L Lazenby v United Voice

[2015] FWC 191

[2015] FWC 191

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

L Lazenby
v
United Voice
(U2014/12340)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 13 JANUARY 2015

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

[1] On 8 September 2014, Ms L Lazenby (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) for relief in respect of the alleged termination of her employment by United Voice (the Respondent).

BACKGROUND

[2] The Applicant worked for the Respondent as a Reception and Scheduling Co-ordinator on an ongoing full-time basis from May 2009, until the termination of her employment on 5 September 2014. Her primary duties were answering the telephone and greeting visitors at the front desk, with other duties including distributing mail and managing room bookings. In the middle of 2014, the Respondent implemented a new menu based telephone system, which reduced the primary function of the Applicant of answering telephone calls and directing them to the relevant employee/official of the Respondent. In light of the impact of the new telephone system on the Applicant’s workload, additional duties were given to the Applicant in about July 2013, at a higher level and a higher classification. However, the Respondent formed a view that the Applicant was struggling with the higher level duties and her role reverted to the previous role and classification in late 2013.

[3] At the commencement of 2014, Ms E Webb commenced employment with the Respondent as the Finance and Operations Director, charged with the efficient management of income, investment and expenditure and operational systems. In about March 2014, Ms J Walsh, the Secretary of the Respondent worked with Ms Webb to devise a work-plan which involved a review of the Respondent’s needs in the reception area, initially scheduled for the second quarter of 2014 but re-scheduled until about August 2014.

[4] Ms Webb began investigating the operation of the reception area in late July 2014, 1 coming to a conclusion, in early August 2014, that there was no need for a dedicated receptionist in light of the reduced primary demands associated with the telephone duties as a result of the new telephone system, and that the additional duties undertaken by the Applicant could be reassigned to other existing employees. Ms Webb reported these conclusions to Ms Walsh in August 2014.2

[5] As a result of Ms Webb’s report, Ms Walsh decided it was appropriate that she have a conversation with the Applicant about the possibility that there may no longer be a need for the Applicant’s role with the Respondent. She met with the Applicant on 18 August 2014 and advised her of the review of the reception area by Ms Webb and Ms Webb’s conclusion that it did not appear that the Respondent still needed a dedicated person answering the telephone and receiving visitors, which may have meant the receptionist position was redundant and that the next step was for the Applicant to consult with Ms Webb about the issue and provide her feedback. The Applicant asked to go home and Ms Walsh acceded to the request. The Applicant did not return to the workplace again, save for a meeting on 26 August 2014 and a meeting on 4 September 2014, at which the decision to make the Applicant redundant was communicated to her. After the meeting with the Applicant on 18 August 2014, Ms Walsh met with Ms Webb, advised her of the conversation with the Applicant and asked her to send a letter to the Applicant outlining the process the Respondent wanted to follow, and to contact the Applicant to arrange a meeting to discuss her role.

[6] On 18 August 2014, Ms Webb sent a letter to the Applicant, 3 explaining the basis of the Respondent’s decision to dispose of the receptionist position and initiating a consultation process.

[7] On 18 or 19 August 2014, Ms Webb and the Applicant spoke by telephone. Ms Webb sought to set up the meeting referred to in her evidence but the Applicant declined to accept a meeting time until she had the opportunity to speak to her union representative.

[8] A meeting was ultimately arranged by the Respondent and the Applicant’s representative between the Applicant and Ms Webb, for 26 August 2014.

[9] A further meeting occurred on 4 September 2014 between the Respondent and representatives of the Applicant.

[10] The redundancy and the termination of the Applicant’s employment was conveyed to the Applicant by letter of 5 September 2014. 4

REASONS FOR DECISION

[11] The Applicant submitted that the termination was harsh, unjust or unreasonable.

[12] The Respondent opposed the application on the basis that the dismissal was a genuine redundancy within the meaning of s.389 of the Act and, as a result, the Applicant was not unfairly dismissed under s.385 of the Act.

[13] Under s.385 of the Act, a person has been unfairly dismissed if the Fair Work Commission (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.”

[14] In this case there is no dispute that the Applicant had been dismissed and the Respondent was not a small business to which the Small Business Fair Dismissal Code applied.

