Mr (Garth) Scott Knack v SMEC Services Pty Ltd

[2015] FWC 3184

[2015] FWC 3184

FAIR WORK COMMISSION

DECISION

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

Mr (Garth) Scott Knack
v
SMEC Services Pty Ltd
(U2014/14138)

COMMISSIONER SPENCER BRISBANE, 14 MAY 2015

Application for relief from unfair dismissal - jurisdictional objection - genuine redundancy.

Introduction

[1] This decision relates to an application made by Mr Scott Knack (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy alleging that the termination of his employment from SMEC Services Pty Ltd (the Respondent) was harsh, unjust or unreasonable. The Applicant was employed as a Business Management Systems (BMS) Manager and BMS Representative. The Applicant contended he was covered by the Clerks - Private Sector Award 2010 (the Award), however the Respondent submitted that the Applicant’s job was not covered by the Award, or any other Modern Award, or Agreement.

[2] The Applicant was notified that his job had been made redundant on 26 November 2014. The Applicant’s dismissal took effect on 28 November 2014. This application was filed within the required timeframe.

[3] The Respondent raised a jurisdictional objection in relation to the application that the termination of the Applicant’s employment, was due to genuine redundancy.

[4] A Directions conference was held and Directions were issued for the filing of submissions in relation to the jurisdictional objection and the substantive unfair dismissal application. The Applicant sought to file further material and this was granted. The Applicant also later raised a series of queries in relation to the redundancy and made additional arguments. The Respondent was directed to respond to these matters, prior to the hearing, in order that the Applicant was aware of the arguments in response.

[5] The Applicant was self-represented. After hearing the submissions in relation to s.596 of the Act, having regard to the arguments to be raised in relation to the issues pertaining to the redundancy, and the lack of company representatives with any experience to conduct the hearing, and that these personnel were also required to provide evidence, the Respondent was granted permission for legal representation. The Applicant was provided with procedural assistance in relation to preparing for the hearing, and he was given latitude to give additional comprehensive submissions and evidence at the hearing. Following the hearing of the matter, the Applicant was provided with a further opportunity to make additional submissions on the ‘Grove’ cases referred to by the Respondent in the final submissions in the hearing.  

[6] Whist not all of the evidence and submissions in the matter are referred to in this decision, all of such have been considered.

Relevant Provisions

[7] The application has been made pursuant to s.394 of the Act, which provides as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3)...

[8] Prior to considering the merits of the matter, the Commission must decide those matters prescribed by s.396 of the Act as follows:

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.

[9] It is not in dispute that the application was filed within the prescribed time period in s.394(2) of the Act.

[10] The Respondent has not raised any objection to the application on the basis of those matters set out in s.396(c) of the Act. The Respondent is not a Small Business Employer.

[11] The Respondent has raised an objection to the Commission’s jurisdiction on the basis that the termination was a genuine redundancy. In accordance with s.396(d), the Commission must consider this matter prior to considering the merits of the application. Submissions and evidence were heard on the jurisdictional objection and the related merits of the application by the consent of the parties.

[12] An unfair dismissal does not include a dismissal, where it was a case of genuine redundancy:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[13] A genuine redundancy is one within the meaning of s.389 of the Act which states:

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.

Background and Submissions

[14] The Applicant commenced employment with the Respondent in October 2008 as a Quality, Environment and Safety Representative (BMS Representative) 1. In 2010, the Applicant was appointed as the BMS Manager for SMEC and BMS Representative for the Northern Region.

[15] The Respondent submitted that SMEC had suffered an overall decline in business in recent times. Mr Jonathan Cisecki, National Operations Manager, undertook a review of the BMS team structure in June 2014. Mr Cisecki stated that a role that was 100% nationally focused was required.

[16] On 26 November 2014, a meeting was held with the Applicant, the National HR Manager Karen Quinlan and the National Operations Manager Jonathan Cisecki. The Brisbane Office Manager attended with the Applicant as his support person. At this meeting, the Applicant was informed that his position had been made redundant and that his last day of employment would be 28 November 2014.

