriate to eliminate such a role in the restructure. I accept the evidence of the Respondent that Mr Fardon was not the primary or final decision maker in the Applicant’s redundancy. I am not satisfied that any link between the interpersonal issues and the redundancy exists.
Compliance with obligations under any applicable instrument - s. 389(1)(b)
I am satisfied that the Respondent complied with the obligations conferred on it in the Agreement as relevant to the Applicant. The Respondent has provided, in clear detail, the action taken in compliance with all relevant clauses of the Agreement. I am not inclined to believe the Applicant’s submissions that the Respondent had further legal obligations regarding his redundancy that it did not follow.
Redeployment Opportunities – s. 389(2)
Whether the Respondent genuinely attempted to redeploy the Applicant is a point of great contention between the parties.
In Ulan Coal Mines Ltd v Honeysett, the Full Bench observed that section 389(2) of the Act placed a limitation on an employer’s capacity to mount the defence that the dismissal was a case of a genuine redundancy.[8] It expressed that the defence was not available, if it would have been reasonable to redeploy the employee; this is a question answerable only by reference to all the relevant circumstances.[9]
Whether it would have been reasonable to redeploy the employee is anchored to the point of time of the dismissal.[10] 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.[11] 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.[12]
The Applicant asserts that the Respondent did not, as it had several times before, directly redeploy him into a new position that catered to his experience. It is understandable that the Applicant could have come to expect this and in turn become disappointed that it had not occurred in this redundancy process. However, the Respondent is not required to create a new position for redeployment. It is clear that the Respondent was attempting to reduce salary costs in response to the downturn through the restructure, not simply restructuring for some other purpose or operational change that would give rise to a similar or reimagined position being created.
The Respondent encouraged the Applicant to actively participate in the redeployment process. Although he provided his resume, the Applicant did not otherwise engage in the expression of interest process and instead voiced that he did not wish to be redeployed into a lower and less specialised position.
The Respondent also assessed the Applicant’s suitably against the positions available and found that none were viable options. I accept this submission. The Respondent submits that the Applicant’s experience was specialised to his field and therefore the positions available were not appropriate. The Applicant asserts that his experience is broad. I agree that the Applicant has skills which would be transferrable to roles in which the tasks are not solely media production related. However, the roles available required other specialised skills and the Applicant had expressly stated his dissatisfaction with the options presented to him.
Based on the information available, the Respondent determined that there were not suitable redeployment opportunities for the Applicant within the Respondent’s business. On the evidence before me, it is clear the Respondent attempted to redeploy the Applicant and, in all the circumstances, it was not reasonable to redeploy the Applicant.
Conclusion
Having considered the submissions of the parties, evidence submitted, evidence at the Hearing, and the considerations contained in the Act I am satisfied that the Respondent’s jurisdictional objection should be upheld.
Being satisfied that the Applicant’s dismissal was a case of genuine redundancy, the application must be dismissed and an Order to that effect has been issued.[13]
COMMISSIONER
Appearances:
J Asselin, Applicant.
J Hill, Respondent.
Hearing details:
2022.
Perth:
August 23.
[1] (2014) 244 IR 252, 262–3 [27] – [29], 265–6 [32].
[2] Fair Work Act 2009 (Cth) s 389(1)(a).
[3] Ibid s 389(1)(b).
[4] Ibid s 389(2).
[5] [2016] FWCFB 7202, [14].
[6] [2010] FWAFB 3488, [15].
[7] [2012] FWA 9662; [2012] FWA 2445; [1997] FCA 1081.
[8] (2010) 199 IR 363, 370 [26].
[9] Ibid.
[10] Ibid [28].
[11] Ibid.
[12] [2022] FWC 1831.
[13] [PR749229].
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