Lynda Pykett v Technical and Further Education Commission T/A TAFE NSW (No.5)

[2014] FWC 3177

[2014] FWC 3177

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lynda Pykett
v
Technical and Further Education Commission T/A TAFE NSW (No.5)
(U2012/14988)

COMMISSIONER MCKENNA SYDNEY, 4 JUNE 2014

Application for unfair dismissal remedy

[1] This application has been remitted to me following the decision of the Full Bench in Technical and Further Education Commission T/A TAFE NSW v L. Pykett[2014] FWCFB 714 (“Pykett (No 4)”), consequent upon an appeal which followed my earlier decisions in Pykett v Technical and Further Education Commission T/A TAFE NSW[2013] FWC 4982 (“Pykett (No 1)”), Pykett v Technical and Further Education Commission T/A TAFE NSW[2013] FWC 8196 (“Pykett (No 2)”) and Pykett v Technical and Further Education Commission T/A TAFE NSW (No. 3)[2013] FWC 8679 (“Pykett (No 3)”).

[2] Following the remit, I made further directions in relation to matters relevant to the remittal. In addition to lodging submissions relevant to those directions, the Technical and Further Education Commission T/A TAFE NSW (“the respondent”) unilaterally lodged a further submission outside the directions originally made by me following the remit which went to a new jurisdictional point concerning implied constitutional limitations, which had not been raised previously in the proceedings before me or on the appeal. Among various other cases, reference was made in the respondent’s submissions to Re Australian Education Union & Australian Nursing Federation; Ex Parte Victoria [1995] HCA 71 and United Firefighters Union of Australia v Country Fire Authority [2014] FCA 17. The respondent submitted it was an “unfortunate situation” of its own causing that there had been a delay in raising the new point, but the point, although arising late, nonetheless could not be disregarded as it goes to the Commission’s jurisdiction; and this is a matter where the Commission would be positively required or obliged to be satisfied as to jurisdiction. Lynda Pykett (“the applicant”) primarily submitted the respondent’s new point objecting to the application should not be permitted at this stage of the proceedings, even if put as being of a jurisdictional nature; and all the proceedings were conducted on the “shared basis” previously advanced.

[3] This application is not before me “at large”, as it were. I consider it would be inappropriate - reasonably self-evidently I would have thought - to step outside or beyond the scope of the remit from the Full Bench to me, which relevantly read at [54]: “We remit the matter to Commissioner McKenna to determine Ms Pykett’s application in accordance with our decision.”

[4] This case has had a long-running history of proceedings in a seemingly otherwise routine application for an unfair dismissal remedy by the applicant. I received written and oral submissions from the parties on the new point raised by the respondent, but, if I am wrong in relation to the scope of the remit, I have nonetheless otherwise concluded that the submissions for the applicant are to be accepted in relation to the considerations discussed in Metwally v University of Wollongong [1985] HCA 28 (“Metwally”), where this was said by the High Court:

“7. It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. ...”

[5] The respondent had the opportunity to raise any point it had wished to rely upon in a timely way at earlier stages of these proceedings. The High Court in Metwally referred to “most exceptional circumstances”, and, separately from the scope of the remit, no such circumstances arise here such as otherwise would lead me to depart from the ordinarily-applicable principles.

[6] I turn now to consider the matters put by the parties in relation to the remit from the Full Bench. The overview of the submissions is drawn primarily from the written submissions, which were also elaborated upon in oral submissions in the proceedings.

Submissions for the applicant

[7] Counsel for the applicant, Mr M Gibian, submitted the appeal was upheld on a “limited basis” and outlined a summary in that regard. In so doing, the applicant’s submissions noted the conclusion of the Full Bench at [40] that my decision in Pykett (No 1) “failed to make a finding that there was a job, a position or other work to which the applicant could have been redeployed”, but otherwise rejected the respondent’s submission that it was implicit there was no position to which the applicant could have been redeployed. The only error identified was there was no requisite finding that there was a job, a position or other work to which the applicant could have been redeployed, to be determined in light of the circumstances which pertained when the applicant was dismissed in October 2012 - assessed to the satisfaction of the Commission on the balance of probabilities. The Full Bench, the submissions continued, did not suggest that evidence as to an employer’s attempts to redeploy a dismissed employee would be irrelevant to s.389(2) of the Fair Work Act 2009 (“the Act”); rather, an employer wishing to rely on the “genuine redundancy” exclusion would be expected to adduce evidence canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee. Various of the submissions were expanded upon in the oral submissions by reference to the decision of the Full Bench in Pykett (No 4), including that my reasons at first instance did not contain a “sufficiently specific finding” of the type contained at [36] of the Full Bench decision. The submissions for the applicant posited that the respondent’s submission it was necessary to identify a specific, (then) existing job or position to which the applicant could have been redeployed was not accepted; rather, the submissions advanced on behalf of the applicant to the contrary effect were accepted by the Full Bench.

