Kayyalakam Sajan v Amdel Pty Ltd

[2013] FWC 4784

[2013] FWC 4784

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kayyalakam Sajan
v
Amdel Pty Ltd
(U2013/8777)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 18 JULY 2013

Application for unfair dismissal remedy - redundancy - identification of position - position no longer required - consultation requirements - reasonable redeployment.

[1] On 22 April 2013 Mr Sajan lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), relative to the termination of his employment with Amdel Pty Ltd (Amdel). Mr Sajan’s application was not settled through the Fair Work Commission (FWC) conciliation process and was subsequently referred to me for determination.

[2] Section 396 requires that I decide a number of specified initial matters before considering the merits of the application. In this respect, the Amdel position was that the termination of Mr Sajan’s employment was a case of genuine redundancy. There is no dispute between the parties that the application was lodged within the statutory time limit and that Mr Sajan was protected from unfair dismissal. Amdel is a substantial employer such that the small business fair dismissal code does not have application.

[3] Arrangements relative to the determination of the matter were addressed in a directions conference on 27 May 2013. Directions were issued accordingly.

[4] Mr Sajan complied with these directions. Material from Amdel was to be filed by 10 June 2013 but was not filed until 12 June 2013. On that same day, Mr Sajan’s representative, Mr Hardie of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) lodged an application seeking an order to strike out the Amdel defence in this matter on the basis that the late receipt of this material disadvantaged the applicant.

[5] Mr Hardie also sought, and was granted an order for discovery with which Amdel complied on 14 June 2013.

[6] The application was listed for a conference with me on 17 and 18 June 2013. This conference was specifically to enable consideration of whether the termination of Mr Sajan’s employment was a case of genuine redundancy. At the commencement of this conference I confirmed that I was not prepared to strike out the Amdel defence on the basis that I considered that would represent a denial of natural justice. However, at Mr Hardie’s request, this conference was adjourned to 1 and 2 July 2013. At this conference Amdel was represented by Mr Crispin, the Human Resources Manager for Bureau Veritas Pty Ltd, the Amdel parent company.

[7] Amdel operate mineral testing laboratories which service the mining industry. In South Australia Amdel has two operating units. There is some interchange of staff between these two units, particularly at lower skilled levels.

[8] Mr Sajan worked for Amdel from 2007. His employment was governed by the Amdel Pty Ltd Adelaide Laboratories Agreement 2011-2014 (the Agreement). In January 2013 Mr Sajan was transferred from the XRF Division where he undertook relief supervisory roles, and was responsible for various, production management, reporting and testing functions, to the Centralised Weighing function which is within the same operating unit. The basis for this transfer and the extent to which it was on a temporary or ongoing basis are matters in dispute between the parties.

[9] In early 2013 Amdel management identified a requirement to reduce staff as a result of a significant downturn in demand within the mining industry. A voluntary redundancy call was initiated. One employee was selected for redundancy from employees who expressed interest in that call. In March 2013 Amdel identified that a further 14 employees needed to be made redundant. Divisional managers were advised of the staff reductions applicable in the work functions and undertook skills assessments to rank staff for this purpose.

[10] There is some dispute over when the AMWU were consulted with respect to the proposed compulsory redundancies. Correspondence between the AMWU and Amdel commenced on 4 April 2013 and continued until 16 April 2013. On 11 April 2013 Amdel provided the AMWU with information about its redundancy selection process. 1 Correspondence from the AMWU indicates that it was aware of the overall redundancy approach although the AMWU clearly disagreed with critical aspects of it. Those disagreed aspects I consider later in this decision.

[11] Mr Sajan contends that his normal position remains with the XRF Division and is continually staffed such that the job is still performed, and accordingly the circumstances in s.389(1)(a) are not met. Further, Mr Sajan contends that confusion over the nature of his job meant that the consultations about the redundancies were inherently flawed.