[15] Accordingly, it is only necessary to consider and determine whether the Applicant’s dismissal was a case of genuine redundancy, within the meaning of s.389 of the Act and, if it was not a genuine redundancy, whether the termination was harsh, unjust or unreasonable.

[16] If the dismissal was not a case of genuine redundancy, and the termination was harsh, unjust or unreasonable, the Applicant would have been unfairly dismissed and it becomes necessary to consider remedy under the Act.

[17] Section 396 of the Act requires that the Commission determine whether the dismissal was a case of genuine redundancy before considering the merits of the application.

Genuine redundancy

[18] Section 389 of the Act provides:

“(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.”

No longer required the Applicant’s job to be performed

[19] I find that the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent, in that it had decided that it no longer required a dedicated reception/telephonist position and that the remaining duties associated with that role and other duties of the Applicant could be re-assigned to other employees of the Respondent.

[20] That finding arises out of the evidence of Ms Walsh and Ms Webb’s evidence in relation to her findings from her review of the Respondent’s needs in the reception area. The evidence does not suggest that there was any other reason for the Applicant’s dismissal.

Consultation

[21] Section 389(1)(b) of the Act requires that, for a dismissal to be a case of genuine redundancy, the employer must comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy. The Clerks-Private Sector Award 2010 5 (the Award) applies to the employment of the Applicant by the Respondent and imposes consultation requirements upon the Respondent in respect of major workplace change in clause 8.1. Clause 8.2 of the Award deals with consultation about changes to rosters or hours of work and is not immediately relevant.

[22] Clause 8.1 of the Award provides:

“Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

[23] In the circumstances of this case, the decision by the Respondent to effect an organisational change of dispensing with the position of Reception and Scheduling Co-ordinator followed the review of the Respondent’s needs in the reception area undertaken by Ms Webb, at the direction of Ms Walsh. That review commenced in July 2014. 6 Ms Webb completed her review in late July early August 2014.7 Ms Webb reported her findings to Ms Walsh in August 2014.8 Ms Walsh made a decision to dispense with the position of Reception and Scheduling Co-ordinator on the basis of Ms Webb’s report and decided that she should discuss with the Applicant the possibility that there may no longer be a need for her role with the Respondent. She met with the Applicant for this purpose on 18 August 2014 to commence the consultation process about the change and its possible effect on the Applicant. It is not clear when the definite decision to dispense with the position of Reception and Scheduling Co-ordinator position was made, although it was at some time between early August 2014 and 18 August 2014.

[24] I am satisfied that once a definite decision to introduce the major change in structure was made, the Respondent did notify the Applicant as an employee who may be affected by the proposed change and did so, as early as practicable after the definite decision had been made. On 18 August 2014, Ms Walsh told the Applicant that she could bring a representative with her to discussions between the Applicant and Ms Webb about the change, 9 a position reinforced by Ms Webb.10

[25] There is some conflict in the evidence as to aspects of the conversation between the Applicant and Ms Walsh on 18 August 2014. On Ms Walsh’s account 11 she explained that the Respondent had reviewed the reception area setup and it did not appear that a permanently stationed employee in reception was required, the role of receptionist might be redundant and the next step was for the Applicant to meet with Ms Webb to consult about the issue and for the Applicant to provide feedback. The Applicant asked what roles were available, to which Ms Webb responded that she was not aware of what roles were available, “there may be some casual roles” but that was what she wanted the Applicant to speak to Ms Webb about. The Applicant’s evidence12 was that Ms Webb commenced the meeting apologetically, advising that the Applicant’s position may be made redundant and then stated that “we can stop the redundancy if you find work in the office for two days a week”. The Applicant conveyed this account of the meeting to Ms Ruben, a union delegate and a friend (Ms Rodda).