[8] Counsel submitted the Commission can be satisfied and make a finding, on the balance of probabilities, there was a job, a position or other work to which the applicant could have been redeployed at the time of her dismissal for reasons including the following:

• The evidence of at least three vacant positions of Technical Officer Scientific 1/2 at the Ultimo campus in Semester 2 in 2012 as well as other positions not being occupied by their substantive holders in which, it was submitted, the applicant could have been engaged to perform work around the date of termination of employment.



• The evidence that a number of the positions as Technical Officer Scientific 1/2 at the Ultimo campus were filled by casual agency staff engaged through labour hire companies, including evidence of the establishment list for October 2012 which demonstrated that four agency staff were engaged to undertake work in the nature of that performed as a Technical Officer Scientific 1/2. There can be no doubt, it was submitted, that the work involved in those positions existed and was required by the respondent at the relevant time.



• The evidence which demonstrated the substantive occupants of a number of other ongoing positions were not performing the work of those positions at the relevant time. The applicant, it was submitted, could have been engaged to perform the work in those positions rather than being dismissed.

[9] Counsel submitted the evidence to which he drew attention was evidence of jobs, positions or work (including in a collective sense) as a Technical Officer Scientific 1/2 - being the same classification and grade as the position formerly undertaken by the applicant prior to the abolition of her former position - which requisitely would have been reasonable for the applicant’s redeployment. The submissions continued there can be no suggestion the work undertaken in those positions was not appropriate for the applicant’s skills and experience or that there was any other reason why it would not have been reasonable for her to be redeployed into those positions or to perform that work.

[10] Counsel also drew attention to the evidence of positions at the respondent’s Meadowbank campus into which, it was submitted, the applicant reasonably could have been redeployed, including the positions of Operations Manager and Foreman. Although there was some evidence contesting the applicant’s suitability for the Meadowbank positions, the evidence of the relevant officer of the respondent as to why it would not have been appropriate for the applicant to be so redeployed was, for the reasons described in the submissions, narrowly confined and erroneously premised.

[11] There was further evidence of work being undertaken at the Northern Sydney Institute prior to the applicant’s dismissal in the nature of an environmental audit and that a teacher had been engaged to undertake this work. The applicant’s training meant she was capable of performing that work although, at the time the applicant gave her evidence, the teacher was still being employed updating the chemical register and material safety data sheets. This, it was submitted, was work the applicant could have been engaged to perform rather than having her employment terminated.

[12] Counsel submitted that the evidence supports the conclusion there were specific jobs or positions into which the applicant could have been redeployed at the time of her dismissal and other work was specifically identified in the evidence that she could have been engaged to undertake. Further, or in the alternative, in addition to the evidence of particular positions and work the applicant could have been redeployed to perform work, counsel submitted it is open to the Commission to conclude from the whole of the evidence that, on the balance of probabilities, there was a job, a position or other work the applicant could have been redeployed to perform work as a Technical Officer Scientific, or other suitable administrative or support role.

[13] The submissions referred to my finding in Pykett (No 1) that the attempts made by the respondent to redeploy the applicant were artificially and unreasonably constrained and that the Full Bench noted there was no challenge to the finding that “if the employer’s redeployment search had not been so constrained it is more likely than not that other redeployment options would have arisen for consideration.” The submissions also referred to that part of the Full Bench decision which dealt with the evidence a respondent employer would “ordinarily be expected to adduce” in placing reliance on the genuine redundancy “exclusion”. Against the background of the finding at first instance and on appeal, counsel noted the applicant’s evidence that she was willing to perform a wide range of work, including administrative duties, and to accept positions on a part-time basis or at a lower rate of pay in order to maintain her employment; and the Commission can make a finding that, in addition to the specific positions and work identified above, there was a job, a position or other work that was suitable for the applicant’s redeployment given matters such as the following:

• Having regard to the size and variety of the operations of the respondent, the Commission could be satisfied that a position or other work existed that the applicant could have been redeployed to perform as a Technical Officer Scientific or other suitable administrative or support role which would have been found had appropriate searches been undertaken outside the limitations of the Managing Excess Employees policy.



• There was a staffing freeze with respect to support positions at least across the Northern Institute, meaning that ongoing positions were not being filled permanently even though the work of those positions was required. This fact increases the likelihood that suitable work existed to which the applicant could have been redeployed as a Technical Officer Scientific or other suitable administrative or support role.

[14] For these reasons, the Commission should find that it was reasonable in all the circumstances for the applicant to be redeployed within the respondent’s enterprise and, therefore, the applicant’s dismissal was not a case of genuine redundancy for the purposes of s.389 of the Act. The oral submissions encapsulated matters as follows:

“PN3028 In summary then we say following the remittal there are really three stages. The first is that the evidence supports on our primary submission a finding that there were particular jobs and positions to which Ms Pykett could have been redeployed and should have been redeployed, both at Ultimo and the positions at Meadowbank. Secondly, and in the alternative, even if the commission doesn't feel in a position to identify which one of those positions it would have been appropriate for Ms Pykett to be redeployed to it's sufficient and there is ample evidence that there was work in the nature of technical officer work to which she could reasonably have been redeployed having regard to the multitude of positions that were vacant and the existence of other employees covering out of their substantive positions and of the use of agency casual staff; makes plain and supports a finding that there was work and it would have been reasonable for Ms Pykett to be redeployed to perform that work.