[12] Additionally, Mr Sajan contends that the consultation process which preceded the termination of his employment was not consistent with the consultation requirements set out in clause 23 of the Agreement and hence the termination of his employment was not consistent with s.399(1)(b).

[13] Mr Sajan contends that the termination of his employment was not a genuine redundancy because Amdel contravened clause 22 of the Agreement because it continues to employ approximately 17 casual Laboratory Technicians who are undertaking work which he was qualified to do and hence, consistent with s.389(2) he should have been redeployed to such a position.

[14] The Amdel position is that, the downturn in work necessitated the reduction in weekly hire and casual staff and that this was communicated to both employees and to the AMWU in mid March 2013. Amdel confirmed that the call for voluntary redundancies resulted in one employee being selected for redundancy whilst, at that time, 10 to 15 positions were required to be lost. Amdel advised that, as a consequence, a compulsory redundancy process commenced in early April. The Amdel position is that it identified the persons to be made redundant through a skills analysis and advised the AMWU of its intention to implement compulsory redundancies on 5 April 2013, which was the same date upon which it commenced advising the affected employees that it proposed to make redundant. The AMWU was subsequently involved in discussions and correspondence exchanges with Amdel management. In the course of these communications the AMWU identified particular concerns associated with the selection process, Amdel’s continuing employment of casual employees and the particular circumstances of Mr Sajan and another employee. The AMWU last communicated with Amdel management on 15 April 2013.

[15] Mr Sajan was advised that he had been selected for redundancy on 5 April 2013. 2 At this meeting Mr Sajan was advised that his redundancy was subject to a further business review, he was provided with a list of possible alternative positions within Amdel and was invited to indicate interest in these positions. Mr Sajan advised that he had applied for at least one of these positions. Whilst a further meeting was arranged for 11 April 2013, Mr Sajan was advised that he would continue to be paid but he was not required to attend work until that meeting. Mr Sajan was advised that he could be represented, including by the AMWU, at future meetings.3 Mr Sajan indicated that he did not wish to be represented. The 11 April 2013 meeting was deferred to 12 April 2013. Mr Sajan was aware that his earlier application was unsuccessful but at this meeting he expressed interest in one of the weekly hire positions in the relatively new Cribs Project which positions were identified on the list of positions given to him. Amdel management then arranged for Mr Sajan to be interviewed and considered for one of these three vacant positions. Four other employees, who were to be made redundant expressed interest in these positions.

[16] Amdel management met with Mr Sajan again on 18 April 2013 and advised him that he had been unsuccessful in pursuing a position within the Cribs Project and that he would be made redundant with effect from that day.

[17] There was no dispute about the Amdel advice that 12 positions were made redundant in April 2013 and a further five in May 2013.

[18] Evidence in this matter was given by Mr Sajan, relative to the job functions he undertook and the process which resulted in the termination of his employment. I particularly note that a substantial part of Mr Sajan’s evidence went to his concerns about the management of the XRF Department. Mr Bauer, the Regional Secretary of the AMWU gave evidence about the communications he had with Amdel over the proposed redundancies and his concerns that Amdel had failed to comply with the Agreement provisions with respect to the employment of casual employees. Additionally, evidence was given by other, current and former Amdel employees: Mr Wilkey, Mr Patel, Mr Kumar and Mr Banker. This evidence went to the redundancy process, their disagreement with the management assessment applied to Mr Sajan, criticisms of the XRF Department Manager and the number of casual employees engaged or retained since April 2013.

[19] For Amdel, evidence was given by Mr Crispin about the overall redundancy situation and approach. Ms Jolly who was then the Amdel Senior Human Resource practitioner, gave evidence about the redundancy selection process, redeployment initiatives and discussions with employees to be made redundant. Mr Tubman is the Operations Manager for the Adelaide Mineral Processing component of the Amdel operations. His evidence went to workload and staffing projections. Mr Bowker is the Senior Project Manager for the Cribs Project. His evidence went to staffing for that project and to the steps he took to assess employees, identified for redundancy, who had expressed interest in redeployment to work on that project. Ms Mani is the Manager of the XRF Department. Her evidence went to her assessment of Mr Sajan, the skills assessment process and the changes which had been made consequent upon the redundancies.