[26] I prefer the account of Ms Walsh. It is supported by a contemporaneous account of Ms Walsh’s version recorded in an email about an hour after the meeting and is consistent with the process of consultation subsequently undertaken. The Applicant’s account is a very partial account which in my view reflects a misapprehension on her part as to the purpose of the meeting and the process to follow (and which did follow). It may be that the reference to possible casual employment contributed to the Applicant’s misunderstanding. I also note that the Applicant was in shock and quite upset when she spoke to Ms Walsh. 13

[27] On 18 August 2014, Ms Webb sent a letter to the Applicant, 14 which:

● Confirmed the discussion between Ms Walsh and the Applicant, concerning the review of the need for the Reception and Scheduling Co-ordinator and the Respondent’s belief that the Applicant’s role may be redundant;

● Reiterated that the Respondent wanted the Applicant’s “feedback about whether the possibility of redundancy can be avoided or mitigated in some way” and whether the Applicant thought there were any redeployment options within the Respondent’s enterprise at the time;

● Provided information about how the Respondent reached the conclusion that the Applicant’s role may be redundant, summarising the outcome of Ms Webb’s review of the reception area; and

● Explained the next step, being a meeting at which there would be discussion of the Applicant’s feedback about whether there was any possibility the redundancy could be avoided or its effect mitigated, or any redeployment options.

[28] There then occurs a further divergence in the evidence.

[29] Ms Webb’s evidence was that she rang the Applicant on 18 August 2014, 15 left a message and the Applicant returned her call shortly after. Ms Webb indicated to the Applicant that she was sending a letter, in respect of which she and the Applicant needed to meet and discuss. The Applicant asked what redeployment options were available, to which Ms Webb responded that that was one of the things they needed to meet about and discuss. Attempts to arrange a meeting were unsuccessful, at that time, because the Applicant wanted to speak to her union representative before committing to a meeting.

[30] The Applicant’s evidence as to this discussion 16 was that on 19 August 2014, after having received the letter dated 18 August 2014 from Ms Webb, she called Ms Webb, in the presence of a friend (Ms Rodda) utilising the speaker function of the telephone. The Applicant’s evidence was that she recounted her understanding of Ms Walsh’s statement that there was part-time work if the Applicant could find the duties and sought more information. Ms Webb responded that there were no other jobs available and therefore this option was not a possibility. Ms Rodda gave similar evidence, save that Ms Webb was said to have stated the Applicant’s role was “not a part of the forward plan” of the Respondent.17

[31] It is common between each account that the Applicant was upset during the conversation to the point that Ms Webb offered her access to the Respondent’s Employment Assistance Program.

[32] I prefer the evidence of Ms Webb to that of the Applicant. It is supported by a contemporaneous account of Ms Webb’s conversation with the Applicant recorded in an email sent immediately after the conversation (and on the Applicant’s and Ms Rodda’s account, before the conversation was said to have commenced) and was consistent with the process of consultation set out in the 18 August 2014 letter and subsequently undertaken. The understanding of the conversation reflected in the evidence of the Applicant and Ms Rodda may have reflected a misunderstanding and, on the basis of Ms Rodda’s additional evidence, confusion between the Applicant’s role being made redundant and dismissal of the Applicant due to redundancy.

[33] Attempts were made to arrange a meeting between the Applicant and Ms Webb, through her delegate, Ms Ruben. 18 On 22 August 2014, Ms Ruben advised that the Applicant was upset and uncertain as to whether she would attend but wanted her union to represent her. The Respondent indicated, in response, that it urged the Applicant to attend (and offered to meet out of the office) and was very happy for the Applicant to be represented by her union. Ms Ruben confirmed the Applicant’s attendance, by email, on 25 August 2014. A meeting was ultimately arranged for 26 August 2014, with a note taker for the Respondent (Ms Acton), and the Applicant’s representatives Ms Ruben and Ms Dickie, (an organiser from the Applicant’s union) also in attendance.

[34] The meeting commenced with Ms Webb providing a written agenda: 19

● introduction and role review;
● confirm purpose of meeting (To discuss next steps from letter dated 18 August 2014);
● feedback on memo; and
● identify and agree next steps.