PN3029 Thirdly, in the further alternative it's open to the commission on the full bench's approach to make a finding on the balance of probabilities that having regard to the evidence and its knowledge of the scope of TAFE's operations and the size of its operations that there would have been positions, jobs or other work to which Ms Pykett could have been redeployed and it can make that finding on the basis of the evidence of the inadequacy of the efforts made by TAFE to explore alternatives, the size and scope of its operation, the scope of work that Ms Pykett was willing to perform, including administrative work and the fact, as we've pointed out, that there was a staffing freeze in place, meaning that permanent positions were not being filled. That indeed increases the likelihood that there was work that she could have usefully been redeployed to perform. ...”

[15] In conclusion, counsel submitted there has been no challenge by the respondent to the finding in Pykett (No 1) that (if it were not a genuine redundancy) the applicant’s dismissal was harsh, unjust and unreasonable; that the respondent’s challenge to the reinstatement order made in Pykett (No 2) otherwise was rejected by the Full Bench; and no challenge was made to the orders made in Pykett (No 3) with respect to continuity of employment and remuneration lost. Therefore, the Commission should, it was submitted, confirm its finding that the applicant’s dismissal was harsh, unjust and unreasonable and make an order that the applicant be reinstated to a position as Technical Officer 1/2, Scientific, on terms and conditions no less favourable to those on which she was employed immediately before her dismissal, together with orders maintaining continuity and with respect to remuneration lost between the dismissal and reinstatement.

Respondent’s submissions

[16] The submissions by counsel for the respondent, Mr M Easton, noted certain of the findings in Pykett (No 1) (particularly at [30]-[33]) and Pykett (No 2) (particularly at [7], [8], [40], [41]) and [50]), before drawing attention to relevant findings of the Full Bench at [25] as to redeployment being given its ordinary and natural meaning and (at [36]) that for the purposes of s.389(2) of the Act 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, based on an appropriate evidentiary basis.

[17] Following from the appeal, the principal issue for determination, it was submitted, is whether the applicant’s dismissal was a case of genuine redundancy and in particular whether it would have been reasonable in all the circumstances to redeploy the applicant within the respondent’s enterprise. The submissions continued that the central aspect of the Full Bench’s decision in Pykett (No 4) was the ruling that the Commission must find there was a job or a position or other work, as opposed to only a job or position, to which it would have been reasonable for the respondent to have redeployed the applicant.

[18] Counsel submitted that while the submissions for the applicant referred to some particular jobs or positions there was, in reality, no identified job or position to which the applicant could have been redeployed. Thus, the term “or other work” is therefore centrally important to these proceedings as the Full Bench did not elaborate on the term and the words themselves do not appear in the Act. Relevant considerations arise from the Full Bench decision, including that, in context, the term “other work” can be understood to refer only to other paid work; and the composite phrase “job or position or other work” draws from the ordinary meaning of “redeployed” adopted by the Full Bench.

[19] Following from the Full Bench decision, it was submitted the Commission must consider whether it would have been reasonable to “move the applicant from one area of work to another” or perhaps, alternatively, to “move/transfer the applicant to another job, task or function” - which must be from her paid job or position or work to another paid job or position or other work. The only way the term “other work” can be reconciled with s.389(1) of the Act is if it is understood to refer to other paid work. If “other work” included work the respondent did not wish to pay anyone to perform, then the purpose of s.389(1)(a) is undone by s.389(2). That is, it would be, or could be, open to the Commission to find the dismissal was a genuine redundancy under s.389(1) because the employer no longer required the person’s job/work to be performed by anyone, but open for the Commission to find that despite the respondent’s decision, it would have been reasonable to redeploy the applicant to do the same work. However, it is not generally for the Commission to decide the size of an employer’s workforce and, in this instance, it is not for the Commission to decide whether it would have been reasonable for the respondent to engage more employees than it wished to engage.

[20] The submissions noted that, as to the circumstances of the dismissal in 2012, a considerable amount of evidence had been adduced. In this regard, the submissions drew attention to the evidence of matters including:

• The respondent’s operational requirements had significantly changed in recent years, including courses delivered at the Meadowbank campus and the corresponding changes in the need for facilities, laboratories, staff support and the like. Such matters had been under review since 2005 and various measures were considered and/or implemented, in consultation with employees and the relevant unions, to avoid job losses for support staff generally and technical officers.



• Over a long period prior to the termination of the applicant’s employment there were significant and extensive steps taken to attempt to remove or lessen the likelihood of and consequences of redundancy.



• Once declared excess, the applicant was afforded the benefits of the Managing Excess Employees policy and was assisted in various ways in seeking potential positions within the parameters she set. The respondent also extended the applicant’s retention period.

[21] Despite all the efforts described in the evidence, not one reasonable option was identified by the respondent, the applicant or her union. This evidence, it was submitted, provided the necessary evidentiary platform from which the Commission can reject the applicant’s contention it would have been reasonable to redeploy her to another job or position or other work.

[22] The submissions for the respondent referred to some of the particular positions relied upon in the applicant’s case as being apposite.