[20] I have noted that a Mr Hartley who was the Amdel Senior Operational Manager involved in the selection of persons to be made redundant was not called to give evidence. I have not drawn any adverse inference from this as Mr Hartley was also made redundant and is no longer employed by Amdel.

Findings

[21] Section 385 specifies that a dismissal cannot be unfair if it was a case of genuine redundancy. Section 389 states:

“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.”

[22] Before considering each of the criteria necessary to constitute a case of genuine redundancy it is appropriate that I note that a substantial component of the evidence provided to me related to Mr Sajan’s criticisms of the Amdel selection process. In UES (Int’l) Pty Ltd v Harvey 4 the majority stated:

“[27] 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”. 16

[28] We think it unlikely that it was intended that FWA’s consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct would extend to the process for selecting the person for redundancy when:

(i) the process for selecting a person for redundancy is not relevant to FWA’s determination of an unfair dismissal remedy application if the s.389 criteria for a case of genuine redundancy are met, and

(ii) any unmet criteria in s.389 of the FW Act can be taken into account as part of s.387(h) in FWA’s consideration as to whether the dismissal was harsh, unjust or unreasonable.

[29] To conclude otherwise would mean that where an employer met the s.389 criteria for a genuine redundancy the process for selecting the person for redundancy would not be a matter FWA would consider in respect of an unfair dismissal remedy application. However (unless the application was otherwise determined) an employer who did not meet the s.389 criteria because, for example, they failed to consult as required by s.389(b) of the FW Act would have both the failure to consult and the process for selecting the person for redundancy considered in any unfair dismissal remedy application.”

[23] In closing, Mr Sajan’s representative, Mr Hardie conceded that the selection process as such was not a matter which could be considered as part of my deliberations pursuant to s.389. However, Mr Hardie submitted that uncertainty about what was Mr Sajan’s actual job, affected any consideration of whether “the job” was done by anyone, the consultation process and the redeployment process. I have taken this submission into account in considering s.389.

Was Sajan’s job no longer required to be performed?

[24] I have concluded that Mr Sajan’s primary appointment was to a position within the XRF Department. The evidence about the particular duties and responsibilities which he undertook is conflicting but I have concluded, on the evidence of both Mr Sajan himself 5 and that of Ms Mani6 that he primarily undertook calculations relevant to report testing data. I have accepted that, at least from time to time, Mr Sajan undertook various production, supervisory and training functions.

[25] In February 2013 Ms Mani transferred Mr Sajan to the Centralised Weighing function as a consequence of advice from her then manager, Mr Hartley to the effect that reductions in the XRF Department workload required reduced staff. 7 Ms Jolly’s evidence was that a number of XRF employees were transferred at this same time. Ms Mani’s evidence was that the Centralised Weighing function had sufficient work at that time to accommodate Mr Sajan. I have concluded that Mr Sajan was not permanently transferred to that Centralised Weighing function and that, as a consequence, there was a general expectation that, dependent upon workload, he would return to the XRF Department.

[26] As a consequence, in considering whether in early April 2013 Amdel no longer required Mr Sajan’s job to be performed by anyone, I have directed primary attention to the functions which he undertook in the XRF Department, before then considering the Centralised Weighing function.

[27] The evidence before me indicates that a downturn in demand from the mining industry profoundly impacted on the work available to Amdel from early 2013. This is shown by sales, hours worked and full-time equivalent employee comparisons provided by Mr Crispin. 8 It is also clear that significant changes were made to employee work and shift arrangements.9 I have also accepted the unchallenged evidence of Mr Crispin of reductions throughout the Amdel operations.

