Mrs Irene Webb v Sodexo Remote Sites Australia Pty Ltd
[2019] FWC 1585
•26 MARCH 2019
| [2019] FWC 1585 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Irene Webb
v
Sodexo Remote Sites Australia Pty Ltd
(U2017/3788)
COMMISSIONER HUNT | BRISBANE, 26 MARCH 2019 |
Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – position no longer required to be performed by anyone – no consultation obligation under modern award or enterprise agreement – not reasonable in the circumstances to redeploy – jurisdictional objection upheld – application dismissed.
[1] On 7 April 2017, Ms Irene Webb made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to her dismissal by Sodexo Remote Sites Australia Pty Ltd (Sodexo).
[2] Ms Webb commenced employment with Sodexo as a casual employee in May 2002, becoming a permanent employee in April 2005. She held numerous positions between 2005 and 2017, being promoted along the way. Ms Webb held the role of Project Manager in Sodexo’s Queensland relief pool from 27 December 2012 until her dismissal.
[3] The terms and conditions of Ms Webb’s various roles from 2012 are set out in a contract of employment signed by Ms Webb on 17 January 2012, as modified by a schedule each time she was assigned to a particular worksite or role. Effective 1 January 2012, Ms Webb’s position title was described as ‘Relief Project Manager’ at ‘Dalby’ with a salary of $82,000 per annum.
[4] On 1 March 2012 a new schedule was issued describing the position as Project Manager at Dalby with a salary of $84,000 per annum. In September, October and November 2012 Ms Webb was assigned for a month-at-a-time to the role of Senior Project Manager at Hall Creek with a salary of $105,000 per annum.
[5] By 1 December 2012 the role was the base role, Project Manager at a salary of $90,000 per annum. Ms Webb was regularly required to perform work at various sites where Sodexo operated, and her base salary was $90,000 throughout the period of December 2012 through until the dismissal. If a higher salary was paid at times, it was paid only for the period in which she was performing that particular role at a particular site.
[6] Ms Webb’s evidence is that she worked across the various sites to support, manage, identify and solve issues. She described most of her work in 2016 requiring her to focus on implementing Sodexo’s “On Job” training program across all sites. 1
[7] Sodexo contended that Ms Webb was, on appointment to Project Manager, an employee governed only by a common law contract, and not by any modern award or enterprise agreement. Ms Webb contended that she was covered by the Sodexo Remote Sites Onshore Enterprise Agreement 2013 (the Agreement).
Dismissal
[8] In January 2017, Ms Webb agreed to fulfil the role of ‘2IC’ at Sodexo’s operations in Dysart, Queensland connected with a mine operated by BHP Billiton Mitsubishi Alliance (BMA). That particular role was due to commence on 8 March 2017.
[9] In late February 2017, Ms Webb learned that Sodexo had made a decision to abolish the relief pool of employees, and instead use labour hire employees when it required. The termination letter dated 24 February 2017 stated that her position had been deemed redundant and Sodexo no longer required it to be performed. The letter stated that Sodexo would consider Ms Webb for other roles within the organisation, but if it was unable to redeploy her by 24 March 2017, her employment would end.
[10] In responding to the unfair dismissal application, Sodexo raised a jurisdictional objection to the application on the grounds that the termination of Ms Webb’s employment was a case of genuine redundancy pursuant to s.389 of the Act. Sodexo maintained the following:
(a) Ms Webb’s position of Project Manager was no longer required after the abolition of the relief manager pool;
(b) there was no obligation to consult with Ms Webb regarding the decision to make her role redundant as she was not employed pursuant to an award or agreement; and
(c) it had not been reasonable in the circumstances for Ms Webb to be redeployed within its enterprise or the enterprises of any of its associated entities.
Legislation
[11] Section 385 of the Act sets out when a person will have been unfairly dismissed, and states:
“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.”
[12] Section 396 of the Act sets out several initial matters that must be considered before the merits of an application for an unfair dismissal remedy, and states:
“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.”
[13] Ms Webb cannot have been unfairly dismissed if her dismissal occurred as a result of a genuine redundancy. Whether Ms Webb’s dismissal was a case of genuine redundancy must be considered before the merits of her application. Section 389 of the Act sets out the meaning of ‘genuine redundancy’ within s.385(d), and states:
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
[14] Section 53 of the Act sets out when a modern award or enterprise agreement covers to an employee and states:
“53 When an enterprise agreement covers an employer, employee or employee organisation
Employees and employers
(1) An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer.
Employee organisations
(2) An enterprise agreement covers an employee organisation:
(a) for an enterprise agreement that is not a greenfields agreement--if the FWC has noted in its decision to approve the agreement that the agreement covers the organisation (see subsection 201(2)); or
(b) for a greenfields agreement--if the agreement is made by the organisation.
Effect of provisions of this Act, FWC orders and court orders on coverage
(3) An enterprise agreement also covers an employee, employer or employee organisation if any of the following provides, or has the effect, that the agreement covers the employee, employer or organisation:
(a) a provision of this Act or of the Registered Organisations Act;
(b) an FWC order made under a provision of this Act;
(c) an order of a court.