Ultimo Campus and Meadowbank Campus

[23] As to the Ultimo campus, there was overwhelming evidence that in October 2012 there was uncertainty in employment and looming redundancies with the result that, in general terms, it would not have been reasonable to redeploy the applicant to any job or position or other work at that campus.

[24] Contrary to the case posited by the applicant, the evidence did not provide the necessary evidentiary foundation for any finding there were at least three vacant positions Technical Officer Scientific 1/2 at the Ultimo campus in Semester 2 of 2012 as well as other positions not being occupied by their substantive holders. Rather, the only evidence of possible capacity to employ the applicant at Ultimo was an expression of interest document, but that called only for expressions of interest to act in certain positions when short term vacancies arose and did not evidence any capacity for the respondent to provide work to the applicant.

[25] As to the applicant’s submissions which had referred to positions filled by casual agency staff at the Ultimo campus, the respondent had engaged some short-term labour hire casuals at Ultimo “pursuant to a logical and reasonable rationale” arising from exigencies associated with a review and consultation concerning business cases for reform which contemplated redundancies at the wider faculty of the Sydney Institute. The respondent used agency casual labour to fill short term gaps on a week to week basis. It was reasonable that the respondent put these labour supply arrangements in place; and it would not have been reasonable for the respondent to move the applicant to another campus, where that campus was contemplating significant redundancies, and redeploy her into employment so insecure that the respondent had only committed to using labour supply casuals engaged by the week. There was a “significant cloud” over future employment prospects for scientific officers.

[26] As to labour supply arrangements generally, industrial tribunals have long recognised an employer’s right to determine whether it will engage labour. The effect of the submission made by the applicant is that the Commission is invited to make a finding that the dismissal, which was otherwise a genuine redundancy (per s.389(1) of the Act) was not a case of genuine redundancy because it would have been reasonable for the employer to have ceased using labour engaged under agency arrangements to redeploy the applicant to perform the same work.

[27] If the Commission accepted this submission then the resultant effect for the respondent, and employers generally, under s.389(2) of the Act, will be subject to scrutiny as to whether their labour supply arrangements are reasonable. In the case of a redundancy directly due to outsourcing, new labour supply arrangements will necessarily be scrutinised in order to assess whether it was not reasonable to redeploy an employee to do the same work. In the case of other redundancies, an employer’s continuation of labour supply arrangements will be subject to scrutiny as to whether it was reasonable to discontinue those labour supply arrangements in order to redeploy an employee to do the same work. This understanding of s.389 and the consequential scrutiny into matters that the Commission has not previously made, is erroneous. The term “redeploy”, adopting its ordinary and natural meaning in the context in which it appears in s.389(2) of the Act, does not invite or permit the Commission to make assessments of whether it was reasonable for the employer to make or continue its labour supply arrangements.

[28] Counsel for the respondent also submitted as to the Ultimo campus:

“PN3368 ... The same difficulty arises with those positions because there's no evidence of at the Ultimo campus TAFE wanting the work of a scientific officer that it hasn't already got somebody doing. That's the important qualification, that it hasn't already got somebody doing. There are people in positions who are acting up to positions and they are in no different position to [named individuals] in that respect.

PN3369 However my friend reads exhibit 4 of the original proceedings, the tables, to the extent that it's said that there are spots for Ms Pykett, they're either created because there's a vacancy because someone has been promoted or there's a vacancy because somebody is acting up into another position or even that somebody is acting into the position that Ms Pykett says she should have had.

PN3370 On any of those formulations what is being asked is for TAFE to engage one more person than it otherwise wanted to do at Ultimo because you'd have to displace one of the others that are acting up into a position for example or you'd have to replace I think it was [name of individual] who was promoted. There's an illustration. [Name of individual], I think her name was, was promoted and TAFE decided not to fill that position at Ultimo or at all at that point in time. The effect of what is urged is that TAFE is to fill the position that it didn't want to otherwise fill and that trammels the exercise of government functions.

...

PN 3373 The difficulty with that is the evidence is clear that on the way that TAFE has chosen to conduct its operation there isn't a spot for Ms Pykett and there are subsets of that. For example, at Ultimo at that particular point in time some of the labour was engaged by way of a labour supply agreement such as [named individual]. But the way that TAFE has chosen to conduct its operation at that point in time is in such a way that there wasn't a spot for Ms Pykett at Ultimo. ...”

[29] The respondent made various submissions as to why the positions of Operations Manager and Foreman would not, contrary to the submissions for the applicant, have been suitable for redeployment. The matters relied on by the respondent in positing it would not have been reasonable to have redeployed the applicant to either of these two positions adverted to the effects on other employees and also to matters including, but not limited to, the applicant’s skill-set and/or training that may be needed.

[30] The respondent also submitted there was no factual basis upon which to find that it would have been reasonable to not make the applicant’s employment redundant and instead redeploy her to do environmental auditing work.