[28] Ms Jolly’s evidence was to the effect that work undertaken by both the XRF Department and Centralised Weighing had been rearranged and reallocated from April 2013.

[29] The evidence of Ms Mani was that, having clarified her manager’s expectations of how the skills assessment should be conducted with respect to Mr Sajan, she assessed Mr Sajan against his primary position in the XRF Department but then checked that assessment with the manager of the Centralised Weighing function. In terms of the changes made to both the XRF Department and Centralised Weighing Ms Mani stated:

“The XRF department was cut to the bone from 11 permanent staff I am left with only 6 including myself and the need is such that I have to go and do production level jobs so permanently I am based in the lab, I wear a lab coat, I do fusions, I do [indistinct] and as and when required, I report samples to the plant

SDP O’CALLAGHAN

Is the job that Mr Sajan did before he was transferred to Central Weighing still there?

MS MANI

No, that job is not there, in presence of Sajan I had two calculators, Sajan and Imitaj so when Sajan was moved out from Centralised Weighing Imitaj continued in his old role and now he is in production.

SDP O’CALLAGHAN

How much do you know about the Centralised Weighting function?

MS MANI

I know a lot, because that is the entry level, it requires no skill.

SDP O’CALLAGHAN

But was the job that Mr Sajan was doing in the Central Weighing area before he was made redundant, is that still there?

MS MANI

No, the whole department was made redundant.” 10

[30] Ms Mani’s evidence confirmed the reallocation of tasks amongst XRF Department employees, including the extent to which she now undertook substantial calculation duties. Whilst Ms Mani described the function undertaken by Mr Sajan in the XRF Department as a critical position, it is clear that that critical function has now been allocated to her.

[31] I do not consider that there is any significant contradiction in the evidence provided to me by Ms Mani, Ms Jolly and Mr Crispin with respect to the restructuring which occurred in April 2013. However, to the extent of any contradictory material, I tend to prefer the evidence of Ms Mani as the operational manager with the closest involvement in these functions.

[32] The Commission has generally adopted the position that where an employer reduces staff and rearranges work allocations as a result of a business downturn the requirements of s.389(1)(a) have been met. This reflects the provisions of paragraph 1548 of the Explanatory Memorandum to the Fair Work Bill 2008 which states:

“1548. The following are possible examples of a change in the operational requirements of an enterprise:

• a machine is now available to do the job performed by the employee;



• the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or



• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.”

[33] On the material before me I am satisfied that the termination of Mr Sajan’s employment meets the requirements for a genuine redundancy in so far as they are set out in s.389(1)(a). Mr Sajan’s primary position in the XRF Department was the subject of a fundamental restructure involving the loss of nearly half of the employees in that department and the temporary position he occupied in the Centralised Weighing function was abolished as part of the abolition of that discrete function. I am satisfied that these changes occurred in response to a significant downturn in the Amdel business operations.

Did Amdel comply with any obligations in a modern award or enterprise agreement to consult about the redundancy?

[34] Mr Sajan’s position is that, firstly, Amdel did not comply with the consultation provisions in the Agreement. Secondly, that uncertainty about Mr Sajan’s primary position meant that the consultation process was seriously flawed.

[35] The Agreement provides for consultation in the following terms:

“23. WORKPLACE CHANGE

23.1 Where the Employer has made a definite decision to introduce major changes in production, programming, organisation, structure or technology that are likely to have significant effects on employees, it will notify the employees who may be affected by the proposed changes.

23.2 Significant effects include termination of employment; major changes in the composition, operation or size of the workforce or in the skills required; the elimination or reduction of job opportunities, promotional opportunities or job tenure; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs, except that, where the Award or this Agreement makes provision for alteration of any of these matters, an alteration will be deemed not to have a significant effect.

23.3 The Employer will consult with the employees affected and the union on the introduction of the changes, the effects the changes are likely to have on employees and measures to avoid or reduce the adverse effects of such changes. It will give prompt consideration to matters raised by the employees and/or the union in relation to the changes.

