Lisa Steward v GrainCorp Operations Limited T/A GrainCorp
[2018] FWC 3077
•1 JUNE 2018
| [2018] FWC 3077 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lisa Steward
v
GrainCorp Operations Limited T/A GrainCorp
(U2017/13515)
DEPUTY PRESIDENT BULL | SYDNEY, 1 JUNE 2018 |
Application for an unfair dismissal remedy. Whether dismissal was a case of genuine redundancy, redeployment options.
[1] Ms Lisa Steward (the applicant) has made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of her employment with GrainCorp Operations Limited T/A GrainCorp (the respondent). 1
[2] The applicant was advised that her position as Human Resources Advisor (HR Advisor) in the respondent’s Oils Business Unit would be made redundant.
[3] In response to the applicant’s claim, the respondent has raised a jurisdictional objection on the basis that the applicant’s employment was terminated on the ground of genuine redundancy.
Relevant statutory provisions
[4] Section 394(1) of the Act provides that a person who has been dismissed may apply to the Commission for an Order under Division 4 of the Act granting a remedy for unfair dismissal.
[5] Section 385 of the Act provides as follows:
“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.”
(My underline)
[6] Section 396 of the Act requires that before considering the merits of an application for an unfair dismissal remedy the FWC must decide a number of threshold issues.
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
(My underline)
[7] One effect of s.396 is that if a dismissal is the result of a genuine redundancy as put by the respondent, the Commission is unable to determine whether the dismissal was harsh, unjust or unreasonable. 2
Genuine redundancy
[8] Section 389 of the Act sets out the meaning of ‘genuine redundancy’ as follows::
“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.”
[9] Accordingly, genuine redundancy is not restricted to an employee’s job no longer being required, but requires consultation in accordance with any applicable industrial instrument. A dismissal will not be a genuine redundancy if redeployment would have been reasonable in all the circumstances.
[10] The Explanatory Memorandum to the Fair Work Bill 2008 states the following in respect of s.389 of the Act:
“Clause 389 – Meaning of genuine redundancy
1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.
1547. Paragraph 389(1)(a) provides that person's dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, project or undertaking.
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 employees;
• 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.
1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise.
1550. Paragraph 389(1)(b) provides that it will not be a case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.
1551. Subclause 389(2) provides that dismissal is not a case of genuine redundancy if it would have been reasonable in all circumstances for the person to be redeployed within the employer’s enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).
1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.
1553.Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.”
(My underline)
Applicant’s submissions
[11] The applicant submitted that her termination of employment did not arise from a genuine redundancy and was a case of unfair dismissal.
[12] In addition to her unfair dismissal application (Form F2), the applicant tendered a witness statement, an outline of submissions 3 and provided a further outline4 on the day of the hearing. The applicant gave oral evidence and was subject to cross-examination.
[13] In the first instance the applicant submitted that her dismissal was not a genuine redundancy on the basis that her position still existed. However despite this assertion, the applicant also submitted that the duties of her role had been distributed amongst other employees. 5
[14] The applicant further submitted that it was reasonable that she be redeployed elsewhere in the business. She stated that at the meeting on 24 November 2017, at which she was advised of her redundancy, she requested to be redeployed into the role of Human Resources Business Partner (HRBP) within the Malt Business Unit (HRBP in Malt). This was a position which was about to be advertised at the time. Having made this request the applicant says she was advised by Ms Jennifer Howard, HRBP for Corporate Functions including Human Resources Business Units across Australia, New Zealand and overseas that she did not have the skills or experience to perform the role, however she could still apply.
[15] The applicant submitted that while she was classified as a HR Advisor she performed the duties of a HRBP. She submitted she had been told this by her previous manager Ms Christy McKay, and that Ms McKay had obtained approval from Mr Phillip Caris, General Manager Human Resources, to change the title of her role to that of a HRBP to reflect the work she was doing. At the time of the hearing Ms McKay was no longer an employee of the respondent. Ms Steward stated she did not call Ms McKay as a witness due to legal action she had initiated against Ms McKay.