Other jobs, positions or other work

[31] In addressing the alternative submission for the applicant that the Commission can and should conclude there may well have been other jobs, positions or other work, described under the sub-heading in the submissions of “hypothical” jobs, positions or other work to which the applicant could have been redeployed, the respondent submitted such submissions must be rejected in light of the Full Bench’s decision. Shortly stated, the respondent submitted in writing the Full Bench concluded that s.389(2) of the Act requires a finding as to a specific job or position or other work “as a necessary step” to assessing whether redeployment would have been reasonable in all the circumstances (albeit the oral submissions in the proceedings later conceded the Full Bench decision did not require such a finding but otherwise emphasised the need for a proper evidentiary basis for any finding that is made with some “necessarily specific assessment of the reasonableness of that position, job or other work”, rather that any alternative approach). There was ample evidence upon which the Commission can find that it was not reasonable to redeploy the applicant in the circumstances through the factors identified in the respondent’s case.

Remedy

[32] The Full Bench’s decision in Pykett (No 3) applied the Anthony Smith & Associates Pty Limited v Sinclair (1996) 67 IR 240 line of authorities in relation to reinstatement. This line of authority is predicated upon a finding of the appropriateness of a non-specific reinstatement order. The appropriateness of such an order must be assessed at the time that the order is made. The Commission’s reinstatement order arising from Pykett (No 2) was necessarily quashed by the Full Bench in Pykett (No 3) and the appropriateness of such an order must be considered afresh

Applicant’s submissions in reply

[33] The applicant’s submissions contended that the respondent’s submissions “failed to grasp” the effect of the decision of the Full Bench or acknowledge the rejection of the submissions it pressed as to the interpretation of s.389(2) of the Act: the question arising is whether there was “a job or a position or other work within the employer’s enterprise (or the enterprise of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee.” The Full Bench rejected the submission there must be a specific, identified position existing to which the dismissed employee could have been redeployed. It is open to find it would have been reasonable to redeploy an employee to perform work previously undertaken across a number of positions or to which no employee is presently assigned - involving a judgment about the reasonableness of the employee being redeployed to undertake that work.

[34] There were a number of positions to which the applicant could have been redeployed, albeit such a finding is not necessary. There was work required by the respondent that the applicant could have been redeployed to perform, particularly having regard to the number of vacant technical officer positions at the Ultimo campus, including positions being performed by casual agency staff, staff acting out of their substantive positions or left unfilled.

[35] The submissions made by the respondent in relation to evidence of events from circa 2005 to 2011 do not assist in addressing the question of whether it would have been reasonable to redeploy the applicant in October 2012. The submissions for the applicant put that the respondent presumably contends the evidence as to efforts it is claimed were made to find alternative employment for the applicant justifies a finding that it would not have been reasonable to redeploy the applicant at that time, but such reliance is misplaced or misstates the evidence or both.

[36] The adequacy of the efforts made by the respondent to a find alternative employment for the applicant after she was declared excess was subject of comprehensive examination in earlier proceedings and was found to have been “artificially and unreasonably constrained by an abstract, policy-specified meaning of redeployment”, given the Managing Excess Employees policy “solely or principally contemplated only redeployment into an advertised, permanent vacancy and in the context of the ‘matching’ processes such as salary range.”

[37] Contrary to the respondent’s submissions - and although there was some dispute on the evidence - the evidence does not support a finding the applicant would not accept lower-paid positions or that she was not interested in undertaking office work; the evidence was that the applicant was willing, and informed the respondent that she was willing, to undertake work which was lower-graded and to undertake clerical or office work. As to the evidence of investigations by the respondent concerning other campuses, the efforts made by the respondent to explore alternatives employment options were constrained by the Managing Excess Employees policy. That is, unless a position involved an advertised permanent vacancy, no consideration at all was given to redeploying the applicant to perform that work.

[38] To suggest, as put in the submissions for the respondent that “despite all these efforts no one reasonable option was identified by TAFE” is to ignore the findings as to the inadequacy of those efforts. Considering there was a staffing freeze in place such that positions would not be advertised even if vacant and required to be filled on an ongoing basis, the efforts to redeploy the applicant had virtually no prospects of success. The “artificially constrained” and “blinkered” attempts to find alternative employment by applying the Managing Excess Employees policy do not support a finding that redeployment would not have been reasonable for the purposes of s.389(2) of the Act; the evidence supports the contrary conclusion.

Ultimo Campus

[39] The submissions for the applicant reiterated the suitability of redeployment earlier relied on and sought to discount the matters relied upon by the respondent. As to the Ultimo campus, counsel for the applicant submitted, first, it was “notable” the submissions for the respondent contained no suggestion the applicant was not suitable to perform the work or that ongoing work as a technical officer was not required at that campus. Nonetheless, it was suggested by the respondent that the applicant would not be redeployed because of alleged staffing uncertainty or because it was open to the campus to decide to fill the positions with agency staff and dismiss an employee who had 32 years’ service instead. The applicant contended those submissions suffer from a number of flaws, including:

• The respondent assumes the existence of any degree of uncertainty as to the precise future staffing arrangements at Ultimo provided a reason it would not have been reasonable to redeploy the applicant, but no employee is guaranteed that their position will continue forever and any employer reassesses its staffing needs on an ongoing basis.



