Mr Stephen Pallett v Federation University

[2017] FWC 2394

[2017] FWC 2394

FAIR WORK COMMISSION

DECISION

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

Mr Stephen Pallett
v
Federation University
(U2017/427)

DEPUTY PRESIDENT GOSTENCNIK SYDNEY, 31 MAY 2017

Application for an unfair dismissal remedy; whether a genuine redundancy; jurisdictional objection dismissed.

[1] Mr Stephen Pallett (Applicant) was, until the termination of his employment with effect on 23 December 2016, employed by the Federation University (Respondent) as a Learning and Teaching Support Advisor in the Centre for Learning, Innovation and Professional Practice (CLIPP). He had commenced employment with the Respondent on 10 September 2007.

[2] The Respondent’s reason for its decision to dismiss the Applicant from his employment was that of redundancy brought about by a business decision that the role was surplus to requirements. The Applicant applied to the Fair Work Commission (Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act) on 13 January 2017. On 23 January 2017 the Respondent gave notice that it objected to the application on the ground that the dismissal of the Applicant was a case of genuine redundancy and therefore the Applicant was not unfairly dismissed within the meaning of s.385 of the Act. Section 396 of the Act requires the Commission to decide certain matters relating to an unfair dismissal remedy application before considering the merits of the application including, relevantly, whether a dismissal was a case of genuine redundancy.

[3] I heard the Respondent’s jurisdictional objection on 28 April 2017 at Ballarat. At the conclusion of the hearing and with the agreement of both parties, I directed that both the Respondent and the Applicant file final written submissions by suggested dates and I reserved my decision pending receipt of those submissions. Having received those submissions, for the reasons that follow, I have decided that the dismissal of the Applicant from the employment by the Respondent was not a case of genuine redundancy within the meaning of s.389 of the Act. It follows that, the jurisdictional objection should be dismissed and the merits application will be heard at a time to be advised.

Factual context and background

[4] The Respondent is a higher education provider operating in a number of regional areas including the town of Ballarat. The Respondent offers access to higher education, TAFE, secondary schooling and research opportunities.

[5] On 26 September 2016 1 the Respondent invoked the consultation provisions of clause 69.4 of the Federation University Australia Union Collective Agreement 2015 – 2018 (Agreement) which applied to the Applicant in his employment with the Respondent by releasing a proposal to deem the Applicant’s position surplus to requirements.2 That proposal took the form of a consultation paper (initial consultation paper).

[6] The initial consultation paper contained, inter alia, information concerning the reasons for the proposed change, the benefits of the proposed change, the likely impacts of the proposed change and the timeframe within which the consultation period would take place. The consultation paper also sought the feedback of the Applicant and if he so chose, that of his representative. 3

[7] Prior to 10 October 2016, the Applicant provided the Respondent with some initial feedback regarding the proposed redundancy. In summary, that feedback stated that “the proposal to deem the position of Learning and Teaching Support Advisor excess to requirements could lead to a redundancy that is not genuine” and it also highlighted purported inconsistencies in the initial consultation paper. 4 On 10 October 2016, Ms Anna Gunn (Ms Gunn) of the National Tertiary Education Industry Union (NTEU) sent an email to the Respondent highlighting its concerns with the proposal arguing that “there are a number of points in the document which indicate that there is an issue with the management relationship with the incumbent, as opposed to a genuine need for the work to no longer be undertaken.”5

[8] On 12 October 2016, the Deputy Vice-Chancellor (Ms Devlin), Learning and Quality wrote to the Applicant and the NTEU providing a response to the initial feedback referred to above. After “careful consideration” of the responses received from the Applicant and the NTEU, the Respondent rejected “the assertion that the proposal was a result of a ‘failed management performance process’” and asserted that the decision to deem the Applicant’s position surplus to requirements was a result of advances in digital technology and an inevitability to move “swiftly” with such advances. 6 Having instigated an initial consultation process, the Respondent then sought to proceed to the stage of issuing a final consultation paper.7

