Jonathan Mitchell v Santos Ltd T/A Santos

[2021] FWC 2157

[2021] FWC 2157

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jonathan Mitchell
v
Santos Ltd T/A Santos
(U2020/16318)

DEPUTY PRESIDENT BEAUMONT PERTH, 29 APRIL 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Mr Jonathon Mitchell for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth)(the Act). Mr Mitchell was employed by Santos WA Energy Ltd (the Respondent/Santos) as a Service Desk Analyst from November 2018 until his position was made redundant on 9 November 2020. While a redeployment period of two weeks followed the announcement of the redundancy, Mr Mitchell was not redeployed, and his employment subsequently ended on 3 December 2020.

[2] Mr Mitchell contends that his position was not genuinely redundant, that the Respondent had selected him for redundancy based on his performance which he had not been warned about during his employment, and he was not consulted about the initial attempt to redeploy him into an alternative position. The Respondent contends that Mr Mitchell’s dismissal was a genuine redundancy for the purpose of s 389 of the Act, and that his application must therefore be dismissed. Alternatively, it says that Mr Mitchell’s dismissal was not unfair.

[3] The question of whether Mr Mitchell’s dismissal was a case of genuine redundancy is one of the four matters the Commission is obliged to decide before considering the merits of an application. 1 The first is whether Mr Mitchell’s application was made within the 21-day period required by s 394(2) of the Act; this is not in contention. The second, that Mr Mitchell was a person protected from unfair dismissal as he earned less than the high-income threshold and had undertaken the minimum period of employment (see s 382 of the Act). These factors are uncontentious. The third is whether the Respondent was a small business employer; it was not, and therefore no question of compliance with the Small Business Fair Dismissal Code arises. And finally, whether the dismissal was a ‘genuine redundancy,’.

[4] For the reasons that follow, I am of the view that Mr Mitchell’s dismissal was by way of genuine redundancy and therefore his application must be dismissed.

Background

[5] Mr Mitchell commenced working for Quadrant Energy Limited (Quadrant) on 1 November 2016 in the role of Service Desk Analyst, which sits within the Information Systems (IS) business unit within the CFO Division. 2 Quadrant had been acquired by Santos in or around November 2018.3

[6] Mr Mitchell’s role was to support and resolve IT customer support requests from the business and assist with delivering a knowledge centred support methodology. 4

[7] On 14 October 2019, the Respondent announced the acquisition of ConocoPhillips’ (Conoco) operating assets in northern Australia and Timor-Leste known as ABU-West (COP). Ms Rudloff, Senior People Business Partner, gave evidence that following the acquisition announcement, employees were advised that nothing would change until after the transaction was completed. 5

[8] Following the acquisition of the COP assets, each of the divisions in the Respondent underwent restructures to achieve targets of costs and headcount. The IS division was said to be the last department to be restructured in the final quarter of 2020. 6

[9] Ms Rudloff explained the impetus around the restructure of the IS division. She gave evidence that in 2018 the Respondent had transitioned from a direct supplier of IS services to the business, to a broker of IS commodity services. 7 Infrastructure and application services were handed over to a vendor, TATA Consulting Services (TATA). Ms Rudloff said that the outsourcing model changed the way in which the Respondent delivered IT to its internal customers.8 The business adopted a more self-help approach to support its low cost model where, if the ‘end user’ had an IT issue, they could either search through the knowledge base centre to resolve the problem, or they could use the ‘chat service’ to message a Service Desk Analyst for assistance. This was quite different, according to Ms Rudloff, to the Conoco IT operation model, which largely operated with an in-house IT team, with a majority of its IT systems coming from its corporate HQ in Houston and supported locally by the ABU West team.9

[10] In short, for the Respondent, this meant that the resourcing requirements within the IT division would change given some of the work would go to TATA, resulting in the requirement for fewer staff. 10

[11] Ms Rudloff said that the Information Systems Leadership Team (ISLT) was responsible for the reorganisation of the teams within the IS division. The ISLT identified open and closed roles in the division, prepared selection matrices and held selection panels required to identify successful candidates and those employees who would be displaced. 11 The final proposed structure involved a reduction of roles from 130 to 110 roles in the IS Division.12