• That a decision may be made in the future which may impact upon the position of a redeployed employee provides no basis for suggesting that it would not be reasonable to redeploy; and the applicant made clear her desire (or “desperation”) to continue in employment with the respondent, even in a temporary position (and permitted her to continue exploring other redeployment options).



• In any event, the respondent overstated the degree of uncertainty as to the staffing needs of the Ultimo campus (and, at the time of the hearing some ten months after the applicant was dismissed, “there was nothing more than a proposal” and no “progress” had been made) and provides no foundation for suggesting that it would not have been reasonable to redeploy the applicant to the Ultimo campus.

[40] The applicant submitted the respondent had sought to downplay the clear evidence of vacant technical officer positions at the Ultimo campus even though documentary and oral evidence demonstrated the existence of multiple established technical officer positions for which work was required, but which were being filled by persons acting out of their substantive positions, casual agency staff or left unfilled. That evidence provides a firm foundation for the Commission to conclude that it would have been reasonable to redeploy the applicant. Significantly, in this regard, the Full Bench did not require that an existing job or position be identified to which an employee could have been redeployed and the Commission may conclude it would have been reasonable to redeploy the applicant to perform work that hitherto was undertaken across a number of positions or presently covered by staff in other positions.

[41] The submissions contended that the logic of the respondent’s submission was faulty in relation to the advertisement of a position at the Ultimo campus to act in positions “when short term vacancies arise”. The fact that a particular position was advertised on those terms does not establish there was no other work to which the applicant could have been redeployed which was not advertised.

[42] As to the submissions for the respondent in relation to the use of labour hire or agency staff, the Commission is not called upon determine, in a general way, whether an employer’s approach to such engagements is reasonable. The Commission must determine whether it would have been reasonable to redeploy a particular employee rather than terminate the employment. Where there is evidence of suitable work that is required by the employer, it is open to the Commission to conclude it would have been reasonable to redeploy an employee with 32 years’ service to perform that work.

Operations Supervisor/Foreman Positions/Acting Up Positions/Environmental Audit Work

[43] The submissions for the applicant in reply to those for the respondent concerning Meadowbank reiterated and relied upon the matters already advanced and drew attention to matters otherwise said to undermine certain uncontested evidence. The submissions contended the submissions for the respondent as to the operation of acting up “cannot be correct” and elaborated upon matters in that regard, including by reference to the Managing Excess Employees policy.

[44] As to the environmental audit work, the applicant submitted the respondent did not dispute the evidence that such work was suitable for her to perform and was ongoing at the time her employment was terminated, and it was unclear the basis upon which it is said it would not have been reasonable to redeploy her to perform such work.

Other Suitable Work

[45] The applicant’s submissions in reply noted that the respondent disputed her alternative submission that, aside from the specific jobs and/or work identified in the evidence, the Commission can be satisfied there was a job, position or other work to which the applicant could have been redeployed. The applicant submitted that in this regard the respondent “again misunderstands” the effect of the Full Bench decision, and, in this regard, compared aspects the respondent’s submissions with the text of that decision.

[46] The submissions continued that if the circumstances are such, as in this case, that an employer has not attempted adequate searches to find alternative employment at the time of dismissal, it may in some cases be difficult to recreate opportunities that might have been available at the time of dismissal. In that situation, it may (in an appropriate case) be open to the Commission to find that there was other work available to which the employee could have been redeployed based upon the evidence as a whole and the knowledge the Commission has as to the scope of an employer’s operations. In this matter, the respondent never looked for opportunities for redeployment for the applicant other than permanent, advertised vacancies. Similarly, the respondent never attempted to locate temporary opportunities or circumstances such as employees on long service leave, parental leave or acting-up in other positions and had no mechanism for identifying such opportunities. It is apparent, the applicant submitted, from the decision of the Full Bench that this was far too narrow a focus.

[47] Given the scope of the operations of the respondent and the nature of the work the applicant was willing and able to perform, the Commission can be satisfied that there was a job, a position or other work she could have been redeployed to perform. In conclusion, the applicant submitted the Commission should find that the dismissal was not a case of genuine redundancy. An order for reinstatement should be made together with orders maintaining the continuity of employment and with respect to remuneration lost.

Consideration

[48] The decision of the Full Bench, in remitting the matter, read, in part:

“[34] Honeysett [Ulan Coal Mines Ltd v Honeysett (2010) 199 IR 363] is authority for the proposition that for the purpose of s.389(2)(b) [of the Fair Work Act 2009] it is sufficient if the Commission identifies a suitable job or position to which the dismissed employee could be redeployed. The Commission must then determine whether such a redeployment was reasonable in all the circumstances. We note that given the factual context the Full Bench in Honeysett did not need to consider whether s.389(2) may be satisfied if the dismissed employee could be redeployed to perform other work within the employer’s enterprise (or that of an associated entity.) Given its particular factual circumstances Honeysett is not authority for the proposition that it is always necessary to identify a particular job or position to which the dismissed employee could have been redeployed.