[17] The Applicant submitted that his dismissal was unfair. The Respondent submitted that the Applicant’s dismissal was a case of genuine redundancy. The Applicant challenged this. The Applicant submitted that the termination was not due to a genuine redundancy, as his employer had not complied with the consultation obligation and also that parts of his job were still required to be performed by other employees.

Submissions and Considerations

[18] The consideration of a redundancy requires an assessment of all the matters in s.389 of the Act.

s.389(1)(a) - whether employer no longer required person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise

[19] The Applicant submitted that the Respondent failed to meet the test in s.389(1)(a), in that the duties of his job were still required to be performed by other employees.

[20] The Respondent informed the Applicant, at the meeting on 26 November 2014, that they were going to create a full time National BMS Manager role. Subsequent to the dismissal, the Applicant’s duties were distributed amongst a number of other employees.

[21] The Applicant questioned the basis for the restructure and submitted that his impression from senior management was that the Respondent’s business was “turning around” and that the work in hand projects, and “blue sky” projections, were positive. However, the Applicant stated that, his position was not dependent on project work load and instead was dependent on the certification of the company to ISO standards and certification for management systems.

[22] The Applicant stated that he held two roles within the one position, which, he said, indicated that the Respondent had already been spending the minimum possible to achieve the outcome.

[23] The Applicant stated that he was told that the Respondent, was going to create, the same position - BMS Manager ANZ.

[24] The Applicant provided an email in support of the argument that the work that he had been doing was given to other employees. The email is dated 1 December 2014 and outlines that the Applicant held the BMS role divided across the ANZ division and the Northern Region. The email provided a list of staff to whom enquiries may be directed, in respect of work areas previously addressed by the Applicant. The email stated that the list operates until formal arrangements have been finalised and announced that the job areas had been split up as follows: OH&S, JSEA’s etc... issues and concerns (Northern/Nationally); BMS issues and concerns (Northern/Nationally); Regional OH&S and Operations (Northern); and BMS System and processes queries (Northern/Nationally).

[25] The Applicant submitted that no evidence had been provided of the work assessment, to be able to make the position redundant, nor as to the distribution of the work, as to the capacity and capability of other employees (to whom his duties were distributed to) to undertake the re-distributed duties 2.

[26] The Applicant submitted that he had been performing a role, half of which was the Regional BMS role and half the BMS Manager role.

[27] The Respondent submitted that the Applicant’s regional BMS responsibilities comprised 50% of his role, and that his role represented the least regional responsibilities of the three BMS representative roles. The Applicant also submitted that given, effectively, two full-time roles had been combined to make up his job, it was reasonable that his role could now be reduced to the BMS Regional role only.

[28] The Respondent, however, submitted that it was more operationally efficient to absorb the remaining responsibilities into other employee’s positions. The Respondent submitted that it would not be operationally viable to create a fulltime Northern Region BMS Representative position, as it previously only represented half of the job and because all of the essential duties of this position, could be effectively performed by existing staff, at no additional cost.

[29] The Applicant also submitted that no operational change was required which gave rise to the necessity of the redundancy. The Applicant submitted that the Respondent has stated that they are going to need the BMS Manager role. The Applicant submitted they also required a BMS Representative to complete the Management Representative Role, as required under certification standards, which requires knowledge of all three system standards and interpretation for implementation and maintenance.

[30] The Respondent provided submissions on the basis for the restructuring of the role. The Respondent submitted that, it no longer required the Applicant’s job to be performed by anyone because of a change in the operational requirements of the Respondent’s enterprise, that is, the restructure of the BMS Management Systems. The Respondent submitted that the restructure occurred as a result of an overall decline in business and a restructure of the BMS team was “necessary to drive and deliver the BMS Strategy”.

[31] The Respondent submitted that as a result of the restructure, the BMS Representative role was absorbed into roles performed by other staff. Mr Cisecki, National Operations Manager, stated that it was more operationally efficient to absorb these responsibilities into other employees’ positions, given that the Applicant’s responsibilities represented the least regional responsibilities for the three regional BMS Representatives 3.

[32] The Respondent submitted that the BMS Manager duties were restructured to form a total new role, with a national focus on BMS Strategy.