[9] On 14 October 2016, the Respondent released the final consultation paper. In summary, the final consultation paper outlined, inter alia, that the initial consultation period had taken place and that after having received feedback from the Applicant in response to such, the Respondent was maintaining its position that the Applicant’s role was surplus to requirements and that it was proceeding to the implementation process. 8 The final consultation paper also invited the Applicant to provide further feedback on the decision.9

[10] On 27 October 2016, the NTEU wrote to the Respondent disputing the contents of the final consultation paper. The NTEU submitted that the Respondent had not provided adequate responses to the questions and concerns raised by the Applicant in his initial feedback and that they had not addressed the point raised by the Applicant that a number of the responsibilities that he was undertaking in his role were still required. 10 Ms Devlin responded to the NTEU’s feedback on 28 October 2016. In her response she noted that the Respondent had been consulting with the Applicant in accordance with the terms of the Agreement and that “as a result of the final decision, and the conclusion of the consultation process on implementation of the final decision, Federation University Australia (the University) will be seeking to redeploy the affected employee during the eight-week transition period.”11

[11] On 31 October 2016, the Respondent sent a letter to the Applicant notifying him that his position had become surplus to requirements. The letter also contained the following:

“Under the provisions of the Agreement in relation to redundancy you are entitled to an eight week transition period. The transition period will be particularly devoted to redeployment and the University shall endeavour to find a suitable vacant position preferably at the same classification level currently held. If no suitable positions are available at your current classification level, the University will seek to redeploy you into a position with a salary lower than your current salary and provide salary maintenance.

Should you accept redeployment into another position, you will not be regarded as redundant and all termination processes will cease.

…

The University will be in contact with you over the transition period to discuss redeployment opportunities. If the University is unable to identify any suitable redeployment opportunities, the transition period will end on 23 December 2016 and your employment will cease on this date.” 12

[12] On 4 November 2016, the Respondent’s HR Business Partner (Ms Jones) contacted the Applicant via email. The contents of that email were as follows:

“Hi Steve

Further to my phone message yesterday, could you please send me a copy of your updated resume so I can look for suitable redeployment options for you.

Please give me a call if you have queries on the redeployment process.

Kind regards
Kelley

Kelley Jones
HR Business Partner” 13

[13] The Applicant responded to Ms Jones’ email on 8 November 2016 and attached his resume`. Ms Jones responded to the Applicant advising that she would “have a look at what positions are available” and then get in touch with the Applicant about them. 14 On 21 November 2016, the Respondent’s Manager for Workplace Relations (Mr Morris) sent an email to the NTEU advising that it would consider the Applicant for redeployment into the HEW 5 student adviser role.15 On 28 November 2016, Mr Morris sent an email to the Applicant confirming that the interview for the role would take place before three panel members, including Mr Jeremie van Delft (Mr van Delft) on 29 November 2016 at 1.00pm.16 At 11.49am on 29 November 2016, the Applicant emailed Mr Morris indicating that he would not be able to attend the interview as a result of a need to care for his children.17 Mr van Delft was contacted 5 minutes prior to the commencement time of the interview by Ms Jones who informed him that the Applicant would not be attending; however, a reason for the non-attendance was not provided.18 Mr Van Delft conceded in evidence that he did not make any attempts to contact the Applicant regarding the non-attendance19 nor did Ms Jones approach him about the possibility of rescheduling the meeting, despite the fact that he may not have been able to accommodate a second meeting.20 The position was ultimately filled.21

[14] On Friday, 16 December 2016, the Applicant sent correspondence to Ms Jones indicating that he would like to be considered for a role which appeared to be advertised on the Respondent’s careers page known as an ATOM Administrative Officer, HEW 4 (ATOM position). 22 The Respondent’s evidence was that on or around 13 December 2016, Ms Jones contacted Ms Claire Rasmussen, Director, VET Practice (Ms Rasmussen) regarding convening a redeployment meeting for the Applicant for the position.23 The evidence of the Applicant appears to contradict that of the Respondent, however, the contradiction is not detrimental to either party’s case.

