Karen Tan v Australian Broadcasting Corporation

[2016] FWC 9

[2016] FWC 9 [Note: An appeal pursuant to s.604 (C2016/2391) was lodged against this decision - refer to Full Bench decision dated 10 May 2016 [[2016] FWCFB 2814] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karen Tan
v
Australian Broadcasting Corporation
(U2015/9518)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 11 JANUARY 2016

Application for relief from unfair dismissal – genuine redundancy – jurisdictional objection upheld – application dismissed.

[1] Ms Karen Tan has applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against her former employer, the Australian Broadcasting Corporation (the ABC).

The hearing

[2] This matter was heard on 13 October, 14 October and 25 November 2015. At the hearing, Ms Tan represented herself. Before the hearing, I granted permission for the ABC to be legally represented. 1 Mr Shariff of counsel appeared with Mr Jolly, solicitor, for the ABC.

[3] Ms Tan tendered:

● her outline of submissions on jurisdictional issues; 2

● her outline of submissions on the merits of her application; 3

● her response to the witness statement of Donald Lange dated 7 September 2015; 4

● her response to the second witness statement of Donald Lange dated 2 October 2015; 5

● her response to the second witness statement of Alan Sunderland dated 2 October 2015; 6

● her response to the witness statement of Craig McMurtrie dated 14 September 2015; 7

● her response to the witness statements of Michael Carey dated 4 September 2015 and 2 October 2015; 8

● her Form F2 application for unfair dismissal remedy as amended on 29 July 2015; 9 and

● a written copy of her opening address. 10

[4] The ABC tendered:

● a marked-up version of Ms Tan’s written material; 11

● the witness statement of Alan Sunderland dated 7 September 2015; 12

● the witness statement of Alan Sunderland dated 2 October 2015; 13

● the witness statement of Craig McMurtrie dated 14 Sept 2015; 14

● the witness statement of Craig McMurtrie dated 7 Oct 2015; 15

● the witness statement of Donald Lange dated 7 Sept 2015; 16

● the witness statement of Donald Lange dated 8 Oct 2015; 17

● the affidavit of Donald Lange dated 9 Oct 2015; 18

● the witness statement of Sophie Watson dated 11 Sept 2015; 19

● the witness statement of Sophie Watson dated 2 Oct 2015; 20

● the affidavit of Sophie Watson dated 8 Oct 2015; 21

● the witness statement of Michael Carey dated 4 Sept 2015; 22

● the witness statement of Michael Carey dated 2 Oct 2015; 23

● the witness statement of Shane McLeod dated 14 Sept 2015; 24 and

● the witness statement of Shane McLeod dated 2 Oct 2015. 25

[5] Ms Tan, Mr Sunderland, Mr McMurtrie, Mr Lange, Ms Watson, Mr Carey and Mr McLeod were all called to give evidence and were all cross-examined.

The facts

[6] I do not propose to summarise all the very extensive evidence tendered during the proceedings. The following reflects my findings of fact based on that evidence.

[7] Ms Tan started working for the ABC on a casual basis in 2008. She became a permanent part-time employee of the ABC’s News Division in September 2013. Her contract of employment described the position as ‘content maker’. 26 While it stated that Ms Tan would be ‘assigned to the position of Producer’,27 it also stated that she might be required to ‘perform a broader range of functions and/or move between functions and work areas’.28

[8] In this permanent part-time position, Ms Tan initially worked two weekdays on the Newsgathering Desk and the weekend in the Sydney Newsroom, a total of four shifts. In July 2014, she expressed dissatisfaction with the nature of the work she was required to perform on the Newsgathering Desk. Mr McMurtrie, then Head of Newsgathering, subsequently arranged for her to work all four shifts in the Sydney Newsroom, initially on a trial basis. 29 This arrangement became permanent (i.e. was no longer a trial) at least from 19 September 2014, when Ms Tan’s MEAA representative wrote to Mr McMurtrie to indicate their understanding that this was the case, and Mr McMurtrie accepted this.30

[9] In the Sydney Newsroom, most employees would be assigned to perform various different roles over the course of a roster period. 31 Thus, while Ms Tan was more often rostered on for production shifts, she was also rostered on for reporting shifts from time to time.