[33] With respect to the capability of staff who absorbed duties previously performed by the Applicant in his BMS Regional Representative role, the Respondent submitted that, the WHS responsibilities were assigned to staff competent in performing the responsibilities.

[34] With respect to s.389(1)(a), the Respondent relied on the Full Bench decision of Ulan Coal Mines Limited v Horwarth 4, which referred to the distinction between jobs and duties. According to that case, the inquiry into whether the job is required to be performed is not directed to whether there are duties left to perform, rather that the inquiry should be to whether the job remains after the restructure. In Ulan, the job had changed, while the duties remained. In the current matter, the circumstances are similar in that the duties have been divided amongst other roles.

[35] The Respondent also relied on the Decision in Mackay Taxi Holdings Ltd T/A Mackay Whitsunday Taxis v Wilson (Mackay Taxi)s 5, which also applied the distinction between job and duties as in Ulan v Horwarth.

[36] When a person’s job is no longer required to be performed by anyone is not an absolute consideration. The Explanatory Memorandum to the Fair Work Bill relevantly provides:

“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 a 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, activity, 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 employee;



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



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

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 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 a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or 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...”

[37] The Respondent referred to the decision of Senior Deputy President in Grove v Help Enterprises 6 (Grove First Instance) which was upheld on appeal7, in terms of the decision of the Respondent to make the job redundant. Richards SDP, in the first instance Decision stated as follows:

“[28] Ms Grove may contend that the decision making was unnecessary and that her role should not have been displaced for reasons of the creation of additional management positions at the Nundah site. But in the end, it is the prerogative of management to determine the structure of the business and how it might contribute to its effective operation. There is nothing in the evidence whatsoever to suggest that the decision-making in this regard had as its purpose or had as a collateral purpose the intention to bring about the dismissal of Ms Grove. Ms Grove sought to locate such a motive on the part of her employer at times over the hearing - by reference to a fraud concern she alleged she had communicated. But none of this was in any way sustainable as a proposition of fact and the witness evidence made that so: the decision making of the employer was driven by operational need with negligible regard - if that - for any (claimed) past complaint (if it was that).

...

[30] In my view it was a legitimate and unsurprising development that the employer took the decision to change its staffing profile at the Nundah site consequent of the changes in the management structure and number of such personnel on site. These are matters entirely within the prerogative of the employer, as the bearer of risks. The steps taken by the employer were for the purpose of improving the efficient operation of the business and to reduce its operating costs as it repositioned itself in the employment services market...

[38] The Applicant conceded that he understood the job, in its then current form, was not working. Further to this, the Applicant’s submissions and his reference to the subsequent email (referring to the distribution of his duties) demonstrated that a range of other employees were undertaking parts of his duties. This further demonstrated that the Applicant’s job (not some of the duties associated with the job) was no longer required to be performed by anyone else.

[39] In considering this situation in Grove, SDP Richards stated as follows:

“[40] The Applicant’s belief that elements of her prior job were still being done by someone else or other persons does not allow me to conclude that there was not a redundancy for operational reasons.

[41] Where an employee’s employment comes to an end for reasons of operational circumstances, such as I have found a case to be here, the reasons for the dismissal are held to be sound and defensible (see Re: UES).”

[40] The Applicant submitted that he challenged the process of the restructure, as it had been undertaken without evidence of the assessment of tasks, time taken to do those tasks and the repetitive nature of the tasks. The Applicant stated that Mr Cisecki’s evidence did not demonstrate operational efficiencies and benefit would result from the restructure. As stated by Richards SDP in Grove (extracted above), “it is the prerogative of management to determine the structure of the business and how it might contribute to its effective operation” 8. It is not for the Commission to place itself in the shoes of the Employer, to determine the most operationally efficient manner to adopt in conduct of its business.

