Mr Kelvin Weale v Puma Energy Australia

[2019] FWC 8342

[2019] FWC 8342

FAIR WORK COMMISSION

DECISION

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

Mr Kelvin Weale
v
Puma Energy Australia
(U2019/7906)

COMMISSIONER SIMPSON BRISBANE, 9 DECEMBER 2019

Termination of employment – whether position still required – whether consultation process genuine – whether other positions suitable for redeployment – dismissal a genuine redundancy – application dismissed

[1] On 18 August 2019 Mr Kevin Weale (the Applicant) made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 for an unfair dismissal remedy against Puma Energy Australia (the Respondent).

[2] A conciliation conference was held on 5 September 2019, but the matter did not resolve. The matter was allocated to me and I held a directions hearing on 2 October 2019 and issued directions for filing of material.

[3] The Respondent raised the jurisdictional objection that Mr Weale’s dismissal was a case of genuine redundancy and on that basis, Mr Weale was not able to pursue an unfair dismissal application.

[4] I determined that both the jurisdictional objection and the merits application should be heard at the same time. The arbitration hearing for the matter took place on 25 November 2019.

BACKGROUND

[5] Mr Weale was employed as Maintenance Manager Central Queensland for Puma Energy Australia. Mr Weale commenced employment with Puma Energy Australia on 23 July 2013.

[6] On 7 May 2019, the Respondent made a business decision whereby several positions were made redundant, including Mr Weale’s position. After events that are described in detail below, Mr Weale was made redundant by the Respondent on 31 May 2019.

[7] On 31 May 2019, Mr Weale was provided with a termination letter dismissing him and stating the dismissal was to take effect on 5 July 2019. Mr Weale made a request to leave the business on 1 July 2019 to travel overseas for personal reasons which was granted by the Respondent.

CONSIDERATION

[8] Section 385 provides:

“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.”

[9] Section 396 says 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.”

[10] As is made clear from the above provisions of the Act I must determine whether the termination of Mr Weale was a genuine redundancy before considering the merits.

[11] Section 389 provides:

“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.”

Did the Applicant’s employer no longer require the Applicant’s job to be performed by anyone because of operational requirements of the employer’s enterprise?

[12] The Respondent submitted that a decision was made to implement the Asset Guardian (TAG) as its computer maintenance management system in order to improve operational efficiencies.

[13] The Respondent submitted that as a result of the implementation of TAG, it made a decision that it no longer required the Mr Weale’s position of Maintenance Manager Central Queensland (the Applicant's position).

[14] The Respondent submitted that the implementation of TAG required the Respondent to restructure their Asset Services Team which employed the Applicant and a number of other employees. The Respondent submitted the Asset Services Team consisted of 13 employees and Mr Weale for a total of 14 employees, while Mr Weale submitted there were 15 employees in total including Mr Weale.

[15] The Respondent submitted that the requirement for the restructure included:

“(a) requiring all roles to be individually responsible for efficiency improvements;

(b) eliminating some of the existing roles (including the Applicant's Position) and redistributing the duties and locations of some of the eliminated roles to new more efficient roles, for instance the Respondent:

(i) centralised the senior roles to the Brisbane Head Office to align with the rest of the Respondent's business and to facilitate interdepartmental relations;

(ii) allocated regional managerial roles to strategically located offices, such as Darwin and Brisbane; and

(c) keeping only some of the existing roles unaltered.” 1

[16] The Respondent further submitted that the Applicant’s position ceased to exist because:

“ (a) the Maintenance Manager role was transferred to Brisbane (and had expanded responsibilities by reason that it covered Queensland, New South Wales, Victoria and South Australia);

(b) a new Maintenance Supervisor Role based in Rockhampton was created which was responsible for (among other things) the remaining duties from the Asset Services Coordinator role and the Applicant's Position; and

(c) the remaining roles that survived the restructure and which were based in Rockhampton were supervisor roles (not managerial roles).” 2

[17] The Respondent submitted that the new roles created were more centralised and had reduced authorities and accountability, and as a result, the Applicant's Position was no longer commercially sustainable because the Respondent determined that there was no longer a need for a separate role to be responsible for continuing improvements in efficiency (i.e. the Applicant's Position) as it was unnecessary and overlapped with other new roles. 3 The Respondent filed further submissions on 13 November 2019 in relation to the merits of the application. The Respondent relied upon the witness statement and evidence of Mr Jonathan O’Grady4 and Ms Tamara Neyland.5

[18] Mr Weale submitted that contrary to the Respondent’s submissions, there was no apparent change in the operational requirements of the business. Mr Weale submitted that the function of the Asset Services department remained the same other than the introduction of TAG.