[10] On 24 November 2014, the ABC announced its intention to restructure, precipitated by a significant reduction in the funding it would be receiving from the federal government, but also aimed at increasing the ABC’s focus on digital media platforms (the restructure announcement). 32

[11] From November 2014 to February 2015, the ABC extensively consulted with relevant unions in relation to the proposed restructure, including the Media, Entertainment and Arts Alliance (MEAA), of which Ms Tan was a member. 33 Employees had the opportunity to request individual meetings to discuss the impact of the restructure announcement and/or email their concerns and queries to management. Ms Tan did not take this opportunity.34

[12] Relevantly to this matter, the ABC identified a number of positions to be made redundant in the News Division. To effect these redundancies, it divided the Division into selection pools, each comprising employees classified in the same or similar bands and who performed similar duties. 35 Each selection pool was to be reduced by a certain number of employees. Employees were to be selected for potential redundancy through assessment against a skills matrix.

[13] Ms Tan was placed into the Band 5 Reporter/Producer selection pool for the Sydney Newsroom and advised of this. 36 That selection pool comprised six employees and was to be reduced by two. Mr Lange, NSW News Editor and Ms Tan’s supervisor at the time, conducted the skills matrix assessment for that selection pool. Mr Lange then discussed the assessment with Mr McMurtrie and the outcome was finalised, being that Ms Tan and one other employee in that selection pool were selected for potential redundancy.37

[14] On 17 December 2014, Mr Lange emailed Ms Tan to request a telephone discussion regarding the outcome of the skills matrix assessment. Ms Tan did not respond directly. Instead, her MEAA representative emailed the ABC’s Head of Policy, Communications and Planning, ABC People, later that day to advise that Ms Tan did not wish to accept immediate redundancy. 38

[15] The ABC paused the implementation of redundancies in relation to certain employees, including Ms Tan, while the consultation process continued with the relevant unions. On 21 February 2015, the ABC sent Ms Tan a letter (the First Choice Letter). This letter stated that Ms Tan was redundant from 2 March 2015 and had the option of electing either immediate retrenchment or exploring redeployment and retraining. 39

[16] On 3 March 2015, Ms Tan requested that a dispute regarding her employment at the ABC (lodged by the MEAA quite some time prior to the restructure announcement) be relisted for a conference before the Fair Work Commission (the Commission). 40 While the original dispute obviously did not relate to Ms Tan’s redundancy, the conference dealt with that issue. Mr Sunderland, then Acting Director of People, withdrew the First Choice Letter on 9 March 2015 to allow the conference to proceed that day before the Commission in good faith.41 Further correspondence, discussions and conferences before the Commission ensued, including the issue and withdrawal of a Second Choice Letter, and the issue of a Third Choice Letter.42 The Third Choice Letter stated that Ms Tan was redundant effective 27 April 2015 and asked her to elect either immediate retrenchment or redeployment or retraining.

[17] Ms Tan elected redeployment in response to the Third Choice Letter on 21 April 2015. The next day, Ms Watson, Redeployment Co-ordinator, was notified of this. She began to assist Ms Tan with possible redeployment shortly thereafter. 43

[18] In her redeployment period, Ms Tan: 44

● underwent training and had meetings with senior editors and department heads to discuss possible job opportunities;
● applied for three positions within the ABC, but was not successful on the basis that she did not meet the selection criteria;
● made enquiries via Ms Watson about positions opening up as a result of various other employees leaving the ABC or being seconded elsewhere within it; and
● chose not to apply for certain positions that had been brought to her attention, due to personal circumstances and/or a desire to retain her ongoing status rather than accept a fixed-term contract.