(4) Despite subsections (1), (2) and (3), an enterprise agreement does not cover an employee, employer or employee organisation if any of the following provides, or has the effect, that the agreement does not cover the employee, employer or organisation:
(a) another provision of this Act;
(b) an FWC order made under another provision of this Act;
(c) an order of a court.
Enterprise agreements that have ceased to operate
(5) Despite subsections (1), (2) and (3), an enterprise agreement that has ceased to operate does not cover an employee, employer or employee organisation.
Enterprise agreements cover employees in relation to particular employment
(6) A reference in this Act to an enterprise agreement covering an employee is a reference to the agreement covering the employee in relation to particular employment.”
[15] In Ulan Coal Mines Limited v Honeysett (Ulan), 2 the Full Bench of Fair Work Australia, as the Commission then was, considered the operation of s.389 of the Act and described that s.389(1) has an inclusionary aspect which a dismissal must meet to be a case of genuine redundancy, and s.389(2) has an exclusionary aspect which a dismissal cannot meet to be a case of genuine redundancy.
Hallam Full Bench decisions
[16] A significant time passed between Sodexo making a jurisdictional objection and the hearing of its objection before me. This was so due to the parties consenting to await an appeal of a decision of Commissioner Spencer in Hallam v Sodexo Remote Sites Australia Pty Ltd[2017] FWC 4105 (Hallam).
[17] In Hallam, Ms Deborah Hallam was similarly employed as a Relief Project Manager with Sodexo, and she was made redundant at around the same time as Ms Webb due to Sodexo’s decision to abolish the relief pool of employees. At first instance, the Commissioner determined that Ms Hallam’s job was no longer required to be performed by anyone else, satisfying s.389(1)(a) of the Act.
[18] The Commissioner stated that the role of ‘Relief Project Manager’ is not named within the Agreement, but concluded that on the basis that Ms Hallam’s employment was covered by the Agreement, consideration has been given [by the Commission] as to the processes engaged in by Sodexo to consult with Ms Hallam.
[19] Further, the Commissioner determined that there was no identified position within Sodexo, or its associated entities where it would have been reasonable to redeploy Ms Hallam. The Commissioner was satisfied that the dismissal was a genuine redundancy.
[20] In deciding whether to grant permission to appeal, the Full Bench in a decision of 19 December 2017 3 determined that the Commissioner had not made a finding of fact as to whether Ms Hallam was covered by an award or agreement, and without such a finding, this arguably affected the decision. Permission to appeal was granted.
[21] In a second decision dated 15 March 2018, the Full Bench rejected Ms Hallam’s submission that fresh evidence relevant to when Sodexo made a decision to make her redundant should be permitted. The Full Bench determined that there was no explanation as to why the evidence in question could not have been identified earlier through the usual processes and put before the Commissioner at first instance.
[22] The Full Bench in the second appeal decision stated that it was satisfied that Ms Hallam’s job was no longer required to be performed, and relying on the first appeal decision, the Full Bench was satisfied that it would not have been reasonable in all the circumstances for Ms Hallam to be redeployed in either Sodexo’s enterprise or that of its associated entities.
[23] The Full Bench set out to determine if Ms Hallam was covered by an award or by the Agreement. The Full Bench stated that neither party contended that Ms Hallam was covered by the Hospitality Industry (General) Award 2010 (the Award).
[24] The Full Bench examined a job description for the role of Project Manager and had regard to how Ms Hallam described the role as: 4
“The daily running of the site in its entirety. The whole village. Kitchen, dining room, cleaning, administration, accommodation, payroll. Whether or not it had a cabin. Some do not. Maintenance, grounds, utilities. It can be buses. The whole shebang.”
[25] The Full Bench nominated the ‘principal purpose test’ as being relevant. It determined that Ms Hallam was not covered by the Award.
[26] Having ruled out various classifications within the Agreement, consideration was given to whether Ms Hallam could be covered by Level 2 in the Hospitality and Facility Management Stream of the Agreement. Indicative positions include Qualified Chef, Administration Manager, Accommodation Manager, Bar Manager/Tavern Manager, Security Supervisor, Parks and Gardens Manager, Airport Manager, Village Services Manager, Cleaning Manager, Reporting Officer, Warehouse Manager and Horticulturalist.
[27] Ms Hallam nominated the roles of Administration Manager, Accommodation Manager and Village Services Manager as roles that could be said to cover her under the Agreement. Both the Administration Manager and Site/Accommodation Manager report in to the Project Manager. The Full Bench determined: 5
“[43] Sodexo tendered a “Project Management Structure” which shows the role of Project Manager overseeing six discrete service areas (Accommodation Services, Catering Services, Cleaning and Janitorial Services, Maintenance Services, Retail and Recreation Services and Security Services). This is consistent with Ms Hallam’s own evidence that in her role, she was “to manage and have full accountability for managing the work site”.
[44] No relevant evidence was led as to the role of Village Services Manager and there is no suggestion that such evidence was not available or could not have been adduced at first instance.