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

If:

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

23.4.2 the employee or employees advise the Employer of the identity of the representative;

the Employer must recognise the representative.

23.5 The discussions will commence as early as practicable after a definite decision has been made by the Employer to make the changes referred to in 23.1, with the intentions of the parties being to:

23.5.1 minimise the stresses on employees; and

23.5.2 strike a balance between the interests of potentially redundant employees and those of the business (these latter interests affecting the employment prospects of remaining employees).

23.6 For the purposes of such discussion, the Employer will provide to the employees and union delegate/s concerned, all relevant information about the changes, including the nature of the changes proposed, the expected effects of the changes and any other matters likely to affect employees, provided that the Employer will not be required to disclose confidential or commercially sensitive information where such disclosure would be harmful to its interests.

23.7 Where redundancies are unavoidable, voluntary redundancy will be used in preference to compulsory redundancy, where practicable.

23.7.1 The relevant workforce and the union will be advised of the required number of redundancies in a timely manner.

23.7.2 Employees will be offered the opportunity to volunteer for redundancy.

23.7.3 Any employee interested in volunteering for redundancy will be provided, upon request, with a statement of his/her termination payments, inclusive of redundancy payments, the pay-out of accumulated leave entitlements and (if relevant) payment in lieu of notice.

23.7.4 The Employer will have the right to refuse an employee being made redundant if that employee has skills necessary for the performance/service delivery of the laboratory or relevant section where those skills would not otherwise be available within the remaining workforce (allowing for the redeployment of employees within the laboratory). The focus will be on the retention of skills, not individual employees.

23.7.5 The time between points 23.7.1 and 23.7.4 inclusive will be a minimum of five calendar days.

23.7.6 If after point 23.7.5, an insufficient number of employees has been identified and accepted for voluntary redundancy, the Employer will have the right to make the balance compulsorily redundant. Judgments as to which employees to make compulsorily redundant and which to retain will be based on the skills best suited to the future requirements of the laboratory or relevant section.

23.7.7 Any disagreement arising from application of points 23.7.1 to 23.7.6 inclusive will be the subject of discussion between the Employer and the union.

23.8 Nothing in this clause is intended to prevent other initiatives (e.g. part-time employment, job-sharing or the taking of accumulated leave entitlements) being the subject of without prejudice discussions in order to "avoid or reduce the adverse effects" of redundancy.”

[36] Mr Sajan asserts that this clause must be read in concert with clause 2 of the Agreement which states:

“2. RELATIONSHIP TO AWARDS/NES

This Agreement incorporates

(i) the Manufacturing and Associated Industries and Occupations Award 2010 (the

Award)

(ii) the Clerks - Private Sector Award 2010 (Clerks Award), Clause 16 'Minimum

Weekly Wages' and Schedule B - 'Classifications' only.

(iii) the Draughting, Production Planners and Technical Workers Award 1998

(DPPTW Award) as it existed prior to certification of the Amdel Adelaide Laboratories Agreement 2005 (the "2005 Agreement") - Section 1.6 "Classification Structures and Definitions" only.

(“the Awards") as they existed at the time this Agreement commenced operation provided that where there is any inconsistency, the Agreement will prevail.

Where provisions have been deleted from the Award subsequent to commencement of the 2005 Agreement consequent upon changes in legislation, those provisions will nevertheless apply during the life of this Ageement, except to the extent that it would be unlawful for a person to apply the relevant provision, or compliance with the provision would expose a person to the risk of contravening a civil penalty provision.”

[37] Accordingly, Mr Sajan asserts that Amdel was required to adhere to a combination of the requirements for consultation set out in the Agreement, together with the provisions of either or both the Manufacturing and Associated Industries and Occupations Award 2010 (the Modern Award) and the Metal, Engineering and Associated Industries Award 1998, as it applied in 2005 and at the time the Agreement came into operation.