[19] Redeployment was unsuccessful. As a result, Ms Tan’s employment with the ABC was terminated on 6 July 2015. 45

Consideration

[20] It is not in dispute that Ms Tan is a person protected from unfair dismissal. 46 I am satisfied that she is so protected.

[21] Section 385 of the Act provides:

‘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.’

[22] Section 385(a) of the Act is satisfied. It is not in dispute that Ms Tan has been dismissed.

[23] Section 385(c) of the Act does not apply in this case, as the ABC is not a small business.

[24] The ABC objected to Ms Tan’s application on jurisdictional grounds. Specifically, it submitted that Ms Tan’s dismissal was a case of genuine redundancy and that s.385(d) of the Act was therefore not satisfied.

Was Ms Tan’s dismissal a genuine redundancy?

[25] The meaning of ‘genuine redundancy’ is set out in s.389 of the Act:

‘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.’

[26] I will consider each element of the definition in turn.

No longer required because of changes in operational requirements: s.389(1)(a)

[27] Ms Tan submitted that her job had not been abolished and was in fact still being performed at the time of the hearing. She submitted that casual employees were performing the production tasks that she previously performed.

[28] I accept that Ms Tan’s dismissal was one of several hundred redundancies across the ABC, caused by a restructure following a reduction in its funding. It was open to the ABC, as it is to any employer, to respond to changing business needs by changing the skillset required of its employees, and/or the number of employees that it requires to operate efficiently. It is true that the ABC still generally requires employees to perform the duties that Ms Tan performed while employed – that is, production and reporting across various media platforms. However, I am satisfied that Ms Tan’s job was no longer required to be performed because, due to changes in the ABC’s operational requirements, it needed only four Reporter/Producers at the Band 5 level in the Sydney Newsroom rather than the six it had at the time of the November 2014 announcement.

[29] The ABC considered that the Sydney Newsroom could continue to operate effectively with two fewer Reporter/Producers at Band 5 level in the Sydney Newsroom, whilst saving costs. Accordingly, the ABC created a selection pool of the six Band 5 Reporter/Producers and scored each of them by reference to a skills matrix. This led to Ms Tan and one other employee being selected for redundancy on the basis that they had the lowest scores.

[30] I accept that the Sydney Newsroom is now operating with fewer staff overall than it did previously and, relevantly, fewer content makers. In particular, I accept Mr McMurtrie’s, Mr Lange’s and Mr McLeod’s evidence that this is due to a reduction in the nature and volume of reporting and production work for which the Sydney Newsroom is now responsible. 47

Compliance with obligation in enterprise agreement to consult: s.389(1)(b)

[31] It was not contested that the ABC Enterprise Agreement 2013-2016 48 (the Agreement) applied to Ms Tan’s employment. Relevantly for the purposes of s.389(1)(b) of the Act, clause 54 of the Agreement provides:

‘54. Consultation

54.1.1 This clause applies if:

a. the ABC has made a formal proposal to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise; and

b. the change is likely to have a significant effect on employees of the enterprise.

54.1.2 The ABC must notify the relevant employees and any union covered by this Agreement of the formal proposal.

54.1.3 The relevant employees may appoint a representative for the purposes of the procedures in this term.

54.1.4 The ABC must recognise the representative in accordance with clause 54.1.3, if:

a. a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

b. the employee or employees advise the ABC of the identity of the representative.

54.1.5 As soon as practicable after the ABC has developed the formal proposal, the ABC must:

a. discuss with the relevant employees:

i. the introduction of the change; and

ii. the effect the change is likely to have on the employees; and

iii. measures the ABC is taking to avert or mitigate the adverse effect of the change on the employees; and

b. for the purposes of the discussion- provide, in writing, to the relevant employees:

i. all relevant information about the change including the nature of the change proposed;

ii. information about the expected effects of the change on the employees; and

iii. any other matters likely to affect the employees.

