Mr Michael Ball v Metro Trains Melbourne T/A Metro Trains

[2012] FWA 7729

[2012] FWA 7729

FAIR WORK AUSTRALIA

DECISION

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

Mr Michael Ball
v
Metro Trains Melbourne T/A Metro Trains
(U2012/1114)

COMMISSIONER ROE MELBOURNE, 11 SEPTEMBER 2012

Termination of employment - genuine redundancy.

[1] The matter arises from an application filed on 14 May 2012 under s 394 of the Fair Work Act 2009 (the Act) by Mr Michael Ball (the Applicant) for relief in respect to the termination of his employment from Metro Trains Melbourne T/A Metro Trains (Metro Trains or the Respondent).

[2] Following an unsuccessful conciliation conference the matter proceeded to arbitration. The parties elected to proceed to a hearing on 6 September 2012.

[3] I granted permission to Ms Anthony from APESMA lawyers to represent the Applicant.

[4] The Applicant was notified of his dismissal at a meeting on 17 April 2012 and the dismissal took effect on 30 April 2012. There is no dispute that the Applicant was dismissed at the initiative of the employer. The reason given for the dismissal was that the position of Vehicle Fleet Manager or Manager, Motor Fleet (the name of the position had been changed to Manager, Motor Fleet) had become redundant. The Applicant had been employed by the Respondent since 12 June 2007 although his role had changed during the period of his employment. The Applicant was employed in the position of Vehicle Fleet Manager from 1 March 2010. The Applicant was paid redundancy entitlements in accordance with the MainCo Melbourne Enterprise Agreement 2009 (the Agreement). There is no dispute that the Agreement applied to the employment of the Applicant. Metro Trains is a large business.

[5] It is not in contention that the main role of the Vehicle Fleet Manager as set out in the letter of appointment was:

“The purpose of your new position will be to maintain and review road fleet and infrastructure plant asset maintenance processes and programs, analyse and monitor road fleet and infrastructure plant data systems as well as co-ordinate motor fitters and workshop activities. It will also involve the preparation of reports and graphs that identify infrastructure asset maintenance performance trends and provide advice to key stakeholders on performance information and improvement.”

[6] In April 2012 some 50 positions were made redundant as part of what was known as the Economic and Efficiency process to achieve targeted savings of $20 million per annum. The restructure involved the contract management of motor vehicles becoming the responsibility of the Commercial Department not the Infrastructure Department and the administration and day to day management and reporting requirements for motor vehicles was to be outsourced to Orix. The Applicant argues about the extent of outsourcing which was actually implemented following the restructure. However, there is no dispute that there has been a restructuring resulting in changes in the number of jobs and the job roles including in the Department in which the Applicant worked and affecting the job of Vehicle Fleet Manager. Further there is no dispute that these are changes due to the operational requirements of the employer’s enterprise.

[7] The Applicant sought to introduce some late evidence. The Respondent agreed to my proposition that they accepted that the 4 fitters who used to report to the Applicant prior to his termination now reported to Mr Brownlee in the position of Acting Vehicle Plant Manager. On this basis the Applicant did not persist with the late evidence.

[8] I put to the parties and they agreed that the main issues in the case are:

• Was the Applicant’s job made redundant in the sense that the job was no longer required to be performed by anyone due to changed operational requirements? In particular, is the Applicant’s job essentially now being performed by the Vehicle Plant Manager or is the Applicant’s job in part performed by the Transport Contract Manager, in part performed by the Vehicle Plant Manager and in part performed by others or no longer performed?



• Would it have been reasonable in all the circumstances for the Applicant to be redeployed? The parties agree that there is no relevant associated enterprise. What were the vacant jobs at Metro Trains which the Applicant had the skills, qualifications and experience to perform? To what extent were the opportunities for redeployment properly explored?



• Did Metro Trains comply with any obligation in the Agreement to consult about the redundancy? In particular what was the extent, timing and nature of any consultation with APESMA and with the Applicant?

The threshold issue - genuine redundancy.

[9] The threshold issue is whether or not the dismissal was a genuine redundancy. Section 385(d) of the Act provides that if I am satisfied that the dismissal is a genuine redundancy then it cannot be an unfair dismissal. Genuine redundancy is defined as follows by the Act:

“389 Meaning of genuine redundancy

(1) A persons 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.”