[35] As we have mentioned, the use of the past tense in the expression ‘would have been reasonable in all the circumstances for the person to be redeployed ...’ in section 389 (2)(a) directs attention to the circumstances which pertained when the person was dismissed. As noted in Honeysett, [T]’he exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances’. The question is whether redeployment within the employer’s enterprise or an associated entity would have been reasonable at the time of dismissal. In answering that question the Full Bench in Honeysett observed that a number of matters are capable of being relevant:

“They include 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”.

[36] We have earlier set out the submissions of the appellant and the respondent as to the proper construction of s.389(2) (see paragraphs [15] to [18] above). We accept the respondent’s submissions. 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. Such an interpretation is consistent with the ordinary and natural meaning of the words in the subsection; the Explanatory Memorandum and Full Bench authority. We acknowledge that the facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee. If an employer wishes to rely on the ‘genuine redundancy’ exclusion then it would ordinarily be expected to adduce evidence as to the following matters:

(i) that the employer no longer required the dismissed employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;

(ii) whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and

(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.

[37] 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.

[38] As we have mentioned, we accept the respondent’s submissions as to the proper construction of s.389(2). But that is not the end of the matter. The difficulty for the respondent is that the Commissioner failed to make the requisite finding and for that reason the appeal must be upheld. We now turn to the decision subject to appeal.

[39] The relevant parts of the Commissioner’s decision are as follows:

“[31] The exploration by the respondent of Managing Excess Employees-defined redeployment for the applicant solely or principally contemplated only redeployment into an advertised, permanent vacancy and in the context of the “matching” processes such as salary range. However, there may well have been other reasonable redeployment options available within the respondent’s enterprise that simply were not considered due to the constraints in the Managing Excess Employees policy concerning positions into which the applicant could be considered for redeployment, such as to be redeployed to undertake the work performed by agency casuals. It is more likely than not that if the consideration of redeployment options had been more broadly approached by the respondent beyond only matched advertised, permanent vacancies, other reasonable redeployment options would have emerged within the respondent’s enterprise and appropriately been considered. If the substantive occupant of a position was expected to be absent from that role for due to, for instance, six months of parental leave, it would seem reasonable to expect that a time-limited redeployment into that role might be considered both as appropriate for consideration and reasonable in all the circumstances in the case of an excess employee who wished to remain employed by the respondent so he or she could continue to seek appointment to a more secure, substantive position within the respondent’s enterprise. In this regard, I take notice of the fact that superannuation entitlements for employees in NSW public sector-type schemes, for example, can be substantially affected depending on the superannuant’s age and the timing of date of the termination of employment.

[32] The examination of the full range of actual redeployment options within the respondent’s enterprise that otherwise may have arisen for consideration was not only artificially or unreasonably constrained by the abstract of the Managing Excess Employees-specified meaning of redeployment, there was no real prospect the applicant would have been redeployed to an advertised, permanent vacancy during her retention period because the respondent had a freeze on filling certain permanent positions at that time, and other matters were put on hold as a result of disputation between the applicant’s union and the respondent. As such, it appears that any possibility of redeployment, even within the confined meaning of redeployment as contemplated in the Managing Excess Employees policy, in the circumstances of that freeze, was no more than a theoretical construct as it concerned the applicant and certain positions. When the applicant was declared to be an excess employee, she was given the option of accepting a voluntary redundancy package, being a package that contains significantly better financial arrangements than the scale of payments that applies in the case of a forcible redundancy. Instead of accepting the voluntary redundancy package, the applicant opted to try to be redeployed. However, there was, it appears, no real possibility that the applicant could have been redeployed, within the meaning of the Managing Excess Employees policy, because of the freeze on certain permanent appointments. The existence of the freeze was not known to the applicant when she opted to seek redeployment after she was declared an excess employee. The applicant’s redundancy payments in the forcible redundancy were inferior to those that would have applied if the applicant had accepted voluntary redundancy, for example, on the basis of informed decision-making about the freeze. On one view of it, the respondent may have misled the applicant through a lack of disclosure about the freeze on certain permanent appointments relevant to her potential redeployment at the time when the applicant determined not to accept the voluntary redundancy package.

[33] The respondent has objected to the application on the basis the termination of the applicant’s employment was a “genuine redundancy”. It would, however, in my view, have been reasonable in all the circumstances for the respondent to redeploy or to consider redeploying the applicant within its enterprise other than to an advertised, permanent vacancy. I do not consider it necessary in the circumstances of this case to determine which position, specifically, would have been appropriate for redeployment of the applicant. That the respondent did not allow for any consideration of the redeployment of the applicant within its enterprise other than under the artificial confines of the Managing Excess Employees-conditioned understanding of “redeployment”, in and of itself, leads me to the conclusion the dismissal was not a genuine redundancy within the meaning of the Act.” [emphasis added]

[40] The Commissioner erroneously focussed on the inadequacy of the appellant’s redeployment policy and failed to make a finding that there was a job, a position or other work to which Ms Pykett could have been redeployed. Such a finding is a necessary step in reaching the conclusion that it would have been reasonable in all the circumstances for Ms Pykett to be redeployed within the appellant’s enterprise. The failure to make such a finding is an error which warrants correction on appeal. We now turn to the second issue raised in the appeal, whether a reinstatement order must specify the position to which the person is to be appointed. ...”