[35] According to the evidence of Ms Webb, 20 during the meeting:

● The Applicant stated that “she would like to move straight to discussing the redundancy package that would be offered to her”;

● The Applicant expressed a concern that “she had found her personal belongings at her workstation packed up, and that she believed this meant a decision about her position had already been made”, to which Ms Webb said she understood that concern “but was not aware this had occurred”;

● The Applicant stated that when she spoke to Ms Walsh on 18 August 2014, Ms Walsh raised the possibility of a part-time position or a position created, to which Ms Webb responded that the meeting “was meant to be a chance to discuss the matter, including if necessary options such [as] other work” the Applicant could do with the Respondent;

● The Applicant said that “she did not trust anything that had been said to her”;

● The Applicant asked Ms Dickie to “start talking about the redundancy package and the exact figures and if these were not provided to her she would move for an unfair dismissal claim”. Ms Webb responded that she did not have the figures as this was not supposed to be the purpose of the meeting but the figures would be provided within 48 hours;

● Ms Dickie said that the Applicant “had been clear on her position and suggested that the meeting could continue without her needing to be present”. The Applicant left the meeting at this point;

● Ms Dickie said words to the effect that “it appeared that the working relationship between [the Applicant] and United Voice has become irreparable and a consultation on options for the position was not tenable. She indicated that [a] quick resolution in terms of a redundancy package is now [the Applicant’s] preference”; and

● Ms Webb set out the parameters of a redundancy package and Ms Dickie asked for an additional “ex-gratia payment for a quick resolution of $5000”.

● Ms Webb reiterated the purpose of that “meeting was to confirm next [the] steps for the position” and for the Applicant to have the “opportunity to consult about the position” and “proposed a further meeting to occur on 29 August 2014”. Ms Dickie responded that “this was no longer tenable and a quick resolution for both parties would be preferable”.

[36] The Applicant’s evidence as to the meeting on 26 August 2014 was limited. 21 It was during the meeting that Ms Webb denied that she had stated that there was no work for the Applicant in the telephone conversation of 19 [18] August 2014. The Applicant stated she had heard Ms Webb clearly during the telephone call. The Applicant became upset and left the meeting.

[37] Ms Dickie’s evidence 22 was that due to the Applicant’s advice to her that no real redeployment options were open, she proposed that we “cut to the chase and deal with details” of the Applicant’s redundancy package and requested a “quote”. Ms Webb advised that she did not have one ready, which surprised Ms Dickie given her understanding that there “was no alternative job to offer” to the Applicant. Ms Dickie than expressed her view that the consultation process was “well below par”. Her evidence was that the Applicant left the meeting and returned distressed, having found that her personal belongings had been put in boxes. Ms Dickie pursued a settlement on the basis of “an ex-gratia payment of $5000”.

[38] Ms Ruben’s evidence 23 was that Ms Webb had prepared an agenda for the meeting and wanted to review the Applicant’s feedback on proposed options for redeployment. The Applicant responded that according to the telephone call of 19 August 2014 from Ms Webb “there were no options for redeployment and talking about one now was a waste of time”. The Applicant repeated that Ms Walsh had offered as an option two days of work per week but she had been told that this was not an option.

[39] Later on 26 August 2014 after the meeting, Ms Webb emailed Ms Dickie details of the Applicant’s redundancy entitlements. 24 The email was said to follow up the 26 August 2014 meeting. Ms Webb wrote:

“The meeting was requested to get [the Applicant’s] feedback on my letter to her dated 18 August. I was keen to hear her thoughts on re-deployment. From the meeting today it seems that [the Applicant] is not interested in re-deployment options. If she is interested, I need to get feedback by Thursday so we can consider, otherwise we will then confirm the redundancy, and process the payment.”

[40] At the request of the Applicant’s union, a further meeting occurred on 4 September 2014 between the Respondent’s Assistant Branch Secretary (Mr Redford), Ms Webb and two union representatives of the Applicant (Ms Dickie and Mr O’Loughlin). The meeting commenced with Ms Dickie advising that the Applicant’s representatives wanted to see if a settlement could be reached in which the Applicant would be paid an additional sum of money. At the conclusion of which Mr Redford advised that, subject to any feedback from the Applicant or her representative, the Respondent felt it had no choice but to make the Applicant’s employment redundant.