[15] Ms Rasmussen was provided with a copy of the Applicant’s resume` and said that after reviewing it, she had “reservations about his suitability for the role based on the specific nature of his skillset as outlined in his resume.” 24 On Tuesday, 20 December 2016 the Applicant attended an interview for the ATOM position.25 On Wednesday, 21 December 2016, Ms Jones informed the Applicant that he had been unsuccessful in obtaining the ATOM position and that if he required any further feedback on his interview that she would arrange for Ms Rasmussen to provide it to him.26 The Applicant requested such feedback and on Thursday, 22 December 2016, Ms Jones provided the Applicant with some comments about why he had been unsuccessful.27

[16] On 22 December 2016, the Applicant received the following email from the Director of Human Resources:

“…

Further to advice provided in the letter dated 31 October 2016, I regret to confirm that your full-time, continuing position of Learning and Teaching Support Advisor in the Centre for Learning Innovation and Professional Practice is surplus to requirements. Your employment with the University ceases on 23 December 2016.

…” 28

[17] The Applicant requested a review of the final decision to terminate his employment 29 and submissions were made to the Respondent by the NTEU on the Applicant’s behalf30 however, that review was unsuccessful.31

Consideration

Legislation

[18] Section 389(1) of the Act sets out the meaning of genuine redundancy and provides that a dismissal was a case of genuine redundancy if:

● 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 (s.389(1)(a)); and

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

[19] Section 389(2) of the Act contains an exclusion to that which would otherwise fall within the definition of genuine redundancy and provides a person's dismissal is not 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

● the enterprise of an associated entity of the employer.

"Associated entity" has the meaning given by section 50AAA of the Corporations Act 2001. 

Was the Applicant’s job no longer required to be performed?

[20] A job is a collection of functions, duties and responsibilities assigned, as part of the scheme of the employer’s organisation, to a particular employee. 32 Functions, duties and responsibilities may cease to be part of an employee’s job through a reorganisation or redistribution of duties, so the question then is whether the employee has any duties left to perform or discharge.33 When there is no longer any function or duty to be performed by an employee, his or her position or job becomes redundant34 or, put another way, the employer no longer requires that employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.

[21] An employee’s dismissal may be a case of genuine redundancy even though there are aspects of the employee’s duties still being performed by other employees. 35  In the case of an organisational restructure or downsizing, the question will be whether the previous job has survived the restructure or downsizing, not whether the duties have survived in some form.36 It is a question whether the employee’s ‘job’ is no longer required to be performed by anyone, rather than the employee’s ‘duties’.37

[22] It is not in dispute that the Respondent no longer required the Applicant’s job to be performed by anyone 38 and on the basis of the evidence earlier discussed I am satisfied that the Respondent undertook an organisational review out of which it decided the key responsibilities of the Learning and Teaching Support Adviser were no longer required. It also decided that as a consequence of the implementation of new software, other parts of the duties constituting the Applicant’s job did not need to be performed as part of that job. I am satisfied that the Respondent identified the Applicant’s job as no longer being required to be performed by anybody and that this was as a consequence of changes in the operational requirements of the employer’s enterprise, brought about by the organisational review undertaken by the Respondent.

Did the Respondent comply with any consultation obligations?

[23] Turning next to consider whether the Respondent was obliged by a modern award or enterprise agreement to consult with the Applicant about the redundancy prior to the dismissal, and if so whether the Respondent complied with such obligation.

[24] As was outlined in [5] above, theAgreement covered the Respondent and the Applicant, and applied to them at the relevant time. In summary, the consultation provision of the Agreement placed an obligation on the Respondent to:

● provide information to the Applicant regarding the proposed changes;
● discuss the introduction of the proposed change;
● discuss the likely effect the change will have on the Applicant; and
● measures that will be taken to avert or mitigate the consequences of such change. 39