[38] The Modern Award provisions relative to consultation regarding major workplace change (clause 9) substantially exceed the provisions of the former Metal, Engineering and Associated Industries Award. The Modern Award provisions specify a general approach to consultation rather than the specific approach set out in the Agreement which recognises voluntary and involuntary redundancy arrangements and processes. The Modern Award provision requires an employer to provide written advice to the employees concerned, and their representatives about the changes proposed, the effects of those changes on employees, and any other matters likely to affect employees.

[39] I have adopted the position that the consultation provisions in the Agreement represent a comprehensive code relative to consultation and must accordingly be applied to the exclusion of the Modern Award obligations. The parties had the opportunity, when the Agreement was negotiated, to incorporate particular provisions relative to written advice, and clearly did not do so. Consequently, I have reviewed the Amdel consultation process in the context of the obligations established in clause 23 of the Agreement.

[40] The evidence of Mr Crispin and that of Ms Jolly is that, on 13 and 14 March 2013, Amdel advised its employees of the current business situation and the need to initiate a call for voluntary redundancies. The evidence of Mr Bauer confirms that the AMWU was advised of this process and subsequently engaged in discussions with Amdel. 11 Those discussions addressed, amongst other things, an extension of the date by which voluntary redundancy applications could be made. The evidence of Mr Wilkey confirms that, on 5 April 2013 the then Amdel Operations Manager, Mr Hartley, advised a staff meeting of employees that there had been insufficient take-up of the voluntary redundancy offer and that a compulsory redundancy process had commenced and that the employees involved would be advised accordingly. Again, it is clear from the evidence of Mr Bauer12 that the AMWU was advised of the commencement of an involuntary redundancy process. The AMWU and Amdel exchanged various e-mails and met on 9 April 2013. As at 15 April 2013 the evidence of Mr Bauer confirms that, despite ongoing discussions with Amdel management, the AMWU disagreed with the conclusions that can be drawn from the Amdel skill assessment process, the approach to be adopted with respect to ongoing employment of casual employees, and specifically, the selection of Mr Sajan and another employee for compulsory redundancy. I have concluded that those concerns remained unresolved.

[41] I accept the evidence of Ms Jolly that, at the meeting on 5 April 2013 at which Mr Sajan was advised that he had been selected for redundancy, Mr Sajan was given a list of possible redeployment options. He was advised that he could bring a representative to future meetings to consider alternatives to redundancy and that he was not required to attend at work until the next meeting. 13 Mr Sajan advised that he had applied for positions within Amdel in Adelaide and that he did not wish to be represented in future meetings. Further meetings were held with Mr Sajan on 11 April 2013 at which he confirmed his interest in a position with the Cribs Project, and on 18 April 2013 at which Amdel advised Mr Sajan that he could not be redeployed and was made redundant. I am satisfied that Mr Sajan was clearly advised that he would continue to be paid until his redundancy was formally confirmed and that, despite a brief time when payments stopped in error, Mr Sajan was paid until 18 April 2013.

[42] I have concluded that Amdel met the requirements of clause 23.1, 23.2 and 23.3. In this latter respect, Amdel took some days to respond to various AMWU concerns but nevertheless did so in a manner which the AMWU did not take issue with pursuant to the Agreement dispute resolution provisions.

[43] I am not persuaded that Mr Sajan appointed the AMWU as his representative in this matter although it is clear that he was a member of that union. Notwithstanding this I do not consider that Amdel breached the requirements in clause 23.4 in terms of recognition of the AMWU.

[44] I am satisfied that the requirements of clause 23.5 and 23.6 were met in this situation. On the evidence available to me, no breach of clause 23.7 has been established.