[16] The applicant also submitted that her dismissal was not a genuine redundancy because she was in fact already performing the role of a HRBP.
[17] The applicant further submitted that the respondent relied upon an old resume when it made its redeployment decision in relation to her employment.
[18] The applicant submitted that it would have been reasonable all the circumstances for her to have been redeployed into a temporary parental leave role that had existed in New South Wales. The respondent contended that this role had been filled on 13 November 2017, prior to the decision being made to make the applicant redundant. The applicant did not accept this, arguing the incumbent did not sign her ‘offer’ until the day before the applicant was notified of her redundancy.
[19] The applicant further submitted that her redundancy was due to reasons related to having exercised a workplace right to make a complaint. 6 During cross examination of Mr Caris the applicant put that a reason she was made redundant was that she had recommended to her employer that there be an investigation into a particular health and safety incident.
[20] The applicant submitted that she bought forward her termination date because Ms Katherine Ivosevic, then Human Resources General Manager of the respondent’s Oils and Malt Business Units broke her trust when, two weeks prior to the applicant being notified of her redundancy and in response to a direct question, Ms Ivosevic told the applicant that her role was not at risk of being made redundant.
[21] The applicant devoted some time in her claim to describing how the redundancy process was unfair, including the respondent’s alleged failure to genuinely consult. The applicant relied on her own evidence and did not call any other witnesses to support her application.
Respondent’s submissions
[22] The respondent submits that it has complied with the requirements set out in ss.389(1) and (2) of the Act and therefore its defence of a genuine redundancy has been made out. 7 On this basis the respondent says the applicant’s claim cannot proceed and must be dismissed.
[23] The respondent submits that the applicant’s position of HR Advisor in the Oils Business Unit of the respondent’s business in West Footscray Victoria was no longer required to be performed by anyone. While some duties previously performed by the applicant were distributed to other HR officers based in Sydney and Victoria, the HR Advisor role in West Footscray Victoria no longer exists. 8
[24] The decision to make the applicant’s position redundant was due to business needs and operational requirements. The decision was announced on 24 November 2017, with the applicant’s termination to take effect on 22 December 2017. The respondent offered to extend the applicant’s employment to 23 January 2018; however the applicant requested to cease her employment early and with the respondent’s consent, the applicant left her employment on 29 November 2017.
[25] It was submitted that at the time of the announcement on 24 November 2017 that the applicant’s position was to be made redundant there were no suitable and available vacancies that the applicant could be redeployed into considering her skills and experience.
[26] The respondent disputes the applicant’s assertion that there were two roles into which she could have been redeployed.
[27] The position of HR Advisor in Sydney was said to be a temporary vacancy arising from the then incumbent embarking on maternity leave. The position was advertised and filled prior to the decision and announcement of Ms Steward’s redundancy. This position was never available for the applicant to be redeployed into as the vacancy did not in exist at the time of the applicant’s redundancy, having been filled on 13 November 2017.
[28] The respondent says the applicant did not show any interest in, nor was she suitably qualified for the role of a HRBP. The respondent stated that they were aware of Ms Steward’s skillset without the need for an updated resume.
[29] The respondent submitted that it had sought to retain the applicant by allowing her to work out her notice period and by extending her termination date to 23 January 2018.
[30] It was contended that the applicant’s decision to bring forward the date of her termination quashed any opportunity for the respondent to find redeployment opportunities which may have arisen during the period between the notification of the applicant’s redundancy on 24 November 2017, and the extended termination date of 23 January 2018.
Evidence of Ms Howard
[31] The respondent initially called Ms Howard as its only witness. Ms Howard filed two witness statements 9 and was subject to cross-examination by the applicant. Ms Howard advised that around 22 September 2017, following a reorganisation of Senior Human Resources positions, Ms Ivosevic was appointed General Manager Human Resources with the Oils Business Unit.