[41] It is accepted, on the evidence, that the Respondent undertook a restructure in 2014, which resulted in the deletion of the dual BMS Manager (National) and BMS Representative position. The case authority 9 is clear that there is a distinction between the consideration of jobs and duties, and in this case, while the Applicant’s duties have been distributed amongst other staff, and are still required to be done, the Respondent no longer required anyone to perform the Applicant’s job that was 50% BMS Manager (National) and 50% BMS Representative (Northern Region). The decision was made by the Respondent to create a 100% National BMS Manager, and to redistribute the BMS Representative (Northern Regional) duties. It is not for the Commission to intervene on what the most operationally efficient restructure for the business was.

s.389(1)(b) - whether employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

[42] The Applicant objected to the redundancy decision, on the basis of the Respondent’s failure to consult him on the decision, as follows:

“MR KNACK: Well, the highlighted paragraphs, Commissioner, I’m not challenging the decision of the company to actually review the position and make decisions. In fact, if I had been consulted earlier in the piece, I probably would have agreed with John that it wasn’t working, but no consultation took place. There was no effort on behalf of the company to work with me to make it work. After I’d been there so long and done so many good things for the company, I think it was only reasonable for the company to talk to me about my position becoming redundant and then, how that would be approached.

Probably even then I could have been able to offer up the reduction to the BMS rep’s role, so I’m not really challenging the decision, I am just challenging that they failed to consult, that I was under the SMEC Award 2000. I know from memory that, in October last year, that there was a transition. The SMEC Award had been done away with and there was four or five awards that had replaced it. And I was confident that I had received a notification from SMEC saying that this award applied to my role. I am unable to find either my original contract or that document, Commissioner, as evidence.

I would think that, even if I wasn’t under an award, that no lesser standard than what the national employment standards, I would think, would apply, so the obligation to consult is still there, particularly for major workplace changes, which the standard says are redundancies.

Just still on that, the BMS manager and BMS representative role, all my tasks, apart from managing the team, are very much same in both roles, but at different levels within the organisation. A lot of it was clerical because I was in my office or I was in another place, so it was mostly all clerical.

It wasn’t unreasonable for me to expect that some consultation take place because there was the lesser role of the BMS rep that I could have done quite easily and would have been more effective and efficient for the organisation to put a BMS manager in place. But once again, being a financial driven organisation, they have applied the cost side of things rather than the effectiveness and efficiencies side of things. This was exposed when no assessment has been done of my role and tasks and who and how they were given to and what time, and no evidence has been given to the hearing how that would have happened.

The respondent was saying that it is my job to have put forward suggestions into what position might have been available in SMEC. I have no knowledge of that. It would be a consultative process to find out what jobs were available and whether the skill set would match. I don’t think that was unreasonable. So my case was that they failed to consult over the time and there was a lack of assessment to demonstrate that the jobs could be appropriately split up amongst other staff.” 10

[43] The Applicant argued that the Respondent had not complied with the relevant consultation procedures in implementing the redundancy.

[44] The Applicant argued his work was covered by the Clerks - Private Sector Award 2010 (the Award). The Applicant did not provide reasoning as to the basis of his coverage, under the Award, in comparison to the duties he performed and his salary level.

[45] The Respondent refuted that the Applicant was covered by the Award.

[46] Mr Cisecki stated that the primary purpose of the Applicant’s position was not “clerical work” as defined in the Award. Mr Cisecki described the Applicant’s position as follows:

“The primary purpose of the BMS Manager portion of Mr Knack’s position was to develop, document, implement and maintain the Business Management System and oversee its implementation improvement. The primary purpose of the BMS representative portion of Mr Knack’s position was to implement and develop the Business Management System within the Northern Region. Mr Knack’s salary was $125, 171.” 11

[47] The definition of “clerical work” as per section 4 of the Award is as follows:

“clerical work includes recording, typing, calculating, invoicing, billing, charging, checking, receiving and answering calls, cash handling, operating a telephone switchboard and attending a reception desk”

[48] Mr Cisecki, in arguing that the Award did not cover the duties of the Applicant, provided a Position Description as an annexure to his Supplementary Statement. Regardless, he stated that consultation occurred with the Respondent.

[49] Further, the Applicant stated, with respect to the issue of consultation, that his understanding was that the Respondent had not raised the issue of the redundancies at the ANZ division BMS Annual meeting 2014 on 20-21 October 2014, at which he was present. The Applicant provided a copy of the minutes of the meeting and stated that the reference to the ‘BMS restructure’ on the document related to the documentation restructure 12, rather than the business restructure, and therefore, on that basis, he was not consulted about the redundancy at that meeting.