[Underlining added in Full Bench decision; endnotes not reproduced].

[49] The Full Bench described the nature of the error arising from my earlier consideration and the appeal decision also described the comparatively confined matter now arising for consideration on the remit. The relevant evidence before me prior to the appeal, which was relied upon and elaborated upon in considerable detail in the submissions following the remit (including with reference to competing descriptions of the effect of the Full Bench appeal decision), concerned s.389(2)(a) of the Act. Section 389 reads 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.”

[50] Thus, s.389(2)(a) of the Act provides that the applicant’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the applicant to be redeployed within the respondent’s enterprise. The applicant’s dismissal was not a case of genuine redundancy as it would, on the evidence, have been reasonable in all the circumstances for the applicant to be redeployed within the respondent’s enterprise. On a consideration of the evidence, I am comfortably satisfied, and so find, on the balance of probabilities, that there was a job or a position or other work within the respondent’s enterprise of a Technical Officer Scientific Grade 1/2 level at the Ultimo campus to which it would have been reasonable in all the circumstances to redeploy the applicant - even if, for example, the redeployment would not have had the greater security of tenure of redeployment to a permanent, advertised position of the type contemplated in the Managing Excess Employees policy. There is, again on my consideration of what has been advanced, an appropriate and, indeed, a strong evidentiary basis for so finding as to the Ultimo campus. In this regard, I note also what was said by the Full Bench in Pykett (No 4):

“[14] The Commissioner found that the examination of redeployment options within the employers enterprise was ‘artificially and unreasonably constrained by an abstract, policy-specified meaning of redeployment’ and concluded that Ms Pykett’s dismissal was not a case of genuine redundancy because it would have been reasonable in the circumstances for her to be redeployed within TAFE NSW. There is no challenge to the Commissioner’s finding, at [31] of the decision of 12 August 2013, that if the employer’s redeployment search had not been so constrained it is more likely than not that other redeployment options would have arisen for consideration.”

[51] While the applicant’s case on the remit was multifaceted in highlighting jobs, positions or other work for redeployment of the applicant within the respondent’s enterprise, it is unnecessary to separately address in this decision the submissions advanced by the parties as to each such class of jobs, positions or other work relied upon given what I consider to be the particularly persuasive evidence and submissions in the applicant’s case concerning what might perhaps be characterised as its primary position concerning Technical Officer Scientific Grade 1/2 level jobs, positions or other work at the Ultimo campus. On balance, I accept the submissions for the applicant that the evidence supports a conclusion it would have been reasonable to have redeployed the applicant to the Ultimo campus to undertake a job, position or other work of a Technical Officer Scientific Grade 1/2 level. As a corollary to my acceptance of the applicant’s submissions in this regard, I do not accept the submissions of the respondent which contended for a contrary conclusion. I do not accept, in particular, the respondent’s submissions in relation to not redeploying the applicant for reasons going to what might be described as uncertainty of future tenure of such jobs, positions or other work or, more generally, for the other reasons relied upon by the respondent. In this regard, I also note the evidence of the applicant’s strong desire to maintain her employment with the respondent for so long as may have been available. Again, I prefer and accept the submissions for the applicant in such respects in relation to reasonableness.

[52] It seems to me that the submissions for the applicant provided a better description, with respect, than those of the respondent concerning the matter or matters to be determined following the remit from the Full Bench. Further, and again with respect, it seemed to me that some of the matters addressed in the respondent’s submissions were arguably somewhat extraneous to the matter or matters that properly fell to be determined by me following the remit and, on one view of it, may be considered to have had a tendency to seek to re-agitate at least some matters that either were not the subject of appeal or being matters which had been otherwise addressed or determined in the appeal.

Conclusion

[53] The termination of the applicant’s employment was not a case of genuine redundancy, because it would have been reasonable in all the circumstances for the applicant to be redeployed within the respondent’s enterprise.

[54] To the extent it may be necessary following the appeal, and without once again canvassing in this decision the range of other matters already addressed in the earlier Pykett decisions, I reconfirm and/or otherwise now conclude the applicant was unfairly dismissed and that she has established a case for an unfair dismissal remedy in her favour - namely, appointment within 21 days of the date of this decision to a position of Technical Officer 1/2, Scientific, on terms and conditions no less favourable than those on which she was employed immediately before the dismissal, and with continuity and lost remuneration to the date of the return to work.

[55] I note that discussions were previously held between the parties in relation to the form and content of an earlier order. Following from the approach previously adopted, I now direct the parties to confer about the content of a draft order to give effect to my conclusions and to update the calculations concerning lost remuneration. Following such discussions, the applicant’s solicitors should, within seven days, file and serve the draft order indicating whether there is agreement between the parties concerning the form and content of the order.

[56] The matter is stood over pending receipt of the draft final order.

COMMISSIONER

Appearances:

M. Gibian of counsel, for the applicant.

M. Easton of counsel, for the respondent.

Hearing details (on remittal):

2014.

Sydney:

April, 14.

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