[45] In the same way as the Award classification of Hotel Manager is confined to employees who manage discrete shifts or functions, the “managers” covered by the Agreement appear to us to be those with responsibility for particular functions within a site. Examples include responsibility for site administration, accommodation, the bar, site security or cleaning. It does not extend to employees with overall site or project management responsibility. That the Agreement applied to employees with a lower level of responsibility than Ms Hallam is supported by Ms Hallam’s own evidence that she managed employees who were covered by the Agreement. We also note her evidence that rates of pay for management were not included in the Schedule of Rates in the Agreement, and that while some managers were covered by the Agreement, others were not.
[46] We find that Ms Hallam’s role was not covered by the Agreement.
[47] It follows that there was no relevant obligation on Sodexo in a modern award or enterprise agreement that applied to Ms Hallam’s employment to consult with her about the redundancy.
[48] In the result, Ms Hallam’s dismissal was a case of genuine redundancy. Her application must be dismissed.”
Hearing
[28] Having the benefit of the Full Bench decision in Hallam, this matter was heard before me in Brisbane on 7 and 8 August 2018. Ms Webb was granted leave to be represented by Mr Ryan Haddrick of Counsel, instructed by Ms Nikki Town of Town Solutions Pty Ltd. Sodexo was granted leave to be represented by Mr Tim Lange, Partner, Piper Alderman Lawyers.
[29] The following persons gave evidence before the Commission:
• Ms Webb;
• Ms Nikki Town, Solicitor for Ms Webb.(not required for cross-examination);
• Mr Colin Purves, Human Resources Director – Energy and Resources of Sodexo;
• Ms Shalyn Jones, Human Resources Manager – Energy and Resources of Sodexo;
• Mr Ben Rynja, National Recruitment Manager of Sodexo (not required for cross-examination).
[30] A witness statement of Mr Martin Klavsen, Queensland Operations & HR Scheduler of Sodexo, was filed prior to the hearing of this matter. Although there was some discussion at hearing regarding whether Mr Klavsen ought to appear and give evidence, it was ultimately determined by Ms Webb that Mr Klavsen was not required for cross-examination. At the hearing the Respondent stated that it would not rely on Mr Klavsen’s statement. I informed the parties that I would have no regard to Mr Klavsen’s statement, and I have not considered Mr Klavsen’s statement in this decision. 6
[31] A statutory declaration of Ms Angela Lamb, Solicitor for Ms Webb dated 21 November 2017 was filed prior to the hearing of this matter. Annexed to Ms Lamb’s statutory declaration was a document showing vacant positions within Sodexo’s enterprise and the enterprises of Sodexo’s related entities existing at any time between 1 August 2016 and 7 April 2017, which had been produced to the Commission by Sodexo in accordance with Orders to produce issued by me on 28 September 2017. Ms Lamb was not required for cross-examination and Ms Lamb’s statutory declaration was not admitted into evidence at the hearing of this matter.
[32] Following the hearing, I enquired through my chambers whether the parties consented to Ms Lamb’s statutory declaration being admitted into evidence after the hearing. The parties consented to Ms Lamb’s statutory declaration being admitted into evidence. Sodexo did not indicate that it would require an opportunity to cross-examine Ms Lamb relevant to her statutory declaration. On 13 March 2019 my Associate emailed the parties stating that Ms Lamb’s statutory declaration was admitted as evidence in this matter.
Evidence of Ms Irene Webb
[33] Ms Webb’s permanent position at the time of her dismissal was a Project Manager within Sodexo’s Queensland relief pool. Ms Webb’s primary duties were to ‘backfill’ or relieve in Project Manager positions within Sodexo’s enterprise, as directed by Sodexo. As described above, her annual salary was $90,000, and she would work in locations as required by Sodexo.
[34] On 30 January 2017, Ms Webb received a phone call and a subsequent email from Mr Klavsen offering her an assignment relieving in the ‘2IC’ position at Sodexo’s operations in Dysart, Queensland. Mr Klavsen’s email indicated that Sodexo was not sure if the posting would last only a few ‘swings’ or rotations, or it could be for up to 6-12 months. Ms Webb confirmed that she would commence that assignment from 8 March 2017.
[35] At approximately 4:55pm on 28 February 2017, Ms Webb received a phone call from Mr Klavsen who informed her that her position was to be dissolved along with the relief pool. Ms Webb stated that her conversation with Mr Klavsen proceeded as follows: 7
Klavsen: As of 24 March 2017, your position would be dissolved along with the entire relief pool due to a business restructure. If we cannot find a role to redeploy you then you will be made redundant.
Webb: What does this mean for the role I am currently performing at Dysart? On 30 January 2017 you asked me to cover this role until the contract was decided. I am still a permanent full-time employee.
Klavsen: I cannot provide further information as I am unsure of the details. The instructions have come from Singapore to action the restructure immediately, and I was told to call all relief pool managers and full time relief employees to advise them of the terminations. I will contact you on Friday, 3 March 2017 as I will probably have more information by then. If I don’t call you it is because I am very busy.
Webb: Who can I call to get clarification on how this would affect me? Will I work at Dysart as agreed, or would I be redeployed to another role?
Klavsen: Don’t bother trying to contact Mr Langford or the other operations managers as they are not taking calls. I have no further information. This is just a courtesy call to you. A letter has been sent to your address on 24 February 2017, which was expected to be delivered on Wednesday, 1 of March 2017, and it will explain everything.