[12] The ISLT identified the pool of IS employees available for the remaining positions. According to Ms Rudloff, the ISLT assessed the critical competencies of each of those employees in relation to the needs and requirements of the relevant roles. The ISLT reviewed each individual’s ability to fulfil the role requirements now and in the foreseeable future. Ms Rudloff expressed that career profiles and performance data were used where available to assist in selection panels. This resulted in an identification and assessment of the proficiencies of each employee against their peers according to a selection matrix. 13

[13] It was Ms Rudloff’s evidence that the Respondent used a selection matrix when multiple people were being considered for a reduced number of roles. The criteria in that matrix included the following: (a) Values – overall demonstration of Santos values; (b) Performance – good performer makes a valued contribution at existing level; (c) Potential – has the potential to develop further and progress within the company; (d) Role Requirements – can fulfil requirements of the role now and in the foreseeable future; (e) Knowledge – has specific and or unique knowledge to be maintained; (f) Technical Capability – demonstrates the required skills to fulfil the current role priorities and future business requirements; and (g) Change orientation – can proactively respond to a changing organisation.

[14] The ISLT considered whether there were any vacant positions into which employees facing redundancy, including the Applicant, could be redeployed. 14 In its decision meeting, the ISLT considered each employee’s CV and their skills that could transfer to a new role.

[15] Ms Rudloff said that to assist the selection decisions, each IS Leader had a one-on-one with each member of the IT team in order to discuss their goals, experience and career aspirations. 15 Ms Rudloff referred to Mr Mitchell having attended one of these meetings on 6 October 2020 with Ms Sarah Barrera and Mr Alistair Cameron, who were considered his line managers.16

[16] Ms Rudloff gave evidence that on 21 October 2020, she met with Mr Van den Brink, IS Manager Common Services, and reviewed the Common Services Organisational Design to finalise outputs of his selection matrix decisions. This, said Ms Rudloff, was an opportunity to ensure selection matrices had been completed for each open role using complete candidate pools. Mr Van den Brink was responsible for the End User Computing Team; which Mr Mitchell was considered for. Ms Rudloff said the meeting included a discussion around initial redeployment of those individuals who were unlikely to be successful in the selection matrix and initial redeployment exploration across the function to ensure that the Respondent had the right conversation (i.e., redeployment or redundancy).

[17] Ms Rudloff said that there were around 44 ex-Conoco employees in the IT team and Santos retained around half of them in the new organisational structure. It was Ms Rudloff’s account that there were seven ex-Conoco employees and four former Quadrant employees that were in roles similar to Mr Mitchell. Out of the 11 employees, only six were required, meaning that five roles were no longer required to be performed. 17

[18] In the case of the IS division restructure, Ms Rudloff explained that the ISLT considered whether there were any vacant positions that employees facing redundancy could be considered for within its division – noting that all vacant positions were known to the ISLT. Ms Rudloff said that it was determined that Mr Mitchell would be displaced and thereafter ISLT considered whether he could be redeployed into a vacant role. However, based on the ISLT analysis, the Respondent ultimately decided that Mr Mitchell did not have the skills and experience for any of the available roles.

[19] Insofar as consultation was undertaken, Ms Rudloff spoke of a communication process that had involved the one-on-one career conversations in addition to multiple communications from the Chief Executive Officer, and regular meetings between employees and their team leaders. 18

[20] Ms Ho, HR Business Partner, gave evidence that on 19 November 2020, she was present when Ms Walker, IS Manager Offshore, called Mr Mitchell on her mobile phone and asked him to attend that meeting that day. 19 At that meeting Mr Mitchell was notified about the review of the organisational structure the Respondent had undertaken after its acquisition of COP, and that the Respondent had identified his role was no longer required.

[21] It was Ms Ho’s evidence that Mr Mitchell appeared to be initially shocked, and he asked for the paperwork and indicated that he did not want to go through with the conversation. 20 However, it appears that Mr Mitchell agreed to stay, and Ms Walker was said to have informed him that there was a redeployment process, he was asked to participate in the same, and then Ms Ho stepped Mr Mitchell through a pack of documents.21 Ms Ho said that she reiterated to Mr Mitchell that if he was unsuccessful with the redeployment process then his employment with the Respondent would end on 3 December 2020.