[10] The Agreement imposes an obligation in respect to consultation about change as follows:

“27 CONSULTATION

27.1 Introduction of Change

Prior to making a definite decision to implement major change in matters pertaining to the employment relationship in any of the work places covered by this Agreement, where that change is likely to have a significant effect on Employees, the Company will consult with Unions and Employees.

The Company shall discuss with the Employees affected and their Unions, the introduction of the changes, the effects that changes are likely to have on Employees, and shall give prompt consideration to matters raised by the Employees in relation to the changes.

For the purposes of such discussion, the Company shall provide in writing to the Employees concerned, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on Employees and any other matters likely to affect Employees provided that the Company shall not be required to disclose confidential information, the disclosure of which would be detrimental to the Company's interests.

The Company, Employees and Unions agree that continuous improvement and the acceptance of ongoing change are fundamental to the success of the business and ensure the ongoing development of new methods to improve productivity and efficiency.”

[11] The Redundancy Clause of the Agreement is as follows:

“37 REDUNDANCY

An Employee, whose position is determined by the Company as being surplus to requirements, shall be offered an alternative position within the Company when that is a viable option.

Should there be no alternative position available within the Company or, where applicable, the Employee is not offered a position (in accordance with clause 41) with an organisation taking over under transmission of business, the following redundancy package shall be provided to the Employee on separation from the Company:

• Four (4) weeks severance pay; plus



• Three (3) weeks pay, at the Employee's ordinary rate at the time of separation, for each completed year of continuous service with the Company, Alstom Melbourne Transport Limited (AMTL), National Express and/or Thiess Infraco, up to a maximum of twenty-one (21) weeks; plus



• For Employees with previous Public Transport Corporation (PTC) service four (4) weeks in lieu of notice and two (2) weeks pay for each completed year of service -up to a maximum of twenty (20) weeks.




Employees who have terminated employment with one of the following organisations shall only be entitled to recognition of years of service under this clause since they were last re-employed by one of these organisations: PTC, the Company, AMTL, National Express and Thiess Infraco. In a transfer of business situation, a transfer of employment from one organisation to another shall not be considered termination of employment under this clause.”

[12] The Respondent submits that Clause 27 is not a clause about consultation in respect to redundancy and that therefore s. 389(1)(b) does not apply. The Applicant submits that Clause 27 is a clause which requires consultation in respect to the restructuring resulting in potential redundancy of the Applicant and that the required consultation did not occur. The Respondent submits that there was a limited opportunity for consultation about potential change.

[13] The Respondent submits that they considered opportunities for redeployment and that there were no reasonable opportunities for redeployment. It is not suggested that there are any opportunities within an associated entity of the employer. The Applicant submits that opportunities for redeployment were not adequately considered and that the Applicant should have been redeployed.

[14] The Respondent submits that the job previously performed by the Applicant is no longer required to be performed by anyone. The job or jobs with responsibility for aspects of the Applicant’s job differ substantially from the Applicant’s job. The Applicant argues that the essential feature of his job remains and is still required to be performed.

The matters to be determined in respect to genuine redundancy and the evidence relevant to them.

[15] In this case there are essentially three matters to be determined.

• Firstly, does the restructure mean that the job previously performed by the Applicant is no longer required to be performed by anyone?



• Secondly, does Clause 27 impose a requirement to consult in respect to redundancy? If so did consultation occur consistent with the requirements of the Agreement Clause 27?



• Thirdly, would it have been reasonable in all the circumstances for the Applicant to be redeployed within the employer’s enterprise?

[16] The Applicant was informed on 17 April 2012 that an organisational review had abolished the Motor Fleet Department and consequently the position of Manager, Motor Fleet was redundant. He was handed a letter to this effect dated 11 April 2012. He was informed that three of those who reported to the Applicant were also to be retrenched. He was advised that 17 April 2012 would be the last day of his employment and that opportunities for redeployment had been considered and that there were no opportunities for redeployment. He was shown a list of 9 current vacant positions. The Applicant asked for and was provided with the position description for the position of Procedures and Document Engineer. He was provided with this position description a day after the meeting. After the 17 April 2012 the Applicant had meetings with the Respondent concerning outplacement services and issues with the payment of his entitlements. On 30 April the Applicant received correspondence dated the 26 April 2012 which advised that the Respondent had agreed to extend the period of employment from 17 April 2012 to 30 April 2012 to enable the Applicant to explore redeployment opportunities. The letter advised that no suitable alternative position had become available. The final payment details were provided.