54.1.6 However, the ABC is not required to disclose confidential or commercially sensitive information to the relevant employees.

54.1.7 The ABC must give prompt and genuine consideration to matters raised about major workplace change.

54.1.8 In this term, a major change is likely to have a significant effect on employees if it results in:

a. the termination of the employment of employees; or

b. major change to the composition, operation or size of the ABC's workforce or to the skills required of employees; or

c. the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

d. the alteration of hours of work; or

e. the need to retrain employees; or

f. the need to relocate employees to another workplace; or

g. the restructuring of jobs.

54.1.9 In this term, relevant employees means the employees who may be affected by the major change.’

[32] Clause 55.4 of the Agreement provides:

‘55.4 Consultation

55.4.1 Where likely redundancies have been identified, the ABC will at the earliest opportunity hold discussions with affected employees and their representatives concerning:

a. the reasons for the redundancies and the measures taken to avoid or minimise those redundancies;

b. the process to be followed where the redundancies arise from there being an excess number of employees within a class of employees (i.e. the redundancy selection process); and

c. alternatives to redundancy, including natural attrition, transfer and any opportunities for redeployment and/or retraining.

55.4.2 Provided that where the matters required to be discussed under this clause are covered in discussions under clause 54. Consultation, those discussions will also be regarded as satisfying the requirements of this clause.’

[33] Ms Tan submitted that the ABC had not adequately consulted her and that the MEAA did not represent her throughout the period between the restructure announcement and her signing of the Third Choice Letter, except for when her MEAA representative responded to Mr Lange’s email of 17 December 2014.

[34] I do not accept these submissions. First, there is well-established authority that as a general rule, consultation with unions in such situations may be taken to be consultation with their members. 49 Secondly, in any case, there is overwhelming and voluminous evidence before me of discussions via email, via telephone and in person, including at conferences before this Commission, that involved Ms Tan personally. Indeed, both Ms Tan and her MEAA representative were present simultaneously at a number of meetings and conferences relating to her redundancy and redeployment in March and April 2015.50 Thirdly, Ms Tan conceded at the hearing that she personally had had the opportunity to raise concerns or queries about the selection pool process from the day of the restructure announcement, but chose not to take it because she did not think the process would adversely affect her.51 That was the reason there was no consultation between the ABC and Ms Tan personally between November 2014 and February 2015. It was not because Ms Tan was unaware of her ability to provide feedback or give her opinion.

[35] I am satisfied that the ABC discharged its obligation to consult Ms Tan as per the Agreement. The fact that Ms Tan was dissatisfied with the outcome is understandable, but does not mean that consultation did not occur.

Reasonable redeployment: s.389(2)

[36] I accept Ms Watson’s evidence about the measures she took to help Ms Tan find other jobs within the ABC into which she might be redeployed. 52 I find that the ABC went to considerable lengths to assist Ms Tan in this regard. The unfortunate reality was that, as in many cases of mass redundancies, the opportunities available for redeployment were very limited. The ABC’s efforts were also hampered to some extent by the fact that Ms Tan did not select redeployment until some months after she had been notified that her position was redundant, and that she changed the parameters of the types of jobs in which she was interested on a number of occasions. I further note that Ms Tan concedes that there were positions available for which she chose not to apply.53

[37] Ms Tan submitted that the ABC’s attempts to redeploy her were inadequate because:

● other employees of the ABC had been ‘shielded’ from redundancy by having positions created for them and that she should have received similar treatment;
● she could have taken the place of or worked casually to backfill the positions of specific employees who had left the ABC or been seconded to other roles, whom she brought to Ms Watson’s attention; and
● she should not have had to apply for or respond to selection criteria for jobs advertised, but rather simply have been offered them.

[38] I do not accept the first submission, as it is simply not sustained on the evidence. Nor do I consider that being offered a job without having one’s suitability assessed at all is a measure reasonably required of an employer. I note that as a redeployee, Ms Tan was prioritised by the respective selection panels for the positions for which she did apply, and need only have demonstrated her suitability rather than needing to compete against other candidates (besides other redeployees).