[36] Ms Webb stated that she was shocked and upset by Mr Klavsen’s call after being informed that her job was in jeopardy, without being given any explanation regarding the proposed changes to Sodexo’s enterprise or how it may affect her role.
[37] That evening she emailed Ms Jones and Mr Langford, Operations Director – Energy and Resources of Sodexo and notified them of her conversation with Mr Klavsen. Ms Webb requested to be contacted by a senior manager to clarify the advice given to her by Mr Klavsen.
[38] Shortly after sending the email, Ms Webb received a phone call from Ms Jones, who confirmed to her that Sodexo’s restructure was proceeding. Ms Webb’s account of the conversation with Ms Jones is as follows: 8
Jones: I don’t know why Martin rang you. He has jumped the gun.
Webb: Well I would have thought Martin would have been told to contact me, as I can see no other reason for him to do so.
[Ms Jones explained the restructure process]
Webb: I am concerned how this will affect me. What are my options? I agreed to come to Dysart until the contract was decided. I am only a few months away from completing 15 years of service, and only 3 years from retirement. I am part way through building a sustainable home in the country and this restructure could impact me badly.
Jones: We will make every effort to retain valued employees. The letter posted to you on 24 February 2017 will clarify everything, and will inform you of our extensive national job listing. I am excited about how many opportunities are available. You will also be able to apply with our preferred staff hire company, as they have expressed interest in hiring. I will work closely with you to look at redeployment opportunities within the business, and I will call you tomorrow to discuss them.
[39] Ms Jones sent to Ms Webb the following email: 9
“Hi Irene
Thank you for your time this evening. I know this news may have come as a surprise. As discussed we wish to minimise the adverse effects of changes and attempt to retain our valued staff and that’s why we will be working with you to look at redeployment opportunities within the business.
I will contact you again tomorrow to go through the vacancies in more detail.”
[40] Ms Webb stated that she did not receive a call from Ms Jones on 1 March 2017, and when she returned to her home on 2 March 2017, the letter was not in her mail box. On 2 March 2017, she emailed Ms Jones and noted that she had not received a call from Ms Jones or the letter regarding Sodexo’s restructure. Ms Webb requested to be provided with additional information regarding Sodexo’s restructure.
[41] Later on 2 March 2017, Ms Webb received an email from Ms Jones, apologising for failing to contact Ms Webb on 1 March 2017 and attaching a scanned copy of the letter regarding Sodexo’s restructure. The letter to Ms Webb dated 24 February 2017 stated: 10
“Dear Irene
Re: Termination of Employment
To operate our business in-line with our Client’s expectations and within the scope of our commercial contract we are required to continually review and adjust our operations at the workplace level. This allows us to remain competitive in the market and ensures that we deliver the Quality of Life services to our Clients and employees.
In line with our latest business review to optimise labour efficiencies the company has decided to change the construct and application of the relief pool across its broader operations. This means the intermittent and irregular workforce needed to cover its unpredictable operational requirements will now be sourced, if and when required, through a labour hire agency. As a result of this operational change, your position as a relief employee has been deemed redundant and will no longer be required to be performed.
Future opportunities of employment
It is good practice to minimise the adverse effects of change and attempt to retain our valued staff. For this reason we would like you to consider other suitable redeployment opportunities within the business.
We have provided to you a full list of current vacancies within our business nationally. If you are interested in any of the listed vacancies please notify us in writing and outline the position, the work location, your knowledge, skills, experience, and your qualifications / licences as required by the position.
It should be noted that if Sodexo is unable to reasonably redeploy you, your employment with Sodexo will be terminated in line with your industrial instrument with final day [sic] of employment being Friday 24th March 2017.
You will of course receive all due termination entitlements and Sodexo will also assist to provide career transition support. Sodexo’s Employee Assistance Program is also available as an anonymous support resource for you during this difficult time.
To avoid any uncertainty, the person of this letter is also to give you at least the required period of notice of termination.
Employment with Agencies
Sodexo Energy and Resources – Mining is currently working primarily with two global labour hire Agencies, namely Chandler Macleod and HAYS. Both of these companies have expressed interest in engaging Sodexo Employees from our relief pool to cover casual workforce requirements for their broad range of clients. Should you wish to explore these options further, please refer to the contact details included below.
Chandler Macleod | HAYS Group |
[contact details omitted] | [contact details omitted] |
If you have any questions or wish to discuss further about the termination of employment notified in this letter, your Scheduler will be able to assist by phone and email with some of your questions. If you prefer to meet with an HR representative, please let your scheduler know as they will be able to book a suitable time for this. The relevant contact details are included below:
Martin Klavsen, [contact details omitted]
Annette Crawford, [contact details omitted]
Yours sincerely,
Shalyn Jones
HR Operations Manager [emphasis retained]”
[42] Included with the letter was a ‘Sodexo Careers Listing’ document dated 15 February 2017, setting out all of the vacant positions available in Sodexo’s organisation Australia-wide as of 15 February 2017. Some 107 different positions were included in the careers listing document.
[43] Ms Webb stated that she reviewed the careers listing document on the night of 2 March 2017 and attempted to find more information about several of the vacant roles through Sodexo’s website. Ms Webb stated that there were insufficient details about the vacant positions for Ms Webb to form a view as to whether any of the positions interested her, including each position’s remuneration, ordinary hours and whether relocation assistance was offered.