[45] I do not consider that the difference in opinion between the AMWU and Amdel over the continued employment of casual employees represents a breach of the consultation requirements set out in the Agreement. Furthermore, given the extensive nature of the organisational changes being made by Amdel, I do not consider the fact that Mr Sajan was temporarily allocated to work in the Central Weighing function represented confusion such that the necessary consultation requirements were not met. In this last respect, I have noted that Mr Sajan had the opportunity to seek the assistance of the AMWU before he was actually made redundant and hence initiate either discussions or dispute resolution processes relating to this issue in a timely fashion. This was not done.

Was it reasonable for Amdel to redeploy Mr Sajan?

[46] In considering this issue I have again had regard to the hybrid nature of Mr Sajan’s employment. I have considered the redeployment approach adopted by Amdel, including its associated entities and the extent to which continued employment of casual employees is indicative of reasonable redeployment opportunities.

[47] Firstly, to the extent that redeployment within either the XRF or Centralised Weighing functions was possible, I am satisfied that the scope of the restructuring required by Amdel excluded redeployment in both these areas.

[48] In terms of whether redeployment would have been reasonable in another Amdel, or associated entity function, I have noted that the general Amdel recruitment approach involves an open selection call. As a consequence, the majority of the positions which Mr Sajan was invited to consider for redeployment were positions which had already been advertised. In Ulan Coal Mines Limited v Honeysett and others 14 a Full Bench made the following observations:

“[34] It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the 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. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.

[35] Where an employer is part of a group of associated entities which are all subject to overall managerial control by one member of the group, similar considerations are relevant. This seems to us to be a necessary implication arising from the terms of s.389(2)(b). While each case will depend on what would have been reasonable in the circumstances, subjecting a redundant employee to a competitive process for an advertised vacancy in an associated entity may lead to the conclusion that the employee was not genuinely redundant.”

[49] In Mr Sajan’s case there is no evidence that Amdel decided that, as an alternative to redeploying Mr Sajan into a suitable job, either within the division within which he worked or in any associated entity, it would advertise a position and required Mr Sajan to compete with other applicants. With the exception of the recently created three Cribs Project positions, which were not openly advertised and which Mr Sajan was invited to express interest in, I am satisfied that the remaining positions were simply positions which had been identified as possibly of interest to Mr Sajan. Indeed, on his own evidence, Mr Sajan had already applied for at least one of those positions. Consequently, the fact that Amdel bought to the attention of Mr Sajan, positions which had been publicly advertised, does not result in a conclusion that Amdel had failed to take reasonable redeployment steps.

[50] Clause 22 of the Agreement provides for the engagement of casual employees in limited circumstances. This clause relevantly states:

“22.4 Supplementary employees will be engaged only:

22.4.1 When there is an inability to meet operational needs with available permanent employees due to peaks in workloads, emergencies or unplanned absences; in such cases, the use of casual employees will be preferred;

22.4.2 When there is an absence of required skills in the available permanent workforce; or

22.4.3 To perform special projects; in such cases, supplementary employees will be engaged on fixed-term contract.

22.5 For the purposes of this clause

22.5.1 Fixed Term Employment

An employee may be engaged on a full time or part time basis for a specific period of time or for specific task/s.

The details of the specific period of time or specific task/s shall be set out in writing and retained by the Employer. The Employer shall provide a copy to the employee.

An employee engaged in accordance with Clause 22.5 is for all purposes of this Agreement and the Award a full-time or part-time employee.

Service under a contract of employment for a specific period of time or specific task/s shall form part of an employee's period of continuous service, where such employee is engaged as a full-time or part-time employee immediately following such contract of employment.

22.5.2 Contract labour engaged other than on fixed-term contract will receive no less on balance (over the period of their engagement) than the rates and conditions specified by this Agreement.”

[51] Mr Sajan’s position is that Amdel’s employment of casual employees was inconsistent with clause 22 and meant that, had the employment of one or more of those casual employees been terminated so as to comply with that clause, a redeployment opportunity would have existed for Mr Sajan.