[25] The Respondent contends that at all times and stages it consulted with the Applicant and the NTEU as required by the Agreement. 40 In summary, the Respondent contends that it fulfilled its obligations under the Agreement for the following reasons:

a. the Respondent issued an initial consultation paper to the Applicant and the NTEU as required by clause 69.4 of the Agreement which sought the views of the Applicant and the NTEU and outlined a timeframe to provide feedback; 41

b. the Applicant and the NTEU provided a response to that initial consultation paper and in reply, the Respondent provided feedback indicating that it had considered that response; 42

c. the Respondent issued a final decision and proposed implementation process paper and sought further feedback from the Applicant and the NTEU on the implementation process, and in accordance with clause 68.2.4 of the Agreement, the paper made specific reference to redeployment during the eight week transition period; 43

d. the Respondent complied with clause 69.5 of the Agreement and specifically, possible means to ameliorate any negative impact of the change, by suggesting the redeployment process be used as a means to negate the negative impact; 44

e. clause 69.5 of the Agreement does not require the Respondent to ameliorate any negative impact of the change, it simply requires it to consult and such outcomes of that consultation period may militate against the negative effects of the change; 45 and

f. the feedback provided by the NTEU did not meet the requirements of clause 69.5 of the Agreement because it was critical in nature. The NTEU failed to seize the opportunity to engage with the University about the proposed change and despite the lack of engagement, the Respondent replied to the NTEU’s feedback. 46

[26] The Applicant contended in its written submissions that there are a number of obligations within the Agreement which the Respondent failed to meet and that consequently, the Respondent did not comply with s.389(1)(b) of the Act. In summary, the Applicant contends that the Respondent failed to comply with its obligations in the Agreement concerning consultation and has been deficient in at least six areas of implementing the Agreement. 47 The following is a summary of its submissions:

a. The Respondent failed to comply with clause 68 of the Agreement because it did not ‘devote’ time and a ‘commitment to’ redeploying the Applicant; 48

b. The Respondent further failed to comply with clause 68 of the Agreement because it justified not redeploying the Applicant to lower classification levels based on a policy of ‘custom and practice’ not supported by the Agreement; 49

c. The Respondent further failed to comply with clause 68 of the Agreement because it did not make any inquiries with the Applicant as to his skill set and interaction with students; 50

d. The Respondent failed to comply with clause 69 of the Agreement because the Respondent failed to explore other avenues such as long service leave, conversion to part-time employment etc. to retrenchment; 51 and

e. The Respondent failed to comply with clause 71.1 of the Agreement because it made decisions that were not in accordance with the terms of the Agreement. 52

[27] During the proceeding the Applicant did not raise any substantial matters relating to consultation, as opposed to redeployment, however, in its closing submissions, the Applicant submits that there is a failure on the Respondent to adequately consult with the Applicant regarding redeployment. The Applicant’s contentions regarding consultation are misconceived. Section 389(1)(b) of the Act is directed to an employer’s obligation to consult with an employee about a proposed redundancy in accordance with a modern award or enterprise agreement. The section is not concerned with redeployment obligations. The issue of redeployment is dealt with in s.389(2) of the Act. Consequently, I take the Applicant’s submissions to be directed to that subsection. Moreover, in the proceeding, the Respondent’s witnesses were not cross-examined about whether the Respondent had complied with the consultation (as opposed to the redeployment obligations) under the Agreement. Although I would be inclined on the material to conclude that the Respondent has complied with its consultation obligations under the Agreement, I have found it unnecessary to determine the issue as it will be apparent for the reasons which follow that, I am persuaded it would have been reasonable in all the circumstances to have redeployed the Applicant within the Respondent’s enterprise.

Was it reasonable in all the circumstances for the person to be redeployed?

[28] In Ulan Coal Mines Limited v Honeysett and others 53 (Ulan) a Full Bench of the Commission set out how s.389(2) of the Act 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.” 54

[29] The Full Bench considered that which may be relevant in considering whether redeployment would have been 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.” 55

[30] In relation to whether it was reasonable for the Respondent to redeploy the Applicant, the Respondent submits the following to support its jurisdictional objection:

a. Ulan is instructive in this case and consistent with that authority, the Respondent formed a view that it was not appropriate to redeploy the Applicant to the vacant positions that arose during the transition period. Ulan provides that redeployment should only occur when it is reasonable to do so, not that it must occur; 56

b. Ulan makes it clear that there are other criterion which need to be considered when determining whether an employee can and should be redeployed such as the ability to perform the role and the location and in this instance, the Respondent formed a view that the Applicant was not suitable for redeployment into the positions that arose at the HEW 5 and HEW 6 levels; 57

c. the Respondent put forward two roles which it considered suitable for redeployment; although consequently, the Applicant’s skills were not appropriate for the positions; 58

d. Ms Jones was qualified and had experience in making judgements about the Applicant’s suitability for roles based on his resume` and it is open to her to use her judgement in such a manner 59; and

e. it is imperative that an employer exercises due caution in redeploying employees so as to ensure that the employee is placed into a role that is suitable to their skills and abilities as not doing so may have detrimental effects on the employee. 60