[44] Ms Webb stated that on 3 March 2017 she emailed Ms Jones and requested provision of her personnel file and a copy of her employment contract. Ms Webb stated that she was stressed and afraid that Sodexo had no intention of redeploying her to a vacant role. 11
[45] At 3:45pm on 7 March 2017 Ms Webb received a phone call from Ms Jones. Ms Jones and Ms Webb discussed Ms Webb’s duties in Dysart and, while Ms Webb was upset about her present circumstances, she agreed that she would complete her duties in Dysart, as directed. After discussing Dysart, Ms Jones and Ms Webb discussed the careers listing document. Ms Webb stated that their conversation proceeded to the following effect: 12
Jones: Have you had an opportunity to view the job listings?
Webb: I have, but without any details of the remuneration and conditions such as hours and relocation assistance it was very difficult to know whether I would be interested in a position. Can you provide me with these details so I can make an informed decision? I would appreciate it if you can contact me with this information and then we can go through the list to identify what would be suitable.
Jones: Well, if there is a role that you are interested in on the list you should apply for it and then we can discuss.
Webb: Why would I need to apply? I have been working here for 15 years, Sodexo is fully aware of my skill set. I have an excellent working knowledge of all facets of the business, client requirements, and all the Sodexo systems, this surely counts for something. Although the FIFO roster has its challenges, it suits my current situation. I have geared myself up for retirement by purchasing a block of land in the country to build an off grid home. I get to spend five days of my non-roster period at the property overseeing the build. If I had to relocate it would be difficult, however any job is better than no job and you just need to give me the details of the positions so I can decide.
[46] In her statement of 12 November 2017 Ms Webb sets out what she says was her state of mind at the time of Ms Jones’ phone call: 13
“Had Ms Jones offered me a role that I could be directly redeployed to, while I would have been concerned about a drop in pay I would likely have accepted it due to my length of service and my desire to work for another three years until I retired, and my concern about looking for a new job at my age”.
[47] At 6:24pm on 7 March 2017, Ms Webb received a phone call from Ms Jones, who informed her that a decision had been made that Ms Webb would not go to Dysart for the 2IC position. Ms Webb stated that Ms Jones informed her that the decision not to send Ms Webb to Dysart would allow her and Ms Webb to consult about redeployment opportunities. 14
[48] At 5:00am on 8 March 2017, Ms Webb emailed Ms Jones, Mr Klavsen and Mr Langford summarising her conversations with Ms Jones the previous day and requesting that the decision not to send her to Dysart be confirmed via email. Further in her email, Ms Webb stated, “During your earlier phone you enquired whether I had an opportunity to view the positions vacant sent on the 3rd of March, which I responded informing you that there were no positions for my level of experience with the business…” 15
[49] Ms Webb stated that the next contact she received from Sodexo was an email from Ms Jones on 16 March 2017, attaching an updated version of the careers listing document showing the vacant positions within Sodexo’s organisation as of 8 March 2017. Ms Webb stated that she still had not been provided with details for any of Sodexo’s vacant positions by Ms Jones as of 16 March 2017. 16
[50] In re-examination, Ms Webb stated that on both occasions that she received careers listing documents from Ms Jones, she noted that the documents provided were already ‘out of date’ by the time that she received them, 17 and she instead referred to job listings advertised on Sodexo’s intranet websites to identify up-to-date lists of vacant positions.18
[51] On 23 March 2017, Ms Webb received a phone call from Ms Jones who informed her that because she had not applied for any of the vacant positions in the careers listing documents, Sodexo had determined to terminate her employment effective 24 March 2017. At the time of Ms Jones’ phone call, Ms Webb was aware that four of the other permanent Project Manager employees within the Queensland relief pool had been redeployed to managerial roles.
[52] Ms Webb enquired with Ms Jones about managerial positions at the recently developed Sodexo worksite at the ‘Amrun’ mining project operated by Rio Tinto, near Weipa, Queensland. Ms Webb also advised Ms Jones that she was aware that the 2IC position at Dysart was to be transferred to the Amrun site. Ms Jones informed her that all of those positions had been allocated prior to the restructure. Ms Webb also enquired about future projects, why other staff in the relief pool had been redeployed in positions that had not been included in the careers listings documents, and about the agreement that Ms Webb would cover the 2IC position at Dysart. Ms Jones did not reply to any of her enquiries and simply said that because Ms Webb had failed to apply for any of the vacant positions in the careers listings documents her employment would be terminated effective 24 March 2017.
[53] Later on 23 March 2017, Ms Webb sent an email to Ms Jones regarding the matters discussed in their phone call. Ms Webb’s email stated: 19
“Shalyn,
As discussed in your phone call today.
Considering my 15 yrs of service, and being utilized across all site to address problems, find solution and implement them, create written processes and provide training, and my full understanding of the business, Policies, procedures and systems. I put to you why the positions for the new sites where not on the careers listing, and why I was not given an opportunity to apply. [sic]
Again I request a copy of my current contract, not a bunch of RLOA’s and old contracts. I also requested previously all information pertaining to me from my personal file, to date this request has been ignored.