[17] The Applicant says that prior to 30 April 2012 at no time was he advised that his employment was being extended to enable exploration of redeployment opportunities. The only discussions in the two week period related to outplacement and entitlements. The Applicant says he was surprised to receive the letter advising him of the extension. He was told on 17 April 2012 to leave the premises, clear his desk and not return to work. He says he complied with these instructions and they were not subsequently altered.

[18] The Applicant says that the role continues to be performed by Ian Brownlee. The Applicant refers to email correspondence in respect to motor fleet issues in which a Grant Heale states that “Unless you can provide any correspondence from the previous Fleet team I am unaware of your requirements. The representative from Orix and I are only assisting in the fleet dept. until a new manager can be found and unfortunately the previous team did not keep any records of which Sprinters were going where.” 1 It is not contested that the four fitters who reported to the Applicant now report to Ian Brownlee which confirms that supervision of vehicle maintenance is a part of both the former role and the new role.

[19] The Respondent says that the restructuring involved a number of changes to the areas of the Applicant’s work responsibilities including that the day to day responsibility for the fleet he was managing was outsourced to Orix and any remaining responsibilities were allocated to different departments. The Respondent submits that as a result of the restructure a new job of Transport Contract Manager has been created. Sometime after the restructure and the redundancies were implemented a position of Vehicle Plant Manager was created. This is the position currently performed by Ian Brownlee. The Applicant’s job was to coordinate, assist, maintain and participate in overseeing vehicles in the Infrastructure Division of Metro Trains. The Respondent argues that the Transport Contract Manager role is about management of the whole of vehicle transport including that provided by a range of external providers including buses and taxis. The focus of the new job is on the management of outsourced service providers, the effective management of cost, ensuring compliance including FBT, fleet efficiency and effectiveness, contract management, and development of new contracts and agreements. The new position requires a tertiary qualification in business management or equivalent as well as relevant experience in the bus and taxi industry. The Respondent argues that the recently created Vehicle Plant Manager position does perform some of the functions that were performed by the Applicant including the Applicant’s role in supervision of the work of the fitters in plant and vehicle maintenance. However, the Respondent argues that the role of Vehicle Plant Manager includes a range of other responsibilities which were not included in the Applicant’s former role.

[20] The Respondent says that in December 2011 the Applicant was at a meeting about the need to improve efficiency in the management of the road vehicle fleet which was attended by the Risk and Internal auditors. The Respondent says that the Applicant could at this meeting have explained to the auditing team why changes were not necessary. The meeting notes refer to the fact that the “fleet audit was a routine audit on our annual plan. Julie (auditor) had been carrying out the fieldwork and a number of concerns as to process discipline had arisen.” 2 The meeting notes do not suggest that the Applicant was advised of potential significant change and given an opportunity to respond. The audit report was finalised in January 2012. The Respondent says that the report contained confidential information disclosure of which would have been detrimental to its interests. In particular the Respondent says that the fact that the report was critical of the current administration of the motor fleet and that outsourcing to Orix was being considered would be information in this category. Mr Kelly conceded that the December 2011 meeting was not a consultation meeting about workplace change.

[21] The Respondent says that it did advise APESMA that redundancies were to occur and the rationale behind the review of roles. This advice occurred on 12 April 2012 and included a list of roles to be made redundant. 3 The Respondent says that the only other consultation with APESMA was to provide APESMA with the opportunity to support employees at meetings where they were advised of their redundancies which were held on 17 April 2012, the same day as the meeting was held with the Applicant.4

[22] The Applicant says that he was not at any time consulted about the restructuring or the redundancy.

[23] The Applicant says that the list of 9 positions which the Applicant was told on 17 April 2012 had been considered by the Respondent in examining whether or not redeployment was possible was not a complete list of vacant positions and that an examination of the new Organisational Chart reveals many positions which the Applicant would have been suitable for. The Applicant says that he has engineering experience and is two subjects short of an Engineering Degree. Thus the Applicant says he can perform any engineering position except one that requires engineering qualifications and the signing off of engineering drawings or where calculations involving professional indemnity may be required.