[31] The views formed by the Respondent, as to the Applicant’s suitability for redeployment to particular positions, though relevant, in as much as those views form part of the “circumstances”, are not determinative of the issue. By its submissions, the Respondent clearly misunderstands the nature of the assessment in s.389(2). It requires a determination objectively ascertained. So much is clear from the word “reasonable”.

[32] The Applicant contends that the Respondent has not complied with its obligations under the Agreement in relation to redeployment and submits that there were ample positions that the Respondent did not take into consideration when considering redeployment. The Applicant makes good its arguments concerning redeployment as follows:

a. Ms Jones failed to comply with clause 68.2.3 of the Agreement in that she did not ‘devote’ the time in the eight week transition period to examine measures to avert or minimise the termination; 61

b. Ms Jones did not make any referrals or generate any discussions with the Applicant concerning redeployment and consequently, failed to commit to redeploying him in accordance with clause 68.2.4(i) of the Agreement; 62

c. Ms Jones did not consider positions of classifications below HEW 5 and although the Applicant was entitled to decline such offers, none were ever made to him resulting in a failure to comply with clause 68.2.4(ii) of the Agreement; 63

d. in not offering the Applicant opportunities to take up a position at a HEW 4 level or lower and by not allowing the Applicant to make a decision of his own accord about whether he would accept salary maintenance for a 12 month period, the Respondent did not comply with clause 68.2.4(iv) of the Agreement; 64

e. by not examining alternatives, such as long service leave, leave without pay, etc., to retrenchment with any conviction, the Respondent failed to comply with clause 69.1 of the Agreement; 65 and

f. by failing to comply with the provisions of the Agreement mentioned in [a] – [e] above, “all decisions to discipline or terminate the employment of an employee must be in accordance with this Agreement” 66 has not been adhered to.67

[33] The Respondent contends that it made multiple attempts to engage with and redeploy the Applicant and the failure of the Applicant to mitigate the retrenchment should not result in a finding that the Respondent did not consult in accordance with the Agreement. 68 During the transition period from October to December, Ms Jones said that on a weekly basis, she reviewed approved jobs on “PageUp” in an attempt to identify any suitable redeployment options for the Applicant.69 “PageUp” is a form of human resources software that the Respondent utilises to deposit jobs for approval and recruitment70 and can only be accessed by human resources personnel and certain managers who have access or limited access to their own positions within the system.71 It is not a publicly available forum.72 During the transition period, there were over 40 positions which were advertised on the system ranging from HEW 4 to HEW 6 classifications.73 Despite the number of vacancies, Ms Jones said that “at no stage during the 8 week transition period did I identify any redeployment options that I considered Mr Pallett would be suitable for redeployment based on the skill sets outlined in his CV.”74 During cross examination, it was put to Ms Jones that she only considered HEW 5 and HEW 6 positions and not HEW 4 or below, and when asked why she did not contemplate any HEW 4 roles, her response was that custom and practice in the University is to redeploy at the same level or one level lower.75

[34] The Respondent says that the Applicant’s resume` demonstrated a strong focus on learning technology, online support and information technology and that this focus had to have a bearing on, what Ms Jones considered to be the Applicant’s suitability for the vacant positions. 76 The Respondent says that the University does not have a prominent learning technology or information technology section and as such, the Respondent was not able to redeploy the Applicant into a suitable position.77 The Respondent ultimately argues that, absence any contact from the Applicant, Ms Jones was entitled to seek to redeploy the Applicant as per the Respondent’s “custom and practice”.78

[35] However, during the proceeding, the Respondent did not provide any reasonable explanation for its decision not to consider the Applicant for any of the 40 vacant positions, except that it is “custom and practice” for it not to do so. I do not accept this as a reasonable response. Moreover, it is not a position which finds support in the Agreement.