Reiterating my request for a step by step breakdown of hours pay rate etc., for my severance pay, including 15 yrs and 10 mths long service, annual leave, and for the redundancy amount, to show exactly how the end figure was achieve. (Hrs pay rate etc.)
I would like this by close of business tomorrow, with final payment expected 24/3/17 or no later than Monday 27th March 2017, which I am fully entitled to expect.
I would like all this information to be sent to me forthwith.
Please not [sic] I am more than happy to complete an exit interview, if you send me the template I will complete sign and return.”
[54] On 24 March 2017, Ms Webb received an email from Ms Jones enclosing a letter confirming that Ms Webb’s employment with Sodexo had been terminated. The letter stated:
“Dear Irene,
Re: Termination of Employment
Subsequent to the correspondence, dated 24 February 2017 and consultations conducted during your notice period, the possibility of redeployment within the business was explore [sic]. You have either accepted to not redeploy within the business or it has not been possible to identify a suitable alternate role. Therefore, your employment with Sodexo will cease today 24 March 2017.
All pay and entitlements owing to you will be placed into your nominated bank account on 28 March 2017. The Payroll department will send you a final pay slip following the final pay being processed. It is suggested that you should retain it for reference as it is likely you will need this when submitting your next tax return.
Finally, I would like to thank you for your contribution and service with Sodexo and wish you all the very best for the future.
If you have any further queries in connection with your employment with Sodexo please do not hesitate to contact me.
Yours sincerely
Shalyn Jones
HR Operations Manager [emphasis retained]”
[55] In her statement of 12 October 2017 and in regards to attempts to mitigate her loss, Ms Webb stated that since her termination: 20
“I have continued to view the Sodexo job listings, and have identified positions within the listed vacancies that I believe I am qualified and competent to undertake, all of which have been based on a FIFO arrangement. These positions included multi-site managers and village managers.
…
When I applied to Sodexo for these roles, I was advised that the roles had been internally filled or were for expressions of interest.”
[56] Ms Webb stated that in late May 2017 and as part of her attempts to mitigate her loss, she had discovered an advertisement on the ‘Seek’ online job listing website for ‘Village Manager’ positions with Sodexo on the Australian eastern coast. Ms Webb stated that the duties and responsibilities for the Village Manager positions outlined in the advertisement were the same as the relief Project Manager position that Ms Webb had previously held.
[57] Ms Webb stated that she was aware that her two peers that had held managerial positions within the defunct relief pool had been redeployed to managerial positions with Sodexo in Weipa. She did not understand why she had been excluded from discussions in relation to redeployment in those managerial roles, as Ms Webb’s opinion was that her experience and knowledge exceeded that of her colleagues. Ms Webb considered herself suitable for those managerial positions.
Cross-examination
[58] In cross-examination, Ms Webb agreed that she did not have any specific roles in mind to which she could be redeployed in, but considered that with up-coming sites, or the site at Weipa, there would be roles for Project Managers and Accommodation Managers. 21
[59] In cross-examination, Ms Webb was shown the Sodexo careers listing document of 8 March 2017 and asked her to clarify the nature of the further information she would have needed to determine whether she would be interested in any of the vacant positions. Ms Webb confirmed that there had been some vacant positions that she had been able to ‘rule out’ solely from the information in the careers listing documents. For example, Ms Webb is not a qualified chef, so she had been able to rule out vacant positions described as ‘Cook/Chef’. However, Ms Webb stated that there had been several positions within the careers listing documents that she would have had an interest in applying for, if the further information she requested had been provided to her. 22
[60] Mr Lange took Ms Webb to an email she had sent to Ms Jones on 3 March 2017, extracted below at [131], and put to her that Ms Webb had determined from reviewing the first careers listing document that there was no vacant position comparable to her position of Project Manager in the relief pool, and Ms Webb wanted to be redeployed to another position that was comparable to the Project Manager position. Ms Webb stated that there had been no comparable position by title alone, as she did not have sufficient other information to determine whether any of the vacant positions were comparable in other areas, such as remuneration. 23
[61] Ms Webb was shown her email to Ms Jones at 5:00am on 8 March 2017, and it was put to her that where she had said that there were no positions for her level of experience with the business within the first careers listing document, she had been informing Sodexo that she particularly wanted to pursue a comparable position to the relief Project Manager role. Ms Webb answered that that would have been her preference, but that she would ‘absolutely’ have taken another job with Sodexo instead of becoming unemployed.
[62] Specifically in reference to the first careers listing document, Ms Webb confirmed that she would have been interested in several vacant positions based in Western Australia, even though she did not consider those positions to be ‘comparable’ to her Project Manager position and depending on whether the full conditions of the position were agreeable to her.
[63] When asked by Mr Lange, Ms Webb agreed that she had not stated to Ms Jones or Sodexo generally which of the vacant positions within the careers listing documents she might be interested in, provided that the conditions of the position were agreeable to Ms Webb. Ms Webb stated that through her phone calls with Ms Jones, she had understood that she and Ms Jones were to meet by phone and go through Ms Webb’s opportunities for redeployment after she was advised that she would not be taking up the 2IC position at Dysart. 24
[64] Mr Lange put to Ms Webb that she had received a phone call from Ms Jones on 2 March 2017. Ms Webb denied receiving a phone call from Ms Jones on 2 March 2017. Ms Jones’ evidence regarding an alleged phone call she made to Ms Webb is set out in Ms Jones’ evidence below.