[32] Around the beginning of November 2017, the Group General Manager for the Oils Business Unit, Mr Sam Tainsh, announced an ‘Oils Recovery Plan’ in response to a challenging business environment for GrainCorp Foods. On 1 November 2017 Mr Tainsh sent out a Business Update 10 to the GrainCorp Oils team highlighting the financial imperatives that were facing the team. Mr Tainsh’s update stated that margins had reduced dramatically as competitors in the market fought for business. Over the previous three years GrainCorp had invested over $200 million into improving the Foods business. However given the market environment, performance had slipped over the same period and in 2017 Foods was expected to report an EBIT11 loss. The update stated it was not sustainable for any business to continue on such a path.
[33] Under the heading ‘People changes’, the Business Update stated that as part of these changes unfortunately some roles had become redundant predominantly in the sales area, however there would also be some support roles from other parts of the business affected. It stated that this process was associated with the ‘move to streamline Oilseeds and Foods into a single Edible Oils team’. It was noted that those employees affected had been spoken to.
[34] On 24 November 2017, following the announcement of the ‘Oils Recovery Plan’, Mr Caris announced a reorganisation resulting in several positions becoming redundant in the Human Resources area, including the applicant’s position.
[35] On the same day a meeting was arranged between the applicant, Ms Ivosevic and Ms Howard who participated by telephone.
[36] Ms Ivosevic explained to the applicant that her role as HR Advisor Victoria had been made redundant as part of a business restructure and, in the absence of alternative employment with GrainCorp, her employment would cease on 22 December 2017, being the end of her notice period. Despite this, the applicant was offered an extension of her employment until 23 January 2018, as it was acknowledged that finding a new role over the Christmas period would be difficult. 12
[37] Ms Howard stated that Ms Ivosevic advised the applicant of a new senior level HRBP role in Victoria which was to be created. Ms Ivosevic also indicated that while the respondent did not identify this as a direct redeployment opportunity for the applicant, she was entitled to apply for the role and would be provided with a copy of the job description if she wished
[38] Ms Howard also advised the applicant that during the extended period until 23 January 2018, the respondent would work with the applicant to determine whether there were any vacant roles that she would like to apply for and help set up interviews with managers. 13 Ms Howard confirmed that at the time there were no direct redeployment opportunities identified.
[39] Ms Howard says that on 28 or 29 November 2017, 14 Ms Howard telephoned the applicant to discuss whether she was interested in any vacant positions in the Careers Newsletter. Ms Howard’s evidence was that during the conversation the applicant said words to the effect that she was not interested in applying for any vacant roles. 15
[40] When Ms Howard asked the applicant whether she would like to see the job description for the HRBP role in Victoria the applicant responded that she could access the HR Document job description herself if she wanted to look at it over the following weeks. The applicant did not request any further information on the anticipated HRBP role in Victoria for the Oils Business Unit in West Footscray. 16
[41] Ms Howard also stated that during their conversation on 28 or 29 November 2017, the applicant questioned whether her redundancy had anything to do with a complaint she made in July 2017, in relation to the length of a HR Conference. Ms Howard replied stating that she was unaware of the complaint and the redundancy was a result of a legitimate business restructure. Ms Howard’s evidence was that this reply appeared to satisfy the applicant at the time. 17
[42] Also during this telephone conversation between the applicant and Ms Howard, the applicant commented that Ms Maria Carbone, a HR Advisor in Sydney, had been redeployed into the role of HR Advisor for Oils when her position had been made redundant. The applicant stated that she should have had an opportunity to apply for the HR Advisor for Oils role. Ms Howard’s response was that the role had been filled a few weeks earlier through the normal recruitment process on a secondment basis and that the HR Advisor had not been redeployed into that role because of any redundancy. Ms Howard further stated that at the time that this position became available on secondment basis, she was unaware that Ms Steward’s position would become redundant in the near future. 18
[43] Ms Howard explained that the HR Advisor role that the applicant was referring to had been filled on a temporary parental leave secondment basis which had followed the normal recruitment and interview process. The position had been removed from the Careers Newsletter on around 9 November 2017, after the position was verbally offered to Ms Carbone, two weeks before the applicant’s position was made redundant. Accordingly, the position did not appear in subsequent editions of the Careers Newsletter on 16 and 23 November 2017. The documentation relevant to confirming these dates, including the letter of appointment to Ms Carbone dated 13 November 2017, were attached to Ms Howard’s witness statement of 7 March 2018. 19
[44] In respect of the HRBP in Malt, Ms Howard stated that in addition to having shown no interest in the position, the applicant did not have the necessary experience to meet the requirements of the role. 20
[45] On 28 November 2017, the applicant sent an email to Ms Ivosevic requesting to finish her employment immediately, stating that she would like to be advised by lunchtime if this could occur, as she was unwell due to the stress of the redundancy situation and wanted to return home to Sydney at the earliest opportunity. 21
[46] Following the applicant’s request to finish her employment earlier than previously advised, the applicant was paid her redundancy entitlements and, as a gesture of goodwill, a further 5 weeks’ pay in lieu of working out her notice period.