[36] The Agreement contains obligations on the Respondent to devote the time in the transition period to examining measures to avert or minimise the termination. 79 Simply because Ms Jones did not consider those positions to be appropriate with any adequate explanation, is not a basis for not putting those positions to the Applicant to consider. It is not the Applicant’s responsibility to highlight that he is prepared to consider redeployment into lower classifications. That is the responsibility of the Respondent as is necessitated by the Agreement. I do not consider that it was sufficient to simply seek the Applicant’s resume` and then have no further discussions with him about it or about the kinds of positions in which he might be interested.80 In addition, clause 68 of the Agreement provides that where an employee is redeployed to a lower classification than the position the employee held, the employee is entitled to receive salary maintenance. The Agreement thus contemplates lower level redeployment, without the artificial and unjustified barrier the Respondent says by its “custom and practice” it has established. In my view, that practice is inconsistent with the Agreement. The Applicant was not afforded an opportunity to even consider a salary maintenance option because the vacant positions were never put to him to allow him to make an application to be considered for the roles.

[37] In addition to reviewing vacant positions, the Respondent relies on the fact that it made two attempts to redeploy the Applicant despite the unsuccessful outcomes of those attempts. It also relies on the fact that the Applicant was aware that he could request to be redeployed to a lower classification and did not make any such request, nor did he feel a “need” to engage with Ms Jones regarding his skills and capabilities. 81 The Respondent’s evidence was that the decision that the vacant positions were not suitable for the Applicant was, at the time they were made, reasonably based and on good grounds, having regard to the Applicant’s skills and experience.82 The Respondent argues that the Applicant did not adduce any evidence that notified the Respondent of flexibility in relation to positions that he could have been redeployed into, nor did he adduce any evidence of positions that he would have taken if any were offered.83

[38] Additionally, the Respondent argues that the failure of the Applicant to highlight a reasonable suitable vacancy and the failure to request position descriptions militates against the Applicant’s argument. 84 The Respondent says that it is not incumbent on the University to definitively establish why the Applicant was not considered for all vacant positions.85 The only responsibility of the University is that it needs to consider the Applicant’s suitability for redeployment and the determination that was made by the Respondent in discharging that responsibility was done in a reasonable manner.86

[39] I accept that there is some responsibility on an individual, the subject of a retrenchment process, to mitigate the termination of their employment by actively seeking alternative positions within the business. However, if vacant positions are not publicly advertised or accessible to those who are in the midst of a transition period, as was the case here, it cannot be said that the Applicant had the opportunity to ask for redeployment to alternative positions if he did not know they existed. 87 More to the point, the redeployment obligations under the Agreement rest on the Respondent and if, as is the case here, the Respondent seeks to rely on the genuine redundancy exclusion of Act, then it needs to have taken such steps as are reasonable in the circumstance to attempt to redeploy. On this point, I accept the submissions of the Applicant that there was a lack of discussion by the Respondent in seeking redeployment for the Applicant. The Respondent narrowly interpreted the Applicant’s resume` and failed to consider positions at lower classification levels.88

[40] During the proceeding, Mr van Delft was cross-examined about the HEW 5 position the Respondent considered as an appropriate redeployment option for the Applicant. As earlier discussed, the interview for this position did not take place as the Applicant cancelled due to a need to care for his children. It was Mr van Delft’s evidence, that he had been waiting approximately six months to fill the position and when asked whether he made an enquiry as to why the Applicant had not attended the interview, his answer was simply no. 89 Mr van Delft made no further attempt to reschedule the interview for this position with the Applicant, despite the fact that he was aware that it was a potential redeployment option for the Applicant.90 Although there was a strong desire to fill the position, there was no satisfactory reason advanced by the Respondent in the proceeding explaining why an attempt was not made to reschedule an interview for the Applicant.