[65] Mr Lange referred Ms Webb to her statement that she had applied for positions with Sodexo since her dismissal. Ms Webb clarified that her applications for those roles had been made verbally to Mr Sean Edwards, an in-house solicitor of Sodexo, as part of discussions aimed at resolving Ms Webb’s substantive unfair dismissal application. Ms Webb stated that she had not applied for any of the identified positions in writing or through Sodexo’s ordinary channels for job applications. Ms Webb stated that as of the date of the hearing she considered that her relationship with Sodexo had broken down to an extent, but she maintained that she could conduct herself professionally if she were re-employed with Sodexo. 25
[66] In relation to Ms Webb’s statement that had Ms Jones offered her a role she could be directly redeployed to, she would have accepted such a role, although would have remained concerned about a drop in pay, Ms Webb clarified that she would still have been interested in the conditions of such a role, such as whether Ms Webb would be required to cover her own travel costs. When asked by Mr Lange, she agreed that she had not indicated to Sodexo her particular interest in any of the roles listed in the careers listing documents and considered that she would have needed additional information in respect of all of the roles listed in the careers listing documents to identify any roles that she was interested in. 26
Questions regarding application of the Agreement
[67] In answering questions from me, Ms Webb stated that she had been required to distribute information packs to employees in respect of upcoming votes for the approval of enterprise agreements proposed to cover a subset of Sodexo’s employees.
[68] Ms Webb stated that she voted in respect of an agreement in 2006 or 2007 when she was an Accommodation Manager. She helped facilitate a vote in around 2015 by providing a notice of employee representational rights to employees covered by the proposed agreement. She agreed that she did not vote in the ballot. I asked her if she considered that cooks or service attendants would vote, but managers do not get to vote, and she agreed with that proposition.
Evidence of Ms Nikki Town
[69] Ms Town’s evidence is to a number of documents ordered by the Commission to be produced in these proceedings. The documents relate to the deliberation by Sodexo to abolish the relief pool and a final decision to do so. The first document is dated 2 August 2016, including a table of Queensland managers in the relief pool.
Evidence of Ms Angela Lamb
[70] Ms Lamb swore a statutory declaration in respect of this matter attached to which was a document detailing Sodexo’s vacancies from late July 2016 to June 2017. That document was produced by Sodexo on 6 October 2017 after orders were made requiring the production of documents showing vacant positions within Sodexo over the relevant time period.
[71] One of the vacant positions within that document is a “Facility Strategy Manager” position, which is described as becoming ‘open’ on 12 February 2017. That position does not appear in either of the careers listing documents provided to Ms Webb.
Evidence of Mr Colin Purves
[72] Mr Colin Purves gave two statements in respect of these proceedings, dated 7 June 2017 and 13 December 2017. At the time of the events leading to Ms Webb’s dismissal and at the time of each of his statements, Mr Purves held the position of Human Resources Director – Energy and Resources for Sodexo. At the time of the hearing Mr Purves no longer worked for Sodexo, having been made redundant on 10 April 2018.
[73] Mr Purves gave evidence about the nature of Sodexo’s relief pool. Mr Purves stated that the purpose of the relief pool generally was to backfill labour for positions including service attendants, cleaners, tradespeople, chefs and ‘soft services’ support. It was not Sodexo’s intention to allow managers to be included in the relief pool, as it is his view that clients prefer a manager who is aligned and assigned to a particular client so that they can understand the intricate details of the client contract, the clients’ operational and cultural needs, and develop continuous and meaningful relationships with the onsite client representatives and senior managers.
[74] Over time, however, and perhaps due to Sodexo’s ‘general complacency’ in labour management practices, managers ended up in the relief pool.
[75] Sodexo operated four relief pools; one in South Australia, one in Queensland and two in Western Australia. The Queensland relief pool had 33 employees; 11 Chefs, one Cleaning Supervisor, one HSEQ Coordinator, six Relief Managers and 14 Service Attendants.
Plan to abolish relief pools
[76] Sometime in 2015 Sodexo identified that the relief pools were not the best way to efficiently manage labour and labour costs. In August 2016 the Human Resources team and the operational group commenced a project to ‘optimise the relief pool’. By late 2016, Sodexo proposed that it would restructure its organisation and the way that it addressed temporary staff vacancies, as follows:
• the four relief pools, being the Queensland, South Australian, and two Western Australian pools, would be abolished and relief employees would, where possible, be redeployed within Sodexo’s business or within one of Sodexo’s associated entities;
• human resources for unpredictable operational labour requirements would be filled through labour hire agencies;
• human resources for predictable operational labour requirements would be identified and filled by Sodexo’s employees.
[77] On Mr Purves’ calculations, the savings to be made were more than $2.4 million.
[78] Sodexo had originally intended to terminate all four of the relief pools during January 2017, however, due to competing business priorities and limited resources, a decision was made that the relief pools for each state would be phased out at different times. Mr Purves stated that the Western Australian relief pools were abolished in January 2017, the Queensland relief pool in March 2017, and the South Australian relief pool in April 2017.