[19] Mr Weale submitted that while TAG was introduced to improve operational efficiencies, the Respondent made nine positions redundant and created ten new positions within the Asset Services department to facilitate the new TAG system, and that there are now 16 positions within the Asset Services department.

[20] Mr Weale provided an initial set of material in accordance with my directions on 23 October 2019, 6 and further material on 13 November 2019.7 Mr Weale also provided a set of 13 documents.

[21] Mr Weale accepted that as a result of the changes only one role remained to be performed in Rockhampton and there were two employees remaining in Rockhampton from the old structure.

[22] Mr Weale’s evidence was generally to the effect that in truth his former role survived the restructure and was simply given a different label and a lower rate of pay.

[23] However, having had the opportunity to consider the evidence of the witness who appeared at the hearing it is plain that the new computer program introduced technological change that would result in changes to job functions in areas such as planning, strategic decision making, budgeting, costing and supervision.

[24] I am satisfied on the basis of the evidence that the new roles have consolidated various roles previously performed by Mr Weale into different roles. I am satisfied that the Respondent made a business decision to require more management functions to be based from Brisbane which it is entitled to do and that the regional roles remaining have less agency and authority.

[25] I am satisfied that parts of Mr Weale’s position still being performed have been folded into other positions and on that basis Mr Weale’s job was no longer required to be performed by anyone because of the operational requirements of the business.

Did the Respondent comply with any obligations in a modern award or enterprise agreement that applied to the employment to consult about redundancy?

[26] It is an agreed fact that Mr Weale is covered by the Puma Energy (Australia) Collective Agreement 2015 8(the Agreement).

[27] The relevant consultation process is found in Schedule 2 to the Agreement. The relevant clauses read:

“1.2 Consultation

(a) In the event the Employer has made a definite decision to introduce a major workplace change to production, program, work organisation model, structure or technology that is likely to have a significant effect on Employees, the Employees will be notified prior to the introduction of the major change.

(b) A major change is likely to have a significant effect on Employees if it results in:

(1) the termination of the employment of Employees;

(2) major change to the composition, operation or size of the Employer’s workforce or to the skills required of Employees;

(3) the elimination of job opportunities;

(4) the alteration of hours of work (including changes to regular roster or ordinary hours of work);

(5) the need to retrain Employees;

(6) the need to relocate Employees to another workplace;

(7) the restructuring of jobs.

(c) The Employer will discuss with the relevant Employee/s, and provide in writing, details of the major change, all relevant information about the expected effects that the major change is likely to have on the Employee/s, the measures the Employer is taking to avert or mitigate the adverse effect of the major change on the Employee/s and any other matters that are likely to affect the Employee/s.

(d) Notwithstanding this, the Employer is not required to disclose confidential or commercially sensitive information.

…

(f) The Employer will give prompt and genuine consideration to matters raised about the major change by the relevant Employee/s.” 9

[28] The Respondent submitted that it complied with the consultation requirements of the applicable enterprise agreement. The Respondent submitted that the following consultation process was undertaken:

“(a) on 7 May 2019, held a meeting with all employees in the Asset Services team, where in which the Respondent, through the assistance of a written PowerPoint Presentation, notified the Applicant of the proposed changes, and (among other things) explained in detail the reasons for the re-structure, what the new structure would entail (i.e. who would be affected) and the next steps to be followed;

(b) on 8 May 2019, a written letter was issued to the Applicant informing him of (among other things):

(i) the restructure;

(ii) the reasons for the restructure;

(iii) the effects of the restructure, i.e. the Applicant's Position would no longer be required;

(iv) the measures which would be taken to avert or mitigate the adverse effects of the restructure, i.e. the redeployment process and the Applicant's redeployment options;

(c) between 9 May 2019 to 13 May 2019, through Mr O'Grady, answered the Applicant's queries through numerous telephone calls and emails; and

(d) on 15 May 2019 (in addition to numerous telephone calls and emails), held an individual meeting with the Applicant to discuss his personal circumstances, the new roles available, the selection criteria of those new roles, the new reporting lines as well as the location and salaries of those new roles.” 10

[29] In response to the Respondent’s submissions, Mr Weale submitted that the PowerPoint presentation on 7 May 2019 was not genuine on the basis it constituted perfunctory advice on what was going to happen next, and at no time during the presentation was Mr Weale or any other affected employee given a bona fide opportunity to engage in meaningful consultation.