[52] I have considered this issue in the context of the evidence about casual employment at the time of the termination of Mr Sajan’s employment. Some evidence about the use of casual employment at the present time has been provided to me but I do not consider that to be relevant to an assessment of redeployment opportunities at the time Amdel determined that Mr Sajan was redundant.

[53] The evidence of Mr Crispin 15 was that, at that time, casual employment in the business unit which engaged Mr Sajan had ceased. The evidence of Mr Tubman who is the Operations Manager for the second operational unit of Amdel in Adelaide (the Adelaide Geoanalytical business unit) went to confirm the consistent impact of the general business downturn impacting on Amdel. Mr Tubman was involved in discussions with Mr Crispin and Mr Hartley about the possibility of redeployment opportunities in his business unit. Mr Tubman’s evidence was that whilst his business unit engaged some 19 casual employees, these employees were engaged on work which was anticipated to conclude by early to mid June 2013 and as a consequence he did not consider that the redeployment of Mr Sajan to occupy such a short term casual position was a reasonable step. Mr Tubman confirmed that, in line with his expectations, six casual employees concluded work in May 2013 but that fluctuating business demands had resulted in the ongoing employment of varying numbers of casual employees.

[54] I am not satisfied, on the evidence before me, that Amdel has breached clause 22 of the Agreement such that Mr Sajan could reasonably have been redeployed as a weekly hire employee into an existing position held by a casual employee. Mr Sajan may have had skills which would allow him to undertake certain of those duties but that given the evidence of Mr Tubman about the limited anticipated duration of that work I am unable to conclude that redeployment was a realistic option at that time. Had the evidence indicated a likely continuation of those casual positions, I may well have arrived at a different conclusion. The evidence that changed work demands, since 18 April 2013 has meant that some casual employees were retained, does not make the assessment conducted by Mr Tubman unreasonable.

[55] Amdel provided Mr Sajan with the opportunity to be considered for one of the three vacant Cribs Project positions, which had been undertaken by casual employees but were assessed to be of an ongoing nature. Mr Sajan did not have to apply for those positions but was considered when he expressed interest in them to Ms Jolly. He was interviewed and undertook an aptitude test and the evidence of Mr Bowker, the Project Manager, indicates that he was objectively assessed against other employees, identified for redundancy, who had similarly expressed interest. In this respect Amdel clearly adopted a reasonable attempt at redeployment.

[56] The evidence of Mr Crispin confirms the company-wide impact of the mining industry downturn such that there is no indication of reasonable redeployment opportunities beyond those identified by Amdel in April 2013.

[57] Subsequent to the proceedings on 2 July 2013 Mr Hardie has forwarded to my office a copy of a job advertisement. To the extent to which it is argued that this goes to establish an unutilised redeployment opportunity, or for that matter, that it goes against Mr Sajan’s redundancy situation, an advertisement for a position in circumstances not established to me, some months after the redundancy, is not relevant to this matter.

Conclusion

[58] Having considered each of the factors set out in s.389 of the FW Act, I have concluded that the termination of Mr Sajan’s employment was a case of genuine redundancy. It follows that Mr Sajan cannot have been unfairly dismissed. An Order (PR539040) dismissing the application will be issued consistent with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

T Hardie representing the applicant.

T Crispin representing the respondent.

Hearing details:

2013.

Adelaide:

June 17

July 1, 2.

 1   Exhibit A2

 2   Exhibit A4, p.2

 3   See Ms Jolly’s statement and summary of discussions with employees identified for compulsory redundancy Exhibits A4 and A5

 4   [2012] FWAFB 5241

 5   Exhibit S8, para 2

 6   Exhibit A8

 7   Ibid

 8   Exhibit A1

 9   See, for example, Ms Mani’s evidence of a reduction in the number of shifts

 10   Transcript (audio), 2 July 2013, 10.38 am

 11   Exhibit S3, para 3

 12   Ibid, para 4

 13   Exhibit A4, p.2

 14   [2010] FWAFB 7578

 15   Exhibit A1

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