[24] The Respondent accepts that there were other vacant positions however they say some of them were to be abolished or were still under review. The Respondent maintains that there were no positions for which the Applicant had the required qualifications or experience and were not at considerably lower levels of salary and status. The Respondent produced an analysis which it says is of all relevant positions which were shown as vacant on the organisation chart and explained why they were not suitable for redeployment. 5 In the main the Respondent says these positions were either made redundant, required an engineering qualification, required particular engineering or construction experience not held by the Applicant or had no budget allocation. The Respondent did not put forward a witness to explain how the judgments about these positions were made. The Applicant made general submissions about his suitability for a range of positions but did not provide evidence about his suitability for redeployment to particular listed positions.

[25] In cross examination the Applicant confirmed that a number of the functions which the Respondent says are performed by the new Transport Contract Manager and are in the position description for that job were not performed in his previous role. This included taxi hire, bus contract management, FBT legislation compliance, management of service level agreement with suppliers, management of private use of company vehicles and management of vehicles for Metro Trains as a whole, not just in infrastructure. The Respondent argues that the Applicant did not have the necessary experience and skills for this job. Mr Kelly gave evidence that he conducted an audit in 2011 and he concluded from the audit that the Applicant was not performing these roles, or adequately performing these roles, and that there was a need for these roles to be performed and that the Applicant had a narrow view of his responsibilities. Mr Kelly did not dispute that the Applicant’s view of his principal function was largely consistent with his position description. However, the position description for the role of Vehicle Transport Contract Manager includes functions which the Respondent says were part of the Applicant’s job requirements. They accept that the job has broader business management responsibilities than the Applicant’s job.

[26] The evidence about the requirements for the recently created position of Vehicle Plant Manager was not strong. The Respondent did not call any witness who was able to explain the nature of this job and its differences from the Applicant’s former role. Ms Hogan did agree that the role included the role the Applicant formerly had in respect to management of the 4 fitters and that it contained a number of other functions not previously performed by the Applicant. Mr Kelly also supported this evidence. However, Mr Hogan conceded that she was a relatively new employee and was not able to give detailed evidence about the work performed. The Respondent says that some aspects of road fleet and infrastructure plant aspect maintenance management and planning are now part of the Transport Contract Manager role.

[27] The Applicant gave evidence that 80% of his role was the management of Infrastructure Trucks and plant. 6 He says that he understands that this work is now performed by Mr Brownlee as Acting Vehicle Plant Manager. The Applicant accepts that a number of functions which he acquired in the later part of his time in his job were not now performed by the Acting Vehicle Plant Manager, for example dealing with accommodation, insurance claims, management of new vehicles delivery, signage and liaison with Orix, but that this constituted less than 20% of his role.

[28] The last performance review of the Applicant was in June 2011 and was very positive. 7

[29] Mr Dickinson, General Manager Human Resources, made the decision to terminate the Applicant. He conceded that the decision had been made on 11 April 2012 when he signed the letter. He also conceded that at that date Metro Trains had concluded that there were no suitable opportunities for redeployment and stated that in the letter. The Applicant had no input into the conclusion that there were no opportunities for redeployment prior to the decision being made. The decision was made on 11 April 2012 but the Applicant was not informed until 17 April 2012.

[30] Mr Dickinson conceded that consultation with affected employees prior to making them redundant was desirable and accepted that it had not occurred in this case. Mr Dickinson says that management decided that given that it was a major restructure involving many redundancies Metro Trains prepared all the paper work in advance and also analysed the available opportunities for redeployment in advance.

[31] Mr Dickinson says that Melissa Hogan and Mr McAteer, Infrastructure Manager, had the responsibility for looking for and assessing suitable alternative roles for redeployment for the Applicant. The Applicant says that at the 17 April 2012 meeting when he raised the issue of redeployment Mr Dickinson provided him with a list showing 9 vacant positions. This list was in an email from Ms Hogan to Robert Guest dated 5.39pm on 16 April 2012. 8 Ms Hogan gave evidence that she produced this list in response to a request and that the production of the list was the only work she had done to assess redeployment opportunities and she had done no analysis about what positions may or may not be suitable for the Applicant. It is clear that Ms Hogan produced the list after the decision had been made to make the Applicant redundant and after Mr Dickinson had signed a later stating that there were no suitable opportunities for redeployment.

[32] Ms Hogan said that the list included positions from across Metro Trains, although at first she said that it only included positions from infrastructure. She later recalled getting some assistance in identifying positions outside of infrastructure.

Consideration in respect to genuine redundancy.