[50] In response to the Applicant’s allegations that no consultation occurred with him, regarding his dismissal, the Respondent submitted that it did consult with the Applicant, about his redundancy, at a meeting on 26 November 2014.

[51] Mr Cisecki stated as follows:

“On Wednesday 26 November I met with Mr Knack, his support person and the Manager Human Resources ANZ. I advised Mr Knack that following a review of the BMS team structure, including consultation with the Australian Management Committee his position was no longer required. I advised him that a restructured role would require 100% national focus on driving and delivering the BMS strategy; managing the BMS team; actively partnering with the business; managing the scheduling and facilitation of compliance activities; improving knowledge management and sharing. I advised him I had looked across the business for suitable alternative roles but to my knowledge none were available. I advised Mr Knack that the purpose of today’s meeting was to consult with him about alternative roles. Mr Knack sought clarification from me that this role (50% Northern/50% ANZ) was definitely no longer required and asked if the Regional Director Qld/NT had been consulted. I confirmed he had.”

[52] Mr Cisecki stated that the Applicant raised an interest in a Project Manager Role and Mr Ciskeci confirmed to the Applicant at the meeting that he would make enquiries about possible Project Management roles as they had not previously been considered as redeployment options. The Applicant was stood down for 2 days with pay (after the Respondent initially conveyed the decision) to consider the decision and for the Respondent to make further enquiries. Another meeting was convened on 28 November 2015, which was rescheduled for 1 December 2014. The Applicant’s position was further confirmed to be redundant at this meeting.

[53] The obligation to consult is not an absolute obligation to consult. The Full Bench in Ulan Coal Mine Limited v Henry Jon Howarth and others (Ulan No. 1) said:

“We do not consider, in the particular circumstances of the present matter and having regard to the obligation under sub-clause 23.1 of the Agreement, that a further round of discussions was required to be held by the Company with the employees to be dismissed, either separately or as a group. This does not mean that such separate discussions might not be worthwhile and appropriate e.g. as part of the consideration of measures to mitigate the adverse affects of terminations or to ensure that opportunities for other employment and assistance are properly examined. However they are not part of the discussions envisaged and required under sub-clause 23.1 of the Agreement and that is the test in these particular circumstances. In different circumstances this will of course vary according to the terms of particular awards and agreements.” 13

[54] The obligations on the Employer include a responsibility to ensure that alternatives to redundancy have been exhausted, including redeployment to a suitable position (as is further considered below). Inherent to this exercise of considering any appropriate redeployment opportunities, consultation with the Applicant is required. The Applicant was consulted and, after the Applicant raised an interest in Project Management roles, opportunities for redeployment in this area were explored by the Respondent.

[55] On the evidence, the Applicant’s duties are not aligned to those in the Award. Given there was no applicable Award or Agreement as per s.389(1)(b), there was no obligation to consult with the Applicant. The Respondent did, however, have a discussion with the Applicant regarding the redundancy decision, and then stood him down for 2 paid days to consider the redundancy, and to raise any issues, while the Respondent made further enquiries relating to redeployment opportunities. Accordingly, it is considered that the requirement to consult, in accordance with s.389(1)(b), has been met.

s.389(2) - whether reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.

[56] The Applicant contended that it was reasonable, for the Respondent, to have given the Applicant another job within SMEC. The Applicant referred to the position he previously held of BMS Representative, as an example of a position he may have been redeployed to.

[57] The Applicant also stated that no evidence had been provided, as to what other positions were explored. The Applicant submitted that it was not stated that he was unsuitable for the new position of National BMS Manager, only that he was not being offered that position.

[58] The Applicant stated he was unaware of alternative positions of employment except for the BMS Representative position which had comprised 50 percent of his duties at the time the redundancy was effected. The Respondent stated that this job was not available to redeploy him to, as the role was not being undertaken by any one person, but had been split between a variety of employees, as evidenced by the email that had been tendered by the Applicant, dated 10 December 2014 14.

[59] Mr Cisecki set out in his statement that he investigated suitable roles within Australia and internationally, and there were no suitable redeployment options that matched the Applicant’s skill and experience.