[41] As discussed earlier, there were a number of positions, many at a lower classification, into which the Applicant could have been redeployed. Although it is evident that the Respondent made some attempts to redeploy, those attempts were not sufficient when taking into account the requirements that the Agreement imposes on the Respondent. The self-imposed restriction of not considering the Applicant for positions at HEW 4, is inconsistent with the Agreement, which contains no such restriction and moreover, appears to encourage such redeployment having regard to the salary maintenance provisions. Though the classification descriptions for the 40 vacant positions were not provided in evidence, nor can it be said with any certainty that the Applicant would be suited to any one of them, I am prepared to infer that the Applicant would likely have been suited for at least one of them. The Respondent could have, but did not, lead any evidence about these positions or as to the Applicant’s suitability to fill any of them. Moreover, it did not make any application to supplement its evidentiary case, when, as should have been clear to it during the hearing, the Applicant made clear he was asserting that redeployment into one of those positions would have been reasonable in all the circumstances.

[42] I consider that given the redeployment and salary maintenance obligations under the Agreement, the number of vacancies at the HEW 4 level, combined with the failure by the Respondent to reschedule an interview for the vacant HEW 5 position, that it would have been reasonable in all of the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise.

[43] For these reasons I conclude that that Applicant’s dismissal was not a case of genuine redundancy. It therefore follows that the Respondent’s jurisdictional objection be dismissed and the matter be set down to determine the merits of the application.

[44] An order dismissing the jurisdictional objection is separately issued in PR593400.

DEPUTY PRESIDENT

Appearances:

Mr S Rosenthal with Ms A Gunn of the NTEU for the Applicant.

Mr M Morris with Ms Trevaskis for Federation University.

Hearing details:

Ballarat.

2017.

28 April.

Final written submissions:

Applicant’s Final Submissions 18 May 2017.

Respondent’s Final Submissions submitted 11 May 2017 and Respondent’s Final Submission in Reply submitted 24 May 2017.

 1   Respondent’s outline of argument: objections, undated at question 4f.

 2   Exhibit 4, Respondent’s Document List, Document 1 – Consultation Paper.

 3   Ibid.

 4   Exhibit 4, Respondent’s Document List, Document 2 – Initial feedback from applicant.

 5   Exhibit 4, Respondent’s Document List, Document 3 – Initial feedback from the NTEU.

 6   Exhibit 4, Respondent’s Document List, Document 4 – Response to initial applicant feedback.

 7   Ibid.

 8   Exhibit 4, Respondent’s Document List, Document 5 – Final Decisions and Implementation Consultation Paper.

 9   Ibid.

 10   Exhibit 4, Respondent’s Document List, Document 6 – Feedback from the NTEU on the implementation paper.

 11   Exhibit 4, Respondent’s Document List, Document 7 – Response to applicant on the implementation paper.

 12   Exhibit 4, Respondent’s Document List, Document 8 – Letter to applicant advising of their status.

 13   Exhibit 4, Respondent’s Document List, Document 10 – Email to applicant on redeployment process.

 14   Exhibit 4, Respondent’s Document List, Document 11 – Email from applicant in response to email on redeployment process.

 15   Exhibit 5, Witness Statement of Mr Stephen Pallet dated 20 March 2017 at Attachment 4, emailed dated 21 November 2016 at 4.25pm.

 16   Exhibit 4, Respondent’s Document List, Document 12 – Email to applicant advising of time for redeployment interview.

 17   Exhibit 4, Respondent’s Document List, Document 14 – Email from Applicant not attending interview.

 18   Transcript PN62 – PN68.

 19   Ibid.

 20   Exhibit 1, Witness Statement of Mr Jeremie van Delft, dated 6 March 2017.

 21   Ibid.

 22   Exhibit 5, Witness Statement of Mr Stephen Pallet dated 20 March 2017 at Attachment 6, emailed dated 15 December 2016 at 8.39am.

 23   Exhibit 2, Witness Statement of Ms Claire Rasmussen, dated 2 March 2017.

 24   Ibid.

 25   Exhibit 5, Witness Statement of Mr Stephen Pallet dated 20 March 2017.

 26   Exhibit 5, Witness Statement of Mr Stephen Pallet dated 20 March 2017 at Attachment 7, emailed dated 21 December 2016 at 4.15pm.