Does the restructure mean that the job previously performed by the Applicant is no longer required to be performed by anyone? (Section 389(1)(a))

[33] I am satisfied from the evidence that significant restructure has occurred. I am also satisfied from the evidence that the new structure has been introduced for operational reasons related to cost reduction, reduction of risk, greater accountability and more effective delivery of outcomes. The restructure followed from an audit or review. The change to the position occupied by the Applicant resulted from that restructure for operational reasons. The evidence of Mr Kelly about how his audit at the end of 2011 revealed the need for a broader role in management of vehicle and plant infrastructure is accepted. I am satisfied that this provided, at least in part, the rationale for the restructure which led to the abolition of the Applicant’s position.

[34] A Full Bench of Fair Work Australia has recently reaffirmed the principles to be followed in assessing if the employer “…no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.” 9 There are many decisions which establish that this test can be met when job functions are retained but are redistributed and restructured. The cases Jones v Department of Energy and Minerals10 and Dibb v Commissioner of Taxation11 set out the meaning of when the employer no longer requires the job to be performed by anyone else. An essential element in cases where duties of a job are distributed to other positions is that “there is no longer any function or duty to be performed by that person.” “What is critical for the purpose of identifying redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge.”12

[35] In the circumstances of this case the functions of the Applicant’s job have been largely redistributed. There are some functions which are no longer performed by the Respondent. However, if, as the Applicant contends, the principal functions of his job are essentially the requirements of the Transport Contract Manager or the Vehicle Plant Manager job then it could not be said that the Applicant had no duties left to discharge.

[36] Jobs do change and evolve. Functions can be added and removed. The focus can change over time to meet business requirements. Clause 12.1, Contract of Employment, of the Agreement provides that: “employees shall use technology and perform any duties which are within the employee's skills, competence, training and qualification” and “employees shall participate in developing and implementing work methods that are designed to improve performance of the business”. There are a number of other clauses concerning the commitment to adapt and change work practices, work methods and duties including Clause 8 Continuous Improvement, Clause 9 Best Practice, and Clause 10 Consultation and Communication. In this context if the Transport Contract Manager job or the Vehicle Plant Manager job is just a new title for the Applicant’s old job with some non-core modifications then it cannot be regarded as a redundancy.

[37] I am satisfied that the evidence establishes that the Transport Contract Manager job does encompass some of the work which was performed by the Applicant but it is a significantly different job to the job of the Applicant. The skill and qualification requirements are quite different. The range of duties is quite different. The evidence surrounding the nature of the duties of the Vehicle Plant Manager is not strong. It is clear that the job previously performed by the Applicant of managing the work of the 4 fitters is now carried out by the Vehicle Plant Manager. It is in the same infrastructure area as the Applicant’s job. The job of managing the work of the 4 fitters was an important part of the Applicant’s job. However, the job was not created until sometime after the redundancy took place and there is evidence that the job includes functions which were not previously performed by the Applicant. On balance I am satisfied that the Applicant’s job was made redundant. That is for operational reasons the job previously performed by the Applicant is no longer required to be performed by anyone.

Does Clause 27 impose a requirement to consult in respect to redundancy? If so did consultation occur consistent with the requirements of the Agreement Clause 27? (Section 389(1)(b))

[38] I do not accept the argument of the Respondent that it is necessary for the consultation about change clause in an agreement to specifically refer to redundancy for the clause to be characterised as imposing a requirement to consult about redundancy. The origins of clauses in Awards and Agreements concerning consultation about significant change are the Termination Change and Redundancy Test Case. The provisions in Awards and Agreements, including Clause 27 of this Agreement, link the requirements to consult about change to the objective of avoiding redundancies and their adverse effects. Of course the Award and Agreement clauses are not limited to such situations, but such situations are clearly a major part of the work they have to do. There is nothing in Clause 27 which distinguishes it in this respect from the usual provision found in Awards and many Agreements. In fact Clause 27 imposes considerably wider requirements than the standard Award provisions in that it imposes the obligation “prior to making a definite decision to implement major change” rather than immediately after a definite decision has been made and it provides an obligation to consult both “unions and employees.”