[41] The redundancy and the termination of the Applicant’s employment was conveyed to the Applicant by letter of 5 September 2014. 25

[42] From the evidence, I find that the Respondent sought to engage in consultation with the Applicant about its decision to dispense with the receptionist position and sought to engage with the Applicant about possible means to mitigating or avoiding any adverse impact on the Applicant, including through redeployment, given that the Applicant was employed in that position. Ms Walsh briefly outlined such a process in the meeting of 18 August 2014 with the Applicant. The process was confirmed in the letter of 18 August 2014 from Ms Webb to the Applicant and reinforced in her discussion with the Applicant on 18 [19] August 2014. A meeting was arranged for 26 August 2014, with the Applicant and her representatives for the purpose stated in the 18 August 2014 letter. The meeting agenda provided by Ms Webb on 26 August 2014 was directed to that purpose and she pursued that purpose to the extent she was able in light of the approach of the Applicant and her representative. In providing the redundancy “quote” to Ms Dickie, Ms Webb again raised the desirability of engagement by the Applicant in respect of redeployment options.

[43] On the other hand, the Applicant (and her representatives on the basis of her instructions and advice as to what had occurred in her discussions with Ms Walsh and Ms Webb) simply did not engage in the consultation process established by the Respondent. The Applicant approached the meeting as a “fake meeting” and a “parody”, 26 on the basis of her understanding of what was put to her by Ms Walsh and Ms Webb on 18 [19] August 2014 and her perception that the boxing of her personal belongings27 at the workplace confirmed that a decision had been made that her employment would be terminated. She persisted in her approach, notwithstanding Ms Webb’s differing view as to the conversation of 18 [19] August 2014 and her advice that she was unaware why the Applicant’s belonging had been boxed and, most importantly, the clear indication by the Respondent in its 18 August 2014 letter, the 18 August 2014 conversations and the 26 August 2014 meeting that it wished to engage in consultation about the means of avoiding or mitigating adverse effects on the Applicant, including by exploring redeployment options.

[44] The Applicant and her representative (unsurprisingly, given the Applicant’s position), focussed entirely on a financial payment to augment the Applicant’s redundancy entitlements in the meetings of 26 August 2014 and 4 September 2104. The payment of additional monies in relation to a redundancy was one means of mitigating the adverse effect of the redundancy of the position she occupied. That proposal was considered by the Respondent and rejected for the reasons given by Mr Redford. 28

[45] Whilst I have no doubt that the Applicant, at a difficult time, considered the consultation processes of the Respondent to be a “sham”, that view is not objectively substantiated by the evidence.

[46] I am satisfied that the Respondent genuinely sought to discuss with the Applicant and her union the effect of removing the position of Reception and Scheduling Co-ordinator, the likely effects upon her and measures to avert or mitigate the adverse effects. The Respondent did all that it could to meet its obligation to consult under the Award. No matters were raised by the Applicant or her representative in relation to the changes for its consideration, save for the proposition of an additional payment upon termination on redundancy grounds which was considered by the Respondent.

[47] I am also satisfied that the Respondent, in its 18 August 2014 letter to the Applicant provided, in writing to the Applicant, all relevant information about the restructure including the nature of it, the expected effects on the Applicant and any other matters likely to affect employees.

[48] The Respondent did not, however, provide the Applicant’s representative with the 18 August 2014 letter which provided relevant information about the restructure. The Applicant submitted that, as a result, the Respondent had not complied with its obligation under clause 8.1 of the Award to consult about the redundancy.

[49] The absence of written advice of the relevant information occurred in circumstances, where at the time the 18 August 2014 letter was sent to the Applicant, the Respondent was unaware as to whether the Applicant had taken up Ms Walsh’s suggestion to bring a representative to meetings within the consultation process. The Respondent suggested representation and dealt with the Applicant’s representatives and the agenda for the 26 August 2014 meeting which clearly indicated that the purpose of the meeting was to discuss the matters in the 18 August 2014 letter.

[50] In Hanna Tyszka v Sun Health Foods Pty Ltd, 29 Foggo C found that there was adherence to the consultation clause of a relevant Agreement, notwithstanding the failure of an employer to provide relevant information regarding the nature of the changes proposed which was not put in writing to the relevant employees or their union. The decision of Foggo C was appealed wholly on the point that the Commissioner had erred by not finding that s.389(1)(b) was not met due to the failure to provide the relevant information in writing. The appeal was dismissed,30 for the reasons given in transcript:

“The commissioner addressed this issue and found that there had been general compliance. There was no error in the commissioner’s finding. The lack of provision of materials, in writing, did not, in our view, render the consultation envisaged by clause 26 of the agreement ineffective, and it was upon that that Mr Dircks hinged his submission.