[60] Mr Cisecki stated he had assessed the Applicant’s skills, knowledge and abilities for redeployment into the revised national BMS Manager role and deemed that he was unsuitable for the role, as he lacked the necessary project management, business acumen, relationship building and process improvement skills. Further, Mr Cisecki stated that the Applicant did not, either in the meeting on 26 November 2014 or 1 December 2014, express an interest in performing the newly created 100% National BMS Manager position.

[61] Further, Mr Cisecki stated that, after the Applicant raised an interest in redeployment to a Project Management position, he consulted with Regional Directors nationally about redeployment opportunity to a Project Management position. There was one Project Management position identified, but the role necessitated an engineering qualification and certification which the Applicant did not have. Mr Cisecki also consulted the Director of Corporate Affairs, who advised there were no Corporate Project Management Roles vacant.

[62] In examining the redeployment process in Ulan Coal Mines Limited v Honeysett and others (Ulan No. 2) 15 the Full Bench of Fair Work Australia (predecessor to the FWC) stated:

“...The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the role, 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.”  16

(emphasis added)

[63] Further, the Full Bench in Ulan No. 2 stated, in assessing whether redeployment was possible, as follows:

“...It is an essential part of the concept of redeployment under s.389(2) that a redundant employee be placed into another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard.

[35] Where an employer is part of a group of associated entities which are all subject to overall managerial control by one member of the group, similar considerations are relevant. This seems to us to be a necessary implication arising from the terms of s.389(2)(b). While each case will depend on what would have been reasonable in the circumstances, subjecting a redundant employee to a competitive process for an advertised vacancy in an associated entity may lead to the conclusion that the employee was not genuinely redundant.”  17

(emphasis added)

[64] In the case of Technical and Further Education Commission T/A TAFE NSW v Pykett (Pykett) 18 the Full Bench considered the proper construction of s.389(2) which, it held, involved a consideration of whether there was work the employee could reasonably have been engaged to perform with their employer, “whether or not it constituted an existing identified position or job”19. The Full Bench observed that an employer who sought to rely on the genuine redundancy objection would normally be expected to adduce evidence that would include “canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee”20.

[65] As a result of the decisions in Ulan No. 2 and Pykett, in terms of considering redeployment, a two step process may be identified. First, a job, position or other work must be able to be identified, and second, redeployment to this job, position or other work must be reasonable in all of the circumstances.

[66] The requirement to redeploy is framed in the past tense and therefore, as noted in Pykett 21, directs attention to the circumstances which existed at the time the person was dismissed. In Ulan No. 2, it was held that the question of whether redeployment would have been reasonable, is to be applied at the time of the dismissal22.

[67] In Ventyx Pty Ltd v Murray 23 (Ventyx), prior to informing the applicant that their position had become redundant, the employer had exhausted all redeployment options for the applicant in accordance with its Redundancy Policy. It was held that:

“[160] True it is that Ventyx handed to Mr Murray a list of jobs available across the global business, but that was a step that came after Ventyx had exhausted its investigation into redeployment options for the Applicant under its redundancy policy. As Counsel for Ventyx claimed, the provision of further information about the organisation was not a step in a redeployment process itself, and cannot in some manner be held to reflect adversely on the appellant as a consequence.” 24

(emphasis added)

[68] In the case of Teterin and Others v Resource Pacific Pty Limited T/A Ravensworth Underground Mine  25 (Teterin), the Full Bench considered which party bore the evidentiary burden in relation to satisfying the Commission that redeployment would have been reasonable in all the circumstances. The Full Bench found that the employer respondent in that case would have satisfied the evidentiary onus, in any case, due to the extensive nature of the evidence it led:

“There can be no doubt that, to the extent the respondent in the proceedings at first instance bore an evidentiary onus with respect to s.389(2), it discharged that onus. It called extensive evidence, principally from Mr Kirsten, concerning the steps the respondent had taken to explore redeployment opportunities and why, ultimately, the appellants could not be redeployed... 26”

[69] In Aralar v Rio Tinto Aluminium Ltd T/A Rio Tinto Alcan - Gove Operations (Aralar) 27 it was submitted that Rio Tinto Alcan - Gove Operations had exhausted all reasonable redeployment opportunities within the business and associated entities prior to making Mr Aralar redundant, and the Respondent submitted that after Rio Tinto Alcan -Gove Operations had exhausted its redeployment search, it invited Mr Aralar to apply for roles within other Rio Tinto entities, over which the company had no overriding central managerial control.