[39] I am satisfied that Clause 27 does impose a requirement to consult in respect of redundancy. The provisions of Section 389(1)(b) apply to this case. Further, a situation in which a number of positions including those of the Applicant are proposed to be made redundant, when functions are proposed to be outsourced and when departments are being abolished and reorganised is clearly a situation of major change and one where change is likely to have a significant effect on Employees. I am satisfied that there is a requirement under Clause 27 to consult with APESMA and with the Applicant about the proposed change prior to the making of a definite decision to implement that change. Furthermore there is a requirement to consult about the effects that changes are likely to have on the Applicant and to provide in writing to the Applicant, all relevant information about the changes including the nature of the changes proposed. The Respondent is then required to give prompt consideration to matters raised by the Employees in relation to the changes

[40] The standard provision in Clause 27 that the employer “shall not be required to disclose confidential information, the disclosure of which would be detrimental to the Company's interests” does not diminish the obligation but simply restricts the nature of the information to be provided. It is possible to provide advice about outsourcing without revealing the name of the company to which outsourcing may occur. It is possible to provide the rationale for change without offending defamation laws or damaging the commercial interests of the company.

[41] The meeting in December 2011 at which the Applicant was present as part of an audit process does not remotely satisfy the requirements under Clause 27. The Respondent points to no other process of consultation other than the advice provided to APESMA about the impending retrenchments. The advice to APESMA is more in the form of a notification of retrenchments just prior to their implementation. It is advice after the decision had been made to implement the major change and indeed it is advice after the decision to retrench has been made and hence it does not meet the requirements of Clause 27. Furthermore it is not advice to the employees affected and it is clear that Clause 27 requires consultation with both the union and the employees.

[42] I am satisfied from the evidence that the Applicant was advised on the 17 April 2012 that he was redundant and he was told to leave the premises. He was not told that his termination date was extended until he received a letter dated 26 April 2012 on the 30 April 2012. Mr Dickinson could not provide any evidence to the contrary other than that he thought that the Applicant may have been told by someone. The additional time cannot be characterised as time provided to the Applicant to find redeployment opportunities. There is no evidence that he was aware of the fact that there was such an opportunity and there is no evidence of new efforts by Metro Trains to find opportunities for redeployment during this period. Metro Trains provided the position description for one job from the list they said they had already considered and they subsequently advised the Applicant that the job had been filled by another person.

[43] I am satisfied that the requirements of Section 389(1)(b) have not been met in that the Respondent has not implemented its obligations under Clause 27 of the Agreement to consult about the redundancy. Consultation is about a genuine opportunity to influence the decision maker. It involves a genuine opportunity for consideration of changes to the employer’s proposal and or about modifications to the proposal which may reduce redundancies or mitigate their effect on employees. The Applicant was not afforded such opportunity consistent with Clause 27.

Would it have been reasonable in all the circumstances for the Applicant to be redeployed within the employer’s enterprise? (Section 389(2)).

[44] The Full Bench in Ulan Coal Mines Limited v Honeysett and others 13 set out how Section 389(2) should be approached.

“[26] First, s.389(2) must be seen in its full context. It only applies when there has been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer’s capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.

[27] Secondly, it is implicit in the terms of s.389(2)(b) that it might be reasonable for an employee dismissed by one employer to be redeployed within the establishment of another employer which is an entity associated with the first employer. It follows that an employer cannot succeed in a submission that redeployment would not have been reasonable merely because it would have involved redeployment to an associated entity. Whether such redeployment would have been reasonable will depend on the circumstances. The degree of managerial integration between the different entities is likely to be a relevant consideration.

[28] Thirdly, the question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. 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 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.”

[45] The Full Bench 14 considered what may be relevant in considering whether or not redeployment would be reasonable.

“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.”

[46] I accept that redeployment opportunities were limited. I accept that many of the positions which might appear as vacancies on an organisation chart may not, in the situation of a major restructure, be real vacancies. There is evidence before me that in addition to 50 redundancies there were 60 vacant or short term positions removed. I also accept that the Applicant is in a reasonably senior management position and there are likely to be many fewer opportunities for a person at that level in a restructure. Further I accept that the absence of engineering, finance and business management qualifications may be an impediment to the redeployment of the Applicant in a restructure in an engineering organisation like Metro Trains. I have no reason to doubt the assessment of Metro Trains that a significant number of the vacancies were either not real vacancies or were unsuitable for the Applicant to be redeployed to.

[47] I accept that the provision of the position description for one of the vacant positions on the day after the meeting and the extension of the termination date is an indication that the Respondent may have been giving further consideration to redeployment options and was unsuccessful. However, there was no evidence of the efforts made.