[47] The role of HRBP in Malt was subsequently advertised internally on 30 November 2017.
[48] Ms Howard stated that on 19 January 2018, an employee resigned from her position as Leadership Development Facilitator based in Sydney, a role the applicant had previously performed. Ms Howard stated this role would have been a suitable position for the applicant, however as she had ceased her employment on 29 November 2017 at her own request, this potential redeployment opportunity was therefore not available.
[49] Ms Howard also stated that the role of HRBP in Malt was not the same as the applicant’s role of HR Advisor in Victoria. Ms Howard explained that the role of a HRBP was a considerably larger and more senior position than that of a HR Advisor and her witness statement explained the differences in roles. 22 Ms Howard stated that the role of the applicant prior to her redundancy was that of a HR Advisor not a HRBP.
[50] Ms Howard’s evidence was that the applicant’s position of HR Advisor in West Footscray, Victoria has not been replaced; however some of the duties previously performed by the applicant were distributed to several other HR officers based in Sydney and Victoria.
Evidence of Mr Phillip Caris
[51] Mr Caris, the respondent’s Group General Manager Human Resources, was not initially called to give evidence on behalf of the respondent. However during the hearing it became evident that the Commission was not apprised of sufficient evidence relating to how and when the decision to make the applicant’s position redundant came about. On this basis the respondent was invited by the Commission to provide that evidence and subsequently Mr Caris gave evidence as to how the redundancy decision was made. Mr Caris was cross examined by the applicant.
[52] Mr Caris’ evidence was enlightening in that for the first time it was revealed that the proposal to make the applicant’s position redundant was put forward by Ms Ivosevic who was not called to give evidence. Ms Ivosevic had approached Mr Caris about the restructuring of personnel in the Oils Business Unit and proposed that the HR Advisor role be made redundant. Mr Caris stated that after ‘pressure testing’ the idea he approved the proposal.
[53] Curiously, Mr Caris stated that there was no written documentation which accompanied this proposal and final decision. He was unable to recall the precise date Ms Ivosevic had approached him, but believed it was only a few days before the decision to make the applicant redundant was made. Mr Caris did however send an email 23 on 24 November 2017, to all HR personnel advising of the redundancy of the applicant and others in response to a demonstrated need to provide for a sustainable business into the future.
[54] Mr Caris’ email to all HR staff was sent after the affected people had been spoken to and included the following paragraphs:
“As you would all know, FY18 will be a challenging period for part of our business and our business units are responding appropriately with plans to manage costs to ensure we have a sustainable business for the future. Both the Oils and Grains business units have recently reviewed and made changes to their organisation structure to respond to these challenges. As a support function to the business, it’s also important for us to ensure our structure supports the achievement of the business strategy and objectives whilst considering and being responsible to the business climate we are in.
The HR senior leadership team has recently reviewed our HR structure and will be making some changes. There are a number of people affected as part of these changes and unfortunately some roles will be removed from the structure. We have now spoken to all the people affected and we are providing them with full support including the possibility of redeployment where suitable roles exist.
Attached is a new HR organisation chart, a summary of the changes are below-
The role of HR Advisor, Grains will be removed from the structure moving forward.
…
The role of HR Business Partner based in Sydney … will be removed from the structure.
The role of HR Advisor currently performed by Lisa Steward will be removed from the structure effective December 22, 2017. A HR Business Partner role in Victoria will be created to service the Malt business in Australia and New Zealand.