[30] In relation to the meeting of 15 May 2019, Mr Weale submitted that he received a phone call from Mr Jon O’Grady on the same day, after working hours at approximately 4.45pm, and was asked if he could be available for a one to one telephone conversation to discuss his personal circumstances in 10 minutes’ time with Ms Neyland and Mr O’Grady.

[31] Mr Weale submitted that during this meeting he was questioned about several issues including:

a) Why Mr Weale had not applied for any of the new positions;

b) Why Mr Weale would not be prepared to relocate to Brisbane;

c) Why Mr Weale would not consider the Supervisor’s position in Rockhampton; and

d) Why Mr Weale would not consider taking a 15% to 20% reduction in remuneration.

[32] Mr O’Grady gave evidence that in the telephone call of 15 May 2019 Mr Weale requested that based on his experience and service, the Respondent should consider increasing the salary benchmark for him. Subsequent to this telephone call, Mr O’Grady said he consulted with Ms Neyland and sent an email to Mr Weale copying in Ms Neyland increasing the salary benchmark to a maximum of $93,000 per annum and that a tool of trade vehicle would be included.

[33] Mr Weale denied that he requested his salary be increased. Mr Weale’s evidence was that Mr O’Grady advised him of the remuneration for the Maintenance Supervisors role 15 May meeting. Mr Weale said he advised Mr O’Grady as to why he would not consider the Maintenance Supervisors position and Mr Weale said that as he had worked for the respondent for nearly 6 years without a pay increase, and his personal circumstances would not allow him to take a 15% to 20% drop in remuneration, he could not understand a supervisor’s position would be paid less than a technician that was being paid $92,000. 11

[34] Mr Weale’s version of events was denied by the Respondent. In Mr Weale’s second set of material he set out that he maintained the Respondent failed to consult. It was put to Mr Weale that on 2 May Mr O’Grady advised him of matters including the planned discussions on 7 May. Mr Weale said in his oral evidence Mr O’Grady said to him that his position was redundant.

[35] Mr Weale agreed he attended the presentation on 7 May. Mr Weale claimed he did not have an opportunity to ask questions on 7 May. Mr Weale said on 8 May he received a letter advising that his position had been made redundant and some further information was provided on next steps.

[36] Mr Weale said that he couldn’t recall if he communicated with Mr Neyland before 8 May 2019. He agreed that he sent an email to Mr O’Grady on 8 May with questions including regarding salary benchmarking. Mr Weale accepted that the Respondent replied on this issue and made adjustments to salary benchmarks.

[37] Mr Weale said he had a telephone conversation with Mr O’Grady and asked if a position to be based in Brisbane could be based in Rockhampton and that was rejected, leaving only the supervisors position. Mr Weale said the day after discussions on 15 May he was told if he applied for and succeeded in obtaining the Rockhampton based supervisors role he would receive $93,000.

[38] Mr Weale agreed that he emailed a letter to the Respondent on 21 May 2019 the effect of which was that none of the roles were suitable to him. Mr Weale also indicated he did not believe he should be required to apply for the positions. Mr Weale was clear in his evidence he was not prepared to relocate to accept a position offered, and if the job was not in Rockhampton he was not prepared to do it.

[39] On 31 May Mr Weale said he had a phone call with Mr O’Grady who told him that the Respondent was going to terminate his employment. Mr Weale accepted he was paid notice and 10 weeks redundancy pay.

[40] Mr O’Grady rejected the notion in his oral evidence that Mr Weale was not consulted properly and referred to what he called numerous phone and email contacts between 2 May and 21 May 2019.

[41] Mr Weale cross examined Mr O’Grady and Ms Nyland about a discrepancy between the qualifications required as described in internal advertising compared to external advertising on the website Seek. I accept on the evidence that the apparent differences was an error and nothing of importance turns on that issue.

[42] Ms Nyland gave evidence that the intent of the initial contact on 2 May was to advise of the proposed restructure to be elaborated on at presentations on 7 May. Ms Nyland said on 7 May the old structure and the new structure were explained including positions that could be applied for. Ms Nyland said that she kept a spreadsheet recording information on consultation with all staff which was extensive.