[22] Ms Ho also said that she stepped Mr Mitchell through a deed of settlement, making it clear to him that he needed to read it after the meeting and if he had any questions or concerns, he could seek independent advice. 22 Ms Ho said that she clarified that he was not required to sign it on the day, but if he wanted to receive the Respondent’s enhanced redundancy package, he had to sign the deed and return it to the Respondent by 3 December 2021.23

[23] Ms Ho said that Mr Mitchell asked why he had been chosen and whether the decision was performance based. 24 Ms Walker was said to have responded that the Respondent had reviewed the whole IS division as part of the restructure and a selection process had been undertaken. While performance was part of the selection criteria, Ms Ho said that Ms Walker explained to Mr Mitchell that it was all of the selection criteria that the Respondent looked at. According to Ms Ho, Mr Mitchell questioned again why he had been selected, and the selection criteria were again referred to as was the lack of roles for everyone.25

[24] No available and appropriate roles were identified within the Applicant’s known area of experience, qualifications and skill set. 26 Mr Mitchell’s employment ended on 3 December 2020. The evidence given was that he did not respond to an email from a resourcing advisor that had proffered assistance during the redeployment period concerning alternative roles.

Submissions of the parties

[25] The Respondent submitted that the scope of the dispute had been reduced by the submissions made by Mr Mitchell in reply. In his reply submissions, Mr Mitchell acknowledged first, he did not take issue with the Respondent’s contention that it no longer required his job be performed due to operational reasons and second, there was no obligation to consult him about the redundancy of his position under any modern award or enterprise agreement. It followed that the contentious issue was that of redeployment.

[26] According to the Respondent, its evidence established that there were no roles within it or its related entities that were suited to Mr Mitchell’s skills, experience and qualifications. Further, despite Mr Mitchell’s criticism of the redeployment process, the evidence showed that Mr Mitchell refused entirely to engage with the redeployment process after he was notified of the redundancy, by not responding to the recruiter’s email and in effect maintaining ‘radio silence’ until 3 December 2020. Furthermore, and to the extent that s 387 of the Act proved relevant, the Respondent noted that given Mr Mitchell had acceded that his position was no longer required, it was the case that there was a valid reason for dismissal.

[27] In contrast, Mr Mitchell claims that the Respondent did not fully explore redeployment opportunities and that he did not appreciate the significance of the meeting held on 6 October 2020. Regarding his selection for redeployment, Mr Mitchell pressed that throughout his employment his performance had not been raised as an issue, and as such he was never warned about the same or given the opportunity to respond to the issue. It therefore followed that there was neither a genuine redundancy nor a valid reason for his dismissal and in all of the circumstances it could be said he had been unfairly dismissed.

Consideration

[28] Under s 385 of the Act, a dismissal cannot be unfair if it was a case of ‘genuine redundancy’, which is defined in s 389 as follows:

(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.

[29] Based on Ms Rudloff’s evidence, which I accept, I find that the Respondent no longer required Mr Mitchell’s job to be performed by anyone because of changes in its operational requirements. It was uncontentious that the Respondent had acquired COP and as a consequence sought to restructure its business in light of the amalgamation of two workforces. The amalgamation gave rise to an excess of employees for positions within the newly formed organisational structure. In the IS division the Respondent had identified 20 roles that were excess to requirements. 27

[30] In the section in which Mr Mitchell worked, only six out of the 11 employees were required, meaning that five roles were no longer required to be performed. 28 Albeit Mr Mitchell took issue with the figures being correct noting that they were one out. Notwithstanding, Mr Mitchell gave evidence that he was the only person in his team who was made redundant.29 However, during cross examination it was proposed that his statement was incorrect. Mr Mitchell qualified his answer to note that he was the only former Quadrant employee whose position had been made redundant.

[31] Insofar as consultation was concerned, both parties agreed that there was no such obligation given that an enterprise agreement did not apply to Mr Mitchell in his employment, and he was not covered by an award.