[48] I have strong reasons to doubt that the Respondent did a very thorough job of considering redeployment opportunities for the Applicant prior to 17 April 2012. The evidence of Mr Dickinson that Ms Hogan and Mr McAteer, Infrastructure Manager, had the responsibility for looking for and assessing suitable alternative roles for redeployment for the Applicant and the evidence of Ms Hogan that she did nothing but produce a list some five days after Mr Dickinson had signed a letter saying that there were no suitable opportunities for redeployment strongly suggests the absence of a thorough process. The lack of any consultation with the Applicant about options also strongly suggests the absence of a thorough consideration. Metro Trains is a large organisation and this increases the likelihood that there are options for redeployment.

[49] The evidence is insufficient for me to be able to determine if it would have been reasonable in all of the circumstances to redeploy the Applicant. This question would have been answered if the consultation required by the Agreement had occurred.

[50] If there had been no requirement under the Agreement to consult then I would have been required to determine the issue of whether or not there were reasonable opportunities for redeployment. This would have been a difficult task and I would have required more evidence from the parties prior to determining that matter. However, in the circumstances of this case it is not essential for me to decide the question.

[51] The Respondent refers to the matter of Bruce McAlister v Bradken Limited 15 where Senior Deputy President Richards issued a decision in support of the contention that there is no positive obligation on the employer to indentify the positions the applicant is capable of performing.16 I consider that the Full Bench decision in Ulan Coal Mines is now the relevant authority.

Was the termination unfair?

Was there a valid reason? (s.387(a))

[52] The termination was a redundancy but not a genuine redundancy.

[53] The Full Bench in UES (Int'l) Pty Ltd v Ball 17 recently looked at the issue of redundancy and valid dismissal.

“[42] As we have already indicated, in our view the reasons for the dismissal of Mr Ball by UES were not related to his capacity or conduct (including its effect on the safety and welfare of other employees). Accordingly, there cannot have been and was not a valid reason for his dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). In the circumstances of this case we regard it as a neutral matter with respect to our consideration as to whether Mr Ball’s dismissal was harsh, unjust or unreasonable.”

[54] In my view the Applicant in this case was not dismissed for reasons related to his capacity or conduct. In this case the Applicant’s position was redundant. However, it is not a genuine redundancy due to the failure to consult and related to this the failure to adequately consider options for redeployment. I have been unable to determine if it would have been reasonable to redeploy the Applicant.

[55] In this situation there was no valid reason for the termination related to capacity or conduct. In the circumstances of this case it is a neutral matter with respect to my consideration as to whether the Applicant’s dismissal was harsh, unjust or unreasonable.

Notification and opportunity to respond (ss.387(b) and (c))

[56] The matters in s.387(b) and (c) of the Act deal with whether there was procedural fairness in respect of a reason for dismissal related to the Applicant’s capacity or conduct. As a matter of fact the Applicant was not notified of or given an opportunity to respond to a reason for his dismissal related to his capacity or conduct. However given the reasons for his dismissal, I regard them as neutral matters with respect to my consideration as to whether the dismissal was harsh, unjust or unreasonable.

Support person (s.387(d))

[57] Metro Trains did not unreasonably refuse to allow Mr Ball to have a support person present to assist at any discussions relating to his dismissal. The Applicant says that he did not have proper time or opportunity to obtain a support person. The Applicant did not challenge the evidence of Mr Dickinson that he was asked if he wanted a support person. I regard this as a neutral matter with respect to my consideration as to whether Mr Ball’s dismissal was harsh, unjust or unreasonable.

Unsatisfactory performance (s.387(e))

[58] Mr Ball’s dismissal did not relate to his unsatisfactory performance, so this matter is not relevant to my consideration as to whether Mr Ball’s dismissal was harsh, unjust or unreasonable. I regard it as a neutral matter with respect to my consideration as to whether Mr Ball’s dismissal was harsh, unjust or unreasonable.

Size of the enterprise and human resource management (s.387(f) and (g))

[59] Metro Trains is a large organisation with significant human resource management expertise. I regard it as a neutral matter with respect to my consideration as to whether Mr Ball’s dismissal was harsh, unjust or unreasonable.

Other matters (s.387(h))

[60] There were sound, defensible and well-founded reasons for Mr Ball’s dismissal, being that Metro Trains no longer required his job to be performed by anyone because of changes in the operational requirements of its enterprise. This is a matter which tells against a finding that the termination was harsh, unjust or unreasonable.