…
Responding to business challenges is never easy and some tough decisions have been made which mean there are some good people leaving our business. I would like to thank those leaving the organisation for their respective contributions and wish them well in their future endeavours. I would ask that you all please offer your support to your colleagues as we transition through these structural changes.” 24
(My underline)
[55] In cross examination Mr Caris stated that the decision to make the applicant’s position redundant was based solely on operational reasons and he refuted suggestions that his decision in any way related to a previous complaint the applicant had made.
Conclusion
[56] The applicant submits that she was not subject to a genuine redundancy as defined under the Act as per s.389 based on:
• her position still being required to be performed;
• the employer’s failure to properly consult about the redundancy;
• the failure by the employer to redeploy her into another position; and
• the redundancy related to feedback provided and a complaint she had previously made 25
Is the applicant’s job still required to be performed?
[57] The Act states a person’s dismissal is a genuine redundancy where “the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; ….” The onus rests with the employer to prove that, on the balance of probabilities, the redundancy was due to changes in operational requirements. 26
[58] The definition of redundancy as articulated by Bray CJ in R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Op Ltd, is often cited as the classic description of redundancy. His Honour made the following remarks in relation to the concept:
“[T]he concept of redundancy in the context we are discussing seems to be simply this, that a job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him, but because the employer no longer wishes the job the employee has been doing to be done by anyone.” 27
[59] In Jones v Dept of Energy and Minerals 28Ryan J stated when describing how a redundancy may take place:
“However, it is within the employer's prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. It is inappropriate now to attempt an exhaustive description of the methods by which a reorganisation of that kind may be achieved. One illustration of it occurs when the duties of a single, full-time, employee are redistributed to several part-time employees. What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organization, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant in the sense in which the word was used in the Adelaide Milk Co-operative case.”As Beazley J observed in Quality Bakers of Australia Ltd v Goulding:
“A redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed; or where the employer wishes to amalgamate jobs ....” 29
[60] The applicant relied on the decision of Commissioner Ryan in Amnon Rosenfield v United Petroleum Pty Ltd T/A United Petroleum 30 in submitting that as the duties were in part distributed within the employer’s business her position was not genuinely redundant. In that case a ‘redundant’ position was given in its entirety to another employee; the facts are different in this matter. No single employee was exclusively given the role previously carried out by the applicant.
[61] The respondent referred to the decision of the Full Court of the Federal Court in Dibb v Commissioner of Taxation 31 holding that an employee may still be genuinely redundant when there are aspects of the employee’s duties still being performed by other employees.
[62] The circumstances of that matter involved the employer re-distributing the duties previously performed by its District Managers and at the same time, adding further duties. The job, described by reference to its duties as previously performed, ceased to exist. The employer no longer wished to have that job performed by anybody. The work was to be differently distributed. Those circumstances appear similar to the present application before the Commission.
[63] The existing case law is clear that an employee may still be genuinely made redundant when there are aspects of the employee duties still being performed by other employees; this is consistent with the Explanatory Memorandum extracted above. In Kekeris v A. Hartrodt Australia Pty Ltd T/A A. Hartrodt 32, SDP Hamberger observed:
“When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of the two positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the Explanatory Memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of the previous job persist but are redistributed to other positions. The test is whether the job performed by the applicant still exists. 33
[64] The applicant submitted in her Outline of Submissions at [8] that the duties of her role of HR advisor in Victoria had been distributed among other employees.
[65] I am satisfied that the applicant’s job was no longer required to be performed by anyone because of changes in the respondent’s operational requirements. The fact that some of the duties applicant’s role have been distributed to other employees does not detract from the role having been made redundant. I accept Ms Howard’s evidence the applicant’s role has not been replaced. 34
[66] The applicant also raised a further argument that her role was not redundant because although her role title was that of HR advisor, she was in fact performing the role of HRBP in Malt. In her submissions, in relation to the role of HRBP in Malt, the applicant states that ‘although the title is different, the role is exactly the same as the role that was made redundant and paid at the same salary as mine’.