[32] When asked whether Mr Mitchell challenged his selection for redeployment compared to those employees that retained positions, Mr Mitchell’s representative confirmed that he did not. However, Mr Mitchell asserted that the Respondent had failed to properly consider the question of redeploying Mr Mitchell in its enterprise.

[33] In Ulan Coal Mines Ltd v Honeysett 30 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.31

[34] Whether it would have been reasonable to redeploy the employee is anchored to the point of time of the dismissal. 32 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.33

[35] 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.

[36] Ms Rudloff gave evidence that the Respondent’s usual practice, when apparent that a position is to be made redundant, is to consider options for redeployment of the affected person. The ISLT, having decided on the new structure for the IS division, considered whether there was a vacant position that an employee facing redundancy could be considered for. Ms Rudloff said that in doing so, the ISLT considered each employee’s curriculum vitae and skills that they could transfer to a new role. Further, each IS Leader had a one-on-one conversation with each member of the IT team in order to discuss their goals, experience and career aspirations. 34

[37] It was evident from Mr Mitchell’s account that he was aggrieved that the significance of the one-on-one conversation was not explained to him at the time it was held. In this respect he asserted that there were two phases to the Respondent’s redeployment phase. The first, a genuine consideration of his suitability for redeployment in respect to positions which Mr Mitchell was qualified for. The second, which commenced on 19 November 2020, was the official redeployment period. At this time, said Mr Mitchell, the Respondent knew that the vacant jobs were unsuitable for him.

[38] Concerning the first phase, Mr Mitchell pressed that insofar as the Respondent’s consideration of him for redeployment was concerned, he had no input or discussion about the positions he was considered for in the new structure. While not urging a submission that consultation was compulsory, Mr Mitchell maintained that it was not good enough that he was not involved in the first phase of the Respondent’s redeployment process and as such it had occurred in a vacuum.

[39] Relevant to my consideration is whether there were was a suitable job or position to which Mr Mitchell could have been redeployed and then whether such redeployment was reasonable in the circumstances. The Respondent provided a spreadsheet of positions which were available at the time of dismissal. Evidence was given that information on the spreadsheet had been extracted from the Respondent’s computer system and that at the relevant time all vacant positions were on the computer system. Further, Mr Mitchell had similarly been provided with a list of available internal roles across the Respondent and its associated entities.

[40] It is open to find that none of the positions identified were suitable for Mr Mitchell and that Mr Mitchell had made the same assessment. At the start of the redeployment process Mr Mitchell was contacted by the Respondent’s recruiter and was asked to participate in the redeployment process by engaging with the recruiter. Mr Mitchell confirmed that he did not respond to the recruiter’s email and did not apply for any of the vacant positions. When it was suggested to Mr Mitchell that none of the available roles were suitable in light of his qualifications, skills and experiences, Mr Mitchell expressed that this was correct.

[41] Generally, s 389(2) does not require an employer to redeploy an employee to any vacant position. 35 An essential part of the concept of redeployment under s 389 is that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. The job, however, must be suitable and the employee should have the skills and competence required to perform it either immediately or with a reasonable period of retraining.36 Having considered the evidence, I accept the evidence of the Respondent that there were no suitable positions in which to place Mr Mitchell.

[42] Mr Mitchell asked the question of Ms Rudloff in cross examination as to whether he was provided the opportunity to provide input into the specific positions that were created or remained as consequence of the IS division restructure. Specifically, whether the positions in the new organisational structure were shared with him. The evidence given was that those positions were not shared with him albeit he was considered for them. Section 398(2) of the Act, however, does not place upon the Respondent a positive obligation to share with an affected employee the positions established or left remaining after a restructure of the organisation.

[43] Mr Mitchell appeared upset that he had not been selected for retention in the Respondent’s new organisational structure and grappled with the feedback that his performance had somehow contributed to the decision to redeploy him. To this extent, submissions were made that Mr Mitchell had never been alerted or otherwise warned that his performance was an issue.