 27   Exhibit 5, Witness Statement of Mr Stephen Pallet dated 20 March 2017 at Attachment 7, emailed dated 22 December 2016 at 2.21pm.

 28   Exhibit 4, Respondent’s Document List, Document 18 – Letter to applicant terminating employment.

 29   Exhibit 4, Respondent’s Document List, Document 19 – Email from applicant requesting review of decision.

 30   Exhibit 4, Respondent’s Document List, Document 22 – NTEU Review Committee submission.

 31   Exhibit 4, Respondent’s Document List, Document 26 – Report from Review Committee.

 32   See Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308; cited in Ulan Coal Mines Ltd v Howarth and ors (2010) FWAFB 3488 at [17].

 33   Ibid.

 34   Ibid.

 35   See for example Dibb v Commissioner of Taxation (2004) 136 FCR 388 at 404‒405.

 36   See Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt [2010] FWA 674 at [27].

 37   Ulan Coal Mines Ltd v Howarth and ors (2010) FWAFB 3488 at [17].

 38 Transcript PN18 and Transcript PN352 – PN353; see also Applicant’s Outline of Submissions, undated at [14].

 39   Federation University Australia Union Collective Agreement 2015 – 2018, at clause 69.

 40 Respondent’s Outline of Submissions titled Attachment to Respondent’s Detailed Outline of Argument, undated at [20].

 41 Ibid at [23].

 42 Ibid at [25].

 43 Ibid at [27].

 44   Ibid at [28] – [32]; see also Transcript PN20.

 45   Ibid at [37]; see also Transcript PN21.

 46   Ibid at 38].

 47 Applicant’s Outline of Submissions, undated at [35].

 48   Ibid at [22] and [23].

 49 Ibid at [24]; see also Transcript PN362 and Applicant’s Final Submissions, undated at [27].

 50   Applicant’s Final Submissions, undated at [26]; see also Transcript PN283 – PN285.

 51 Applicant’s Final Submissions, undated at [29].

 52 Ibid at [30].

 53   [2010] FWAFB 7578.

 54   Ibid.

 55 Ibid at [34].

 56 Respondent’s Outline of Submissions titled Attachment to Respondent’s Detailed Outline of Argument, undated at [87].

 57   Ibid at [89] and [92].

 58 Ibid at [94].

 59 Ibid at [95].

 60 Ibid at [96].

 61 Applicant’s Outline of Submissions, undated at [22].

 62 Ibid at [23].

 63   Ibid at [24]; see also Transcript PN156 – PN158.

 64   Ibid [25] – [27].

 65 Ibid at [29].

 66   Federation University Australia Union Collective Agreement 2015 – 2018, at clause 79.1.

 67   Ibid at [30] – [35].

 68 Respondent’s Final Submissions, undated at [13].

 69  Witness Statement of Ms Kelly Jones, dated 6 March 2017.

 70   Transcript PN151.

 71   Transcript PN152.

 72   Ibid.

 73   Exhibit 4, Respondent’s Document List, Document 24 – Vacancies report.

 74   Witness Statement of Ms Kelly Jones, dated 6 March 2017.

 75   Transcript PN154 – PN157.

 76 Respondent’s Final Submissions, undated at [16].

 77   Ibid; see also Transcript PN130 and PN131.

 78 Respondent’s Final Submissions, undated at [19].

 79   Federation University Australia Union Collective Agreement 2015 – 2018, at clause 68.2.3.

 80   Transcript PN447.

 81   Transcript PN415 – PN419.

 82 Respondent’s Final Submissions, undated at [35].

 83 Ibid at [38].

 84 Respondent’s Final Submissions in Reply, undated at [24].

 85 Ibid at [28].

 86   Ibid.

 87   Transcript PN151 – PN153; PN296 – PN307 and PN317 – PN321.

 88 Applicant’s Final Submissions, undated at [71].

 89   Exhibit 1, Witness Statement of Mr Jeremie van Delft, dated 6 March 2017 and Transcript PN68.

 90   Exhibit 1, Witness Statement of Mr Jeremie van Delft, dated 6 March 2017.

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