[67] I am unable to accept that the applicant actually performed the role of a HRBP. She did not provide evidence to support this assertion and the evidence of Ms Howard clearly sets out significant differences between the role of HRBP and HR advisor.
Consultation re: award/agreement coverage
[68] The applicant relied upon alleged failures to fully consult her about her redundancy in arguing that her dismissal was not a genuine redundancy.
[69] Pursuant to s.389(1)(b), the obligation for the employer to consult is in relation to consultation obligations contained in a modern award or enterprise agreement that applied to the employment.
[70] No party submitted that an award or enterprise agreement covered the applicant’s employment. It was submitted by the respondent that the applicant’s position of HR Advisor is not covered by any modern award and that the Miscellaneous Award 2010 excludes human resources specialists from its coverage. 35
[71] There is no enterprise agreement applicable to the applicant’s employment and on this basis the respondent submits that the statutory obligation to comply with any obligation in a modern award or enterprise agreement to consult about the redundancy has no application. Despite having made this submission the respondent also submits that it did consult with the applicant regarding her redundancy.
[72] I accept the respondent’s position on award/agreement coverage (which was not contested by the applicant) and find that the obligation under s. 389(1)(b) is not invoked, and thus does not form part of the Commission’s assessment in this matter as to whether the applicant’s termination of employment was a genuine redundancy.
Redeployment
[73] Section 389(2) requires the Commission to be satisfied that it would not have been reasonable for the applicant to have been redeployed within the employer’s enterprise or that of an associated entity of the employer, if the defence of genuine redundancy is to be made out by the employer.
[74] In essence the applicant claims that she could have been appointed to the position of HRBP in Malt, or to the temporary parental leave position of HR Advisor in Sydney.
[75] The applicant has made what appear to be inconsistent statements about the information she was given at the meeting on 24 November 2017. 36 Precisely what was said at the meeting on 24 November 2017 about the role of HRBP in Malt is contested, although Ms Howard’s evidence that the applicant stated in their subsequent telephone conversation that she was not interested in applying for any vacant positions was not contested. It is difficult to accept the applicant’s argument that it would have been reasonable for her to be redeployed to the HRBP role when she did not apply for the position and had indicated she was not interested in applying for vacant positions.
[76] Further, I accept Ms Howard’s evidence that the position of HRBP was a more senior position than that of HR Advisor and that had the applicant applied, she would have lacked the employee relations experience to be redeployed into the role in lieu of more suitable applicants.
[77] I note a copy of the applicant’s resume is annexed to the first witness statement of Ms Howard. The applicant says it is from the time she commenced employment with the respondent in May 2016. On that basis the applicant says it was inappropriate for Ms Howard to use a resume that was out of date in terms of her skills and experience to consider redeployment options. The respondent submitted the date of the applicant’s resume was irrelevant. I note there is no evidence that Ms Howard considered the applicant’s resume when considering redeployment opportunities.
[78] The HR Adviser parental secondment position based in Sydney was not a position that arose following the respondent’s decision to make the applicant’s position redundant. Despite the lack of any supporting documentation I accept the evidence of Mr Caris that the decision to make the applicant redundant was made only a matter of days prior to the applicant being notified on 24 November 2017. The documentation attached to Ms Howard’s witness statements 37 confirms this vacancy was offered to another employee in writing on 13 November 2017.
[79] The evidence available to the Commission demonstrates that it would not have been reasonable to redeploy the applicant in the circumstances which existed at the time. Ms Howard’s evidence was that the respondent did not have any suitable alternative employment opportunities for the applicant at the time of the decision to make her job redundant, but efforts were to be made to source any alternative positions during the period between notification of the applicant’s redundancy and the proposed termination date.
[80] On the evidence of Ms Howard, which was not contested in any serious way, any efforts by the respondent to mitigate the adverse effects of the applicant’s redundancy were thwarted by the applicant when she requested to be released early and have her termination of employment date brought forward to 29 November 2017. This led to a very short period between Friday 24 November 2017 and Wednesday 29 November 2017, where redeployment opportunities could be explored by the employer.