[61] The evidence was not strong enough for me to determine whether or not it was not reasonable in all the circumstances to redeploy Mr Ball.

[62] Metro Trains failed to consult with Mr Ball as required by the consultation clause in the Agreement. In the circumstances I have no doubt that the failure to so consult was unreasonable. The failure to consult in the circumstances of this case was also an important reason why I have been unable to determine whether or not it would have been reasonable in all the circumstances to redeploy Mr Ball. If consultation had occurred as required it is quite possible that redeployment may have been found to be possible. The failure to consult in the circumstances of this case is much more than a technical breach. The failure to consult has meant that the opportunities for redeployment and other opportunities to avoid or mitigate the loss of employment have not been properly considered as required by the Agreement.

[63] The failure to consult is also a matter relevant to consideration as to whether Mr Ball’s dismissal was harsh, unjust or unreasonable. In the circumstances of this case it is a significant matter telling for a conclusion that Mr Ball’s dismissal was harsh, unjust or unreasonable. In this sense it is quite distinguishable from the cases cited by the Respondent.

Conclusion regarding harsh, unjust or unreasonable

[64] Taking into account the matters referred to above, I am satisfied that Mr Ball’s dismissal by Metro Trains was harsh, unjust or unreasonable. The failure to consult was unreasonable and is sufficient in the circumstances of this case to lead me to conclude Mr Ball’s dismissal was harsh, unjust or unreasonable, notwithstanding the valid reason for his dismissal, namely the fact that his job was no longer required to be performed for operational reasons, and the due weight I have given to that valid reason.

Remedy

[65] The Applicant seeks reinstatement and restoration of lost pay.

[66] The Respondent argues that there are limited opportunities for the ongoing employment of the Applicant. The Respondent has not suggested that there is any issue related to performance or loss of trust and confidence which would stand against reinstatement. The major reason against reinstatement is that the Applicant’s job no longer exists.

[67] In the event that I was to consider compensation I would conclude that:

• No order I might make would affect the viability of the enterprise



• The length of service with the employer is a neutral factor in this case



• The Applicant has made adequate efforts to mitigate his loss and find alternative employment and I would make no deduction on this account



• There is no misconduct so I would make no deduction on this account



• The Applicant has not earned income since the termination



• I would assess that had the Applicant not been dismissed but had instead been redeployed after consultation then he would have continued in employment with Metro for at least two years. It would not be possible to anticipate longer employment given the nature of the industry.

[68] The Applicant has received 4 weeks’ severance pay or pay in lieu of notice and 16 weeks redundancy pay.

[69] The legislation provides that I may only order compensation if I am satisfied that reinstatement is inappropriate and that an order for compensation is appropriate in all of the circumstances of the case.

[70] I cannot be satisfied that reinstatement is inappropriate without hearing further submission and if necessary evidence from the parties.

[71] The parties may provide further submission and evidence in respect to the issue of the appropriate remedy in the circumstances of this case by 21 September 2012. A hearing will be held at 2:15pm on 25 September 2012.

COMMISSIONER

Appearances:

M. Anthony for the Applicant.

C. Shaw for the Respondent.

Hearing details:

2012

Melbourne

September 6

 1   Witness Statement of Michael Ball, Attachment MJB 16.

 2   Exhibit Metro 1 Attachment MT 6 - meeting notes of 6 December 2011.

 3   Witness Statement of Nick Dickinson Exhibit Metro 2, paragraph 6.

 4   Witness Statement of Melissa Hogan Exhibit Metro 5, paragraphs 2 to 4; Witness Statement of Nick Dickinson Exhibit Metro 2, paragraph 6.

 5   Exhibit Metro 6.

 6   Witness Statement of Michael Ball, paragraph 12.

 7   Witness Statement of Michael Ball, attachment MJB7.

 8   Witness Statement of Michael Ball, attachment MFB9 and confirmed by Ms Melissa Hogan.

 9   Ulan Coal Mines Limited v Henry Jon Howarth and others (2010) FWAB 7578.

 10 (1995) 60 IR 304 at 308.

 11 (2004) 136 FCR 388.

 12 (1995) 60 IR 304 at 308.

 13   (2010) FWAB 7578 at paragraphs 26 to 28.

 14   (2010) FWAB 7578, paragraph 34.

 15   [2010] FWA 203.

 16   [2010] FWA 203, [38] - [39].

 17   [2012] FWAFB 5241 - 14 August 2012.

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