[44] The Respondent submitted that it did not consider Mr Mitchell was underperforming, however when his performance was compared to that of his counterparts he did not rate as highly. Furthermore, Ms Rudloff gave evidence that performance was only one factor that was considered in the decision concerning which employees to retain and which to redeploy. She detailed in her evidence that selection decisions were based on multiple criteria. Those criteria are set out at paragraph [13] of this decision. While Mr Mitchell confirmed that he did not challenge the ‘Selection Matrix’ 37 or use of the same, essentially, he did appear to be challenging the process by which he was chosen for redeployment.

[45] It is accepted that the terms of s 389 suggest the process for selecting individual employees for redundancy is not relevant to whether a dismissal was a case of genuine redundancy. 38 Submissions advanced on behalf of Mr Mitchell were couched in terms of a consideration of ‘reasonableness’, such that – logically, reasonableness could not be said to occur in a vacuum. While the submission that the assessment of reasonableness could not be said to occur in a vacuum, Mr Mitchell spoke of the ‘first phase’ of the redeployment process and not having been afforded the opportunity to provide input into same. The ‘first phase’ saw the Respondent settle its organisational structure and identify those employees who were excess to requirements. To identify the employees who were excess to requirements, selection decisions were made based on set criteria.39 I am of the view that fundamentally Mr Mitchell was disputing his selection.

[46] It is open on the evidence to find that the Respondent had restructured its business and as result positions in the IS division had been made redundant. The Respondent had turned its mind to whether there were any suitable and available roles into which Mr Mitchell could have been redeployed. There is appropriate evidence which shows that there were no such available roles or work based on Mr Mitchell’s skills, experience and qualifications. While the Respondent took issue with Mr Mitchell’s lack of engagement in the redeployment process, largely his lassitude arose because of his cognisance that there were no suitable positions available.

[47] I therefore find, on the balance of probabilities, that there was no job or a position or other work within the Respondent’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy Mr Mitchell. Further, it would not have been reasonable in all the circumstances for Mr Mitchell to have been redeployed into a vacant position for which he had shown no interest.

Conclusion

[48] I have determined that the dismissal of Mr Mitchell was by way of genuine redundancy. His application for relief from unfair dismissal is therefore dismissed. An order dismissing the application will be issued concurrently. 40

DEPUTY PRESIDENT

Appearances:

Mr. Jonathon Mitchell, the Applicant;
Mr. Patrick Mullally, for the Applicant;
Mr. Giacomo Giorgi, for the Respondent;
Ms. Ansel Rens, for the Respondent;
Ms. Alice Trethewey, for the Respondent.

Hearing details:

Perth (video)
2021
April 20

Printed by authority of the Commonwealth Government Printer

<PR728786>

 1   Fair Work Act 2009 (Cth) (the Act) s 396.

 2   Witness Statement of Melanie Jane Lamshed Rudloff (Rudloff Statement) [6].

 3   Ibid.

 4 Ibid [7].

 5 Ibid [10].

 6 Ibid [20].

 7 Ibid [21].

 8   Ibid.

 9 Ibid [22].

 10   Ibid.

 11 Ibid [23].

 12 Ibid [24].

 13 Ibid [27].

 14   Ibid [38] – [39].

 15 Ibid [25].

 16   Ibid.

 17 Ibid [31].

 18 Ibid [41].

 19   Witness Statement of Thu Nguyen Ho (Ho Statement) [15].

 20 Ibid [15].

 21   Ibid [19] – [20].

 22 Ibid [25].

 23 Ibid [26].

 24 Ibid [30].

 25 Ibid [34].

 26   Rudloff Statement [36], [40].

 27 Ibid [24].

 28 Ibid [31].

 29   Ibid.

 30   [2010] FWAFB 7578.

 31 Ibid [26].

 32   Ibid[28].

 33   Ibid[28].

 34 Rudloff statement [36].

 35   Ventyx Pty Ltd v Murray[2014] FWCFB 2143 [159].

 36   Ulan Coal Mines Ltd v Honeysett (2010) 199 IR 363 [34].

 37 Rudloff Statement [26].

 38   UES Int’l Pty Ltd v Harvey [2012] 215 IR 263; [2012] FWAFB 5241.

 39 Rudloff Statement [26].

 40   PR729063.