[70] The below extract from the Decision of Senior Deputy President Richards in Roy v SNC-Lavalin Australia Pty Ltd 28 (Roy v SNC) was relevant in considering the reasonableness to redeploy employees to Australian associated entities of the Respondent over which it has little or no overriding central managerial control:

“[41] Other difficulties arise in respect of overseas entities within a company group where those entities operate their own distinct human resource functions, policies and procedures and there is no overriding central managerial control...”

[71] In the current case, no associated entities were raised, relevant to the redeployment exercise. On the evidence of Mr Cisecki, redeployment opportunities were considered for the Applicant and no particular roles were cited by the Respondent, as being suitable.

Conclusion

[72] Where the Respondent raises a jurisdictional objection, the onus is on the Respondent to satisfy the Commission of their case. 29

[73] The Respondent has established that the dismissal was a case of genuine redundancy that the job the Applicant performed was no longer required to be performed, and that (whilst the Applicant’s role did not fall within the coverage of the Award), appropriate consultation was undertaken with the Applicant.

[74] On the basis of the facts of the matter, as per the evidence and submissions, the Applicant’s termination was a case of genuine redundancy in accordance with s.389(1)(a), s.389(1)(b) and (2) of the Act. The jurisdictional objection by the Respondent, that is, that the termination of employment was a genuine redundancy, is upheld and therefore, the Applicant was not unfairly dismissed, but genuinely made redundant.

[75] Accordingly, the Applicant’s application, filed pursuant to s.394 of the Act, is dismissed, in accordance with s.389 of the Act.

[76] I Order accordingly.

COMMISSIONER

Appearances:

G.S. Knack

P. Copeland, of Copeland Workplace Law, for SMEC Services Pty Ltd

Hearing details:

2015.

Brisbane:

April 15.

 1   PN137

 2   PN75 to PN101

 3 Supplementary Statement of Jonathan Cisecki dated 9 April 2015 at [5].

 4   Ulan Coal Mines Limited v Howarth and others[2010] FWAFB 3488 at [16] to [20]

 5   Mackay Taxi Holdings Ltd T/A Mackay Whitsunday Taxis v Wilson[2014] FWCFB 1043 at [39]

 6   Linda Grove v Help Enterprises[2014] FWC 3168

 7   Grove v Help Enterprises[2014] FWCFB 6288

 8   Ibid at [28]

 9   Ulan Coal Mines Limited v Howarth and others[2010] FWAFB 3488 at [16] to [20]; Mackay Taxi Holdings Ltd T/A Mackay Whitsunday Taxis v Wilson[2014] FWCFB 1043 at [39]

 10   PN594 - PN599

 11 Further Supplementary Statement of Jonathan Cisecki dated 13 April 2015 at [1].

 12   PN64

 13   [2010] FWAFB 3488 at [31].

 14   Exhibit 2 - Email dated 10 December 2014

 15   [2010] FWAFB 7578.

 16 Ibid at [28].

 17   Ibid at [34] - [35].

 18   [2014] FWCFB 714

 19   Pykett at [18]

 20   Pykett at [37]

 21   [2014] FWCFB 714 at 24

 22   At [28]

 23   Ventyx Pty Ltd v Murray [2014] FWCFB 2143.

 24   Ventyx at [160]

 25   Bruce Teterin, Ronald Leggett, Danny Garaty, Steven O'Donnell, Phillip Gardner, Joseph Fogg, Michael Bower, Anthony Anderson, Jason James, Michael Roe, Paul Watkins, Peter Lye v Resource Pacific Pty Limited t/a Ravensworth Underground Mine[2014] FWCFB 4125

 26   at [30]

 27   [2014] FWC 7376

 28   [2013] FWC 7309

 29   Crema and Others v Abigroup Contractors[2012] FWA 5322, Commissioner Cribb, at [81].

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