[81] The applicant’s submissions included what she alleged she had been told by others, however no witnesses were called to support any of the hearsay evidence that related to what others had told her.
[82] In any event all these assertions were refuted by the respondent, and as they were not supported by any direct evidence they cannot be accepted by the Commission as established factual events.
[83] I accept that the applicant damaged her own chances of being redeployed by bringing forward her termination date to 29 November 2017, as at least one identifiable opportunity for redeployment arose in the period up until 23 January 2018.
[84] The applicant contended that her redundancy was not lawful as it resulted from her exercising a workplace right. This is not a consideration in ascertaining whether the dismissal was a genuine redundancy as per s.389 of the Act. On the employer satisfying the Commission that the dismissal was the result of the job no longer being required to be performed, that any consultation obligations have been met and that it was not reasonable in all the circumstances that the applicant be redeployed, the Commission’s enquiry ceases. As stated by Hatcher VP in Tebikenibeu Low v Menzies Property Services Pty Ltd 38
“[16] It is not the function of the Commission, in determining whether a dismissal is a case of genuine redundancy, to form a view about the merits of the decision to make a position redundant. Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.”
[85] On the basis of the conclusions I have reached that the ‘genuine redundancy” defence as per s.385(d) and s.389 of the Act has been made out I am therefore bound to dismiss the application for want of jurisdiction.
[86] An Order [PR607568] to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Ms L Steward on her own behalf.
A Umansky on behalf of the respondent
Hearing details:
2018.
Sydney:
23 April
Printed by authority of the Commonwealth Government Printer
<PR607567>
1 The original application named GrainCorp Trading as GrainCorp Group HR Division as the employer, this was amended by consent at the hearing as per s.586(a) to name GrainCorp Operations Limited trading as GrainCorp as the respondent
2 UES (Int’L) Pty Ltd v L Harvey[2012] FWAFB 5241
3 Exhibit A1
4 Exhibit A2
5 Outline of submissions, 10 April 2018, at [8]
6 Exhibit A1, in summary of argument
7 Respondent’s Outline of Submissions 20 April 2018
8 Witness Statement of Ms Howard, 20 April 2018, Exhibit R2 at [6]
9 Witness statement of Ms Howard 7 March 2018 and 20 April 2018 Exhibits R1 and R2
10 Exhibit R1, Annexure JH5
11 Earnings before interest and tax
12 Exhibit R1 at [13]
13 Ibid
14 Although nothing turns on it, I note that given the email sent by the applicant to Ms Ivosevic (set out further below) it is likely this conversation took place on 28 November 2017.
15 Exhibit R1 at [16]
16 Exhibit R1 at [20]; Exhibit R2 at [9.6]
17 Exhibit R1 at [17]
18 Exhibit R2 at [10.2]
19 Exhibit R1 at Annexures JH11-JH14.
20 Exhibit R1 at [20]
21 See Exhibit R1, Annexure JH16
22 Exhibit R2 at 9.2 and 9.3
23 Exhibit R1, Annexure JH6
24 Exhibit R1, Annexure JH6
25 Exhibit A1 at [10] and summary at end of statement
26 Keiselbach v Amity Group Pty Ltd (unreported, AIRC, Hamilton DP, 9 October 2006) PR973864 at [34].
27 (1977) 16 SASR 6 at 8
28 (1995) 60 IR 304
29 (1995) 60 IR 327 at 332
30 [2012] FWA 2445
31 (2004) 136 FCR 388 at 404 - 405
32 Kekeris v A. Hartrodt Australia Pty Ltd T/A A.Hartrodt[2010] FWA 674
33 Ibid [27]
34 Exhibit R2 at [6]
35 Clause 4.2
36 In her witness statement at [22] the applicant acknowledges she was informed the role of HRBP in Malt was to be advertised, and that she would be able to apply for it, although she may not have the experience to be successful in obtaining it. However in her written submissions at [19], the applicant denies ‘receiving any information at her redundancy meeting on 24 November 2013 other than an incorrectly dated Redundancy calculation’
37 Exhibit R1 and R2
38 [2014] FWC 7829
0