[43] Ms Nyland said Mr Weale was clear that he wanted to be based in Rockhampton and would not consider moving from Rockhampton. Ms Nyland said the expression of interest for Rockhampton was only internal and not external.

[44] I am satisfied on the basis of the evidence that Mr Weale was given multiple opportunities to ask questions as evident from email correspondence from 8 to 15 May 2019 and indicates he took the opportunity to raise issues and received responses from the Respondent. I am satisfied that the Respondent complied with its obligations to consult as required by the relevant part of the enterprise agreement.

Was it 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?

[45] The Respondent submitted that as a result of the TAG restructure Mr Weale’s position ceased to exist and it identified suitable roles for redeployment for Mr Weale as the transferred and expanded Maintenance Manager role now based in Brisbane and a new Maintenance Supervisor role based in Rockhampton.

[46] The Respondent submitted that on 15 May 2019, the Respondent provided a list of redeployment options to Mr Weale, discussed the new positions with Mr Weale, and encouraged him to apply for these positions.

[47] The Respondent submitted that they considered they required a competitive selection process involving staff applying for roles because there were a number of employees applying for limited vacant roles, the Respondent required a particular skill set for those roles, and that some of the new roles were significantly different to the redundant roles.

[48] Ms Neyland gave evidence that on 21 May 2019, Mr Weale (via an email to Ms Neyland) rejected the invitation to apply and be considered for the Maintenance Supervisor role, and the Maintenance Planner and the Maintenance Manager roles.

[49] The Respondent submitted Mr Weale advised that the roles did not interest him because he was unable to locate to other geographical regions such as Brisbane, and the salaries for those roles were lower than what he was on in his previous position.

[50] It was clear from the evidence that Mr Weale was not interested in relocating. That left only the Rockhampton based supervisor role. It is common ground between the parties that there remained two employees based in Rockhampton and only one position was available. On that basis it was reasonable for the Respondent to call for expressions of interest and not to have redeployed Mr Weale into the Rockhampton role automatically. Mr Weale decided not to apply for the role. Mr Weale made clear in his correspondence of 21 May 2019 he did not want any of the roles.

[51] The fact that Mr Weale was required to apply for the new positions does not in this case point to unreasonableness.

CONCLUSION

[52] Having considered each of the matters in s.389 of the Act I am satisfied that this is a case of genuine redundancy. On that basis the Commission does not have jurisdiction to deal with the unfair dismissal application and therefore the application is dismissed.

[53] The Respondent included in its submissions on 13 November 2019 a brief submission on costs.

[54] Whilst I would accept that on the material filed the Respondent’s case appeared the stronger one, Mr Weale at all times maintained certain matters of fact that could ultimately only be determined by evidence. Mr Weale always maintained that firstly his role had survived, or put another way his role was rebadged as something else but was essentially still the same role. Mr Weale also maintained that the Respondent’s consultation was perfunctory and did not meet the requirements of the enterprise agreement. Finally he also argued that he should have been redeployed and not be required to apply for one of the new roles in the new structure.

[55] While I have not found in favour of Mr Weale’s arguments, I am not satisfied given the nature of the issues that the application was vexatious or without reasonable cause, or that it should have been reasonably apparent to Mr Weale that his application has no reasonable prospect of success.

[56] I am also not satisfied that Mr Weale’s motives were predominantly to harass, embarrass or gain a collateral advantage against the Respondent. It appeared to me he was genuine in his views despite it being found they were not made out on the evidence. On that basis I do not intend to issue an order for costs.

COMMISSIONER

Appearances:

Mr K Weale on behalf of himself

Mr H Lepahe of HWL Ebsworth on behalf of the Respondent

Ms T Neyland on behalf of the Respondent

Hearing details:

2019

25 November

Brisbane

Printed by authority of the Commonwealth Government Printer

<PR715003>

 1   Respondent’s Submissions (Jurisdiction of the Application) 23 October 2019 at 8

 2   Ibid at 10

 3   Ibid at 11

 4   Exhibit 3

 5   Exhibit 4

 6   Exhibit 1

 7   Exhibit 2

 8   [2015] FWCA 1756

 9   Ibid, Schedule 2

 10   Respondent’s Submissions (Jurisdiction of the Application) 23 October at 15

 11   Applicant’s Reply Submissions 13 November 2019 at C(4)