[39] In relation to Ms Tan’s second submission, I accept Mr McLeod’s extensive evidence about why the movements of the specific employees she brought to Ms Watson’s attention did not result in positions which Ms Tan could have filled or performed casual work to backfill. 54

[40] In relation to Ms Tan’s third submission, I consider it entirely reasonable that an employer such as the ABC should choose not redeploy employees into positions for which they are either unsuitable because of their skills, qualifications and experience, or uninterested. Asking potential redeployees to apply for positions in which they are interested and assessing them to ensure they are suitable for those positions is an acceptable practice as long as it is conducted fairly and reasonably. I am satisfied that this occurred in relation to Ms Tan.

[41] In all the circumstances of this case, I find it would not have been reasonable to redeploy Ms Tan.

[42] I therefore find that Ms Tan’s dismissal was a case of genuine redundancy.

Conclusion

[43] The criterion in s.385(d) is not satisfied. I therefore have no jurisdiction to order an unfair dismissal remedy. The application is accordingly dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

K Tan in person.

Y Shariff, counsel, with G Jolly, solicitor, for the Australian Broadcasting Corporation.

Hearing details:

Sydney.

2015.

October 13, 14.

November 25.

 1   [2015] FWC 6741.

 2   Exhibit T1.

 3   Exhibit T2.

 4   Exhibit T3.

 5   Exhibit T4.

 6   Exhibit T5.

 7   Exhibit T6.

 8   Exhibit T7.

 9   Exhibit T8.

 10   Exhibit T9.

 11   Exhibit ABC1.

 12   Exhibit ABC2.

 13   Exhibit ABC3.

 14   Exhibit ABC4.

 15   Exhibit ABC5.

 16   Exhibit ABC6.

 17   Exhibit ABC7.

 18   Exhibit ABC8.

 19   Exhibit ABC9.

 20   Exhibit ABC10.

 21   Exhibit ABC11.

 22   Exhibit ABC12.

 23   Exhibit ABC13.

 24   Exhibit ABC14.

 25   Exhibit ABC15.

 26   Exhibit ABC5, annexure CM-1, cl 3.1.

 27   Ibid cl 3.2.

 28   Ibid cl 3.3.

 29   Exhibit ABC5, annexure CM-3.

 30 Exhibit ABC4, [13] and tab 2.

 31 PN2622-PN2627; exhibit ABC14, [5]-[7].

 32 Exhibit ABC2, [6], [10]-[16].

 33 Exhibit ABC2, [17]-[74].

 34   Exhibit ABC2, [69]-[70]; exhibit ABC4, [22].

 35   Exhibit ABC2, [12], [16]; exhibit ABC4, [18].

 36 Exhibit ABC6, [16]-[20].

 37 Exhibit ABC6, [19]-[35]; exhibit ABC4, [23]-[35].

 38   Exhibit ABC6, [38].

 39   Exhibit ABC2, [61].

 40   Exhibit ABC2, [69]; exhibit ABC4, [48].

 41   Exhibit ABC2, [71]; exhibit ABC4, [49].

 42 Exhibit ABC2, [72]-[82]; exhibit ABC4, [50]-[64].

 43 Exhibit ABC9, [17]-[22].

 44   See exhibit ABC9 generally.

 45   Exhibit ABC9, [93]; exhibit ABC2, [98].

 46   Fair Work Act 2009 (Cth) s.382.

 47 Exhibit ABC4, [18]; exhibit ABC6, [10]-[14]; exhibit ABC14, [10]-[13].

 48   AE405047.

 49   Ulan Coal Mines Limited v Howarth[2010] FWAFB 3488.

 50 Exhibit ABC4, [49]-[61].

 51   PN602-PN607.

 52   Exhibit ABC9.

 53   PN3156-PN3168.

 54 Exhibit ABC14, [14]-[23].

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