In our view, the requirements of section 389 subsection (1) subsection (b), as was said in the Ulan Mining 31 case at paragraph 32, are met if there has been general compliance with award or enterprise agreement provisions regarding consultation.”32

[51] In circumstances where the Respondent provided the relevant information in writing to the Applicant, progressed the consultation process by explicit reference to the written advice to the Applicant and consulted with the Applicant and her representatives to the extent it was able in light of the non-engagement of the Applicant and representatives, I am satisfied that the Respondent consulted in accordance with clause 8.1 of the Award, notwithstanding the failure to provide the relevant information regarding the nature of the changes in writing to the Applicant’s representatives.

[52] I find that the Respondent did comply with its obligation in the Award to consult about the redundancy, as required by s.389(1)(b) of the Act.

Redeployment

[53] I find that the Respondent did consider redeployment options but was unable to identify any. Whist the Applicant asserted that there were other positions to which the she could have been redeployed with suitable training, I am not satisfied on the evidence that there were, at the time of the dismissal, suitable positions to which the Applicant could have been reasonably redeployed.

[54] Section 389(2) of the Act provides that 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 . . . the employer’s enterprise; . . . or the enterprise of an associated entity of the employer.

[55] In Technical and Further Education Commission T/A TAFE NSW v Pykett , 33 a recent Full Bench gave consideration to s.389(2) of the Act, deciding:

● “The question is whether redeployment within the employer’s enterprise or an associated entity would have been reasonable at the time of dismissal”; 34

● Relevant considerations of the question of whether redeployment within the employer’s enterprise or an associated entity would have been reasonable at the time of dismissal including 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 which is offered” [Ulan Coal Mines Ltd v Honeysett, (2010) 199 IR 363]. 35

● For the purposes of s.389(2) the Commission must find, “on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding . . . the facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee”; 36

● “If an employer wishes to rely on the ‘genuine redundancy’ exclusion then it would ordinarily be expected to adduce evidence as to . . . (iii) whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employer . . . The evidence in relation to (iii) would usually include canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee”; 37 and

● “A finding that there was a job, a position or other work to which [the employee] could have been redeployed . . . is a necessary step in reaching the conclusion that it would have been reasonable in all the circumstances for [the employee] to be redeployed within the [employer’s] enterprise. 38

[56] In respect of s.389(2), the Applicant submitted that the Respondent had not explored redeployment options in an “honest and responsible manner”, 39 placing the onus on the Applicant to identify redeployment options. It submitted that there were a number of redeployment options identified in the evidence of Ms Ruben:40

● replacement of a full-time temporary employee occupying a position in the Finance and Operations Team;

● a Data Services Assistant position, which was filled by the Respondent on 28 July 2014 on a 12 month contract;

● a position of People Services Officer which became vacant on 4 August 2014, was filled by a temporary employee who has since left the position; and

● reception relief work rostered among Administrative Staff.

[57] The evidence was that the Respondent did consider redeployment options, concluding that there were no reasonably suitable positions to which the Applicant could be redeployed before dismissing the Applicant due to redundancy. 41 I am satisfied that the Respondent took steps to identify other work which could be performed by the Applicant. The position was not one of the Respondent doing nothing more than placing the onus on the Applicant to identify redeployment options. Rather, the evidence was that the Respondent itself considered redeployment options and, in addition, invited the Applicant to identify any options, for discussion and consideration by the Respondent.

[58] I am satisfied that there were no alternative positions into which it would have been reasonable in all the circumstances for the Applicant to have been redeployed within at the time of the dismissal.

[59] Whilst Ms Ruben identified four redeployment options, she did so without any knowledge of the skills of the Applicant 42 and shed no light on that consideration as to whether redeployment within the Respondent’s enterprise or an associated entity would have been reasonable at the time.

[60] Of the specific redeployment options raised by the Applicant, through Ms Ruben’s evidence, the Finance and Operations Team position was filled on 14 April 2014 43 and the Data Services Team position was filled on 28 July 2014. Neither position was available at the time of the dismissal. In any case, the evidence of Ms Webb was that the Applicant lacked the required skills to undertake those positions44 (and was otherwise unsuitable). There was no evidence that the Applicant had the relevant skills.

[61] The People Services position became vacant in or about August 2014, 45 around the time of the dismissal and was filled by a casual, pending consideration of the skills sets required in the area in the longer term. The evidence of Ms Webb was that the Applicant lacked the required skills and qualifications to undertake that position46 (and was otherwise unsuitable). There was no evidence that the Applicant had the relevant skills.

[62] The final redeployment option identified by the Applicant – reception relief work rostered among Administrative Staff – was to the extent of one and a half hours per week. That work was part of the Applicant’s previous role, re-assigned to other staff members and did not provide a reasonable redeployment option.

[63] I am not satisfied that any alternate position into which the Applicant could have been reasonably redeployed was available at the time of her dismissal.

[64] I am not satisfied that it would have been reasonable in all the circumstances for the Applicant to be redeployed within the Respondent’s enterprise.

[65] Conclusion

[66] The Respondent no longer required the Applicant’s job to be performed by anyone because of changes in its operational requirements. The Respondent complied with its obligation under clause 8.1 of the Award to consult the Applicant about the redundancy. No alternate position into which the Applicant could have been reasonably redeployed was available at the time of her dismissal.

[67] The dismissal was a case of genuine redundancy within the meaning of s.389 of the Act and, as a result, the Applicant was not unfairly dismissed within the meaning of s.385 of the Act.

[68] The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

T O’Laughlin for the Applicant.

S Fitzgerald of counsel for the Respondent.

Hearing details:

2014.

Melbourne:

December 8 and 9.

 1   Transcript, at para 668.

 2   Exhibit UV6, at para 15.

 3   Exhibit UV3, Attachment EW-1.

 4   Exhibit UV3, Attachment EW-4.

 5   MA000002.

 6   Exhibit UV3, at para 7.

 7   Transcript, at paras 668 and 769-770.

 8   Exhibit UV6, at para 15 and Transcript, at para 843.

 9   Exhibit L1, at para 8.

 10   Exhibit UV6 (erroneously marked UV5 in the proceedings, but corrected to UV6).

 11   Exhibit UV6, at para s 17–18.

 12   Exhibit L1, at paras 7–8.

 13   Transcript at para 87.

 14   Exhibit UV3, Attachment EW-1.

 15   Exhibit UV3, at paras 15–16 and Exhibit UV5.

 16   Exhibit L1, at paras 11–13.

 17   Exhibit L5, at para 6.

 18   Exhibit UV3, Attachment EW-2.

 19   Exhibit UV 4, Attachment EW-5.

 20   Exhibit UV3, at para 20.

 21   Exhibit L1, at para 17.

 22   Exhibit L4, at paras 6–11.

 23   Exhibit L2, at para 10.

 24   Exhibit UV3, Attachment EW-3.

 25   Exhibit UV3, Attachment EW-4.

 26   Exhibit L1, at paras 15–16.

 27   There was no evidence as to who boxed the personal belongings or why. Ms Webb did not direct anyone to do it – see Exhibit UV4, at para 13.

 28   Exhibit UV3, at para 24.

 29   [2010] FWA 1781.

 30   PR998332.

 31   Ulan Coal Mines Limited v Horwarth and Others,[2010] FWAFB 3488.

 32   Transcript in C2010/3328, at paras 291–292.

 33   [2014] FWCFB 714.

 34   [2014] FWCFB 714, at para 35.

 35   [2014] FWCFB 714, at para 35.

 36   [2014] FWCFB 714, at para 36.

 37   [2014] FWCFB 714, at paras 36–37.

 38   [2014] FWCFB 714, at para 40.

 39   Exhibit L3, at para 34.

 40   Exhibit L2, at paras 15–16.

 41   Exhibit UV3, at para 23.

 42   Transcript, at paras 349 and 430.

 43   Exhibit UV4, at para 16.

 44   Exhibit UV4, at paras 19 and 23.

 45   Exhibit UV4, at para 24.

 46   Exhibit UV4, at paras 24 and 28.

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