[79] Mr Purves understood that the abolition of the relief pool meant that the relief pool managers had no duties or functions left to discharge and therefore their positions had become redundant.
Win of Rio Tinto contract
[80] Sodexo operates three business entities in Australia:
● Sodexo Remote Sites Australia Pty Ltd (Remote Sites);
● IFM Services Pty Ltd (IFMS); and
● Sodexo Australia Pty Ltd.
[81] In May 2016, Sodexo’s IFMS business won an extremely large contract to service Rio Tinto Iron Ore in the Pilbara, Western Australia. It was treated by Sodexo as a stand-alone project. Sodexo was required to engage, mobilise, onboard and deploy approximately 1200 people over a three month period commencing 19 June 2016.
[82] Decisions were made in 2016 to abolish relief pools in Sodexo’s IFMS business. It is Mr Purves’ evidence that the decision to abolish the IFMS project relief pool is strictly independent to and completely separate from any decision to terminate the Remote Sites Relief pools. 27 The IFMS relief pool was redeployed between November 2016 and January 2017, and any IFMS employees who could not be redeployed were made redundant in January 2017.
Decision to abolish Remote Sites relief pools
[83] Mr Purves’ evidence is that two senior managers held the authority to approve the decision to terminate the Remote Sites relief pools:
● Mr Nicolas Ouler, Global Vice President Finance & Business Performance Mining and Engineering and Constructions Projects; and
● Mr Paul Bean, CEO Mining, Energy & Resources Australia.
[84] The evidence given by Mr Purves is that the decision to abolish the relief pools was ‘signed-off’ by Mr Ouler and Mr Bean on or about 13 January 2017. Up until that point, Mr Purves and those working on the project had prepared presentations that included:
● Drafting and planning the concept of several labour optimisation projects;
● Measuring and reality testing the financial returns for each labour optimisation project;
● Conceptualising each labour optimisation project and proposed key milestones and deliverables;
● Obtaining the support of Ms Sue Black, Global HR Director, Energy and Resources, together with the financial support of Mr Mark Chalmers; and
● Nominating the timelines for obtaining the required authority from Mr Ouler and Mr Bean to execute each labour optimisation project.
[85] Given the staggering of the abolishment of relief pools across the three states, it is Mr Purves’ evidence that if a role had been ‘quarantined’ for Ms Webb from the time the decision was made, or if Ms Webb had been ‘prioritised’, it would have deprived relief pool employees who were made redundant in January 2017 of a genuine opportunity for redeployment.
[86] Mr Purves said the following: 28
“[29] Given the fact that Ms Webb was required to perform her duties until 24 March 2017, I hold the view that it would have been unreasonable in all the circumstances:
a. To quarantine one or more positions for Ms Webb at the expense of the relief pool employees made redundant in January 2017; or
b. Prioritise Ms Webb’s redeployment over the significant number of relief pool employees that were made redundant in January 2017.
[30] In all the circumstances, it was my view that it was fair, reasonable and practicable to give priority to the redeployment of the Remote Sites Western Australian Relief Pool employees before seeking to redeploy Ms Webb or other Queensland and South Australian relief pools employees.
[31] As a part of the Remote Sites Relief Pool, Ms Webb was required to be ready, willing and able to perform her duties right up to 24 March 2017. The very nature of the relief pool means that there may have been a need for Ms Webb’s services as a Project Manager at any point of time. If we were to redeploy Ms Webb to other employment prior to the 24 March 2017 and we had a operational need to deploy her as a Project Manager to a client’s worksite, and if she was not available to undertake that particular role, then we would be significantly hamstrung in finding a suitable and affordable person to perform those duties. Our ability to deliver to our contractual obligations in timely and cost effective manner would be adversely impacted.
[32] Ms Webb was in a specific role, and that particular role continued, and there was a need for that role to continue until 24 March 2017.
[33] In fact, at the time the Remote Sites business made the definite decision to terminate the Remote Sites Relief Pool and at the time Ms Webb was notified that decision, she had been performing her duties as a Relief Project Manager at our BMA Moranbah / Dysart contract until 28 February 2017. After a break of eight (8) days she was then scheduled to be deployed to back to the same worksite on 9 March 2017 to continue to provide backfill management services.
[34] Given the extensive period between the period the time the definite decision was made and the actual termination date of the Queensland Remote Sites relief pool, if we were to quarantine one or more positions for Ms Webb at the time the definite decision was made, then:
a. critical roles may be left vacant until 24 March 2017, adversely affecting our ability to provide our contracted services in a site environment where lean site structures operate; or
b. we would be required to source and engage costly agency labour to backfill one or more quarantined positions up until 24 March 2017. This is assuming that the agency has the available resources on hand with the required experience and skill sets and that those resources were readily available to work in remote locations. It must be noted, remote sites workplaces are significantly more difficult to source temporary labour than for metropolitan locations.
[35] Given the extended period between the decision date and the 24 March 2017, the requirement to backfill one or more quarantined positions would cause a substantial financial detriment.”
Consultation for Agreement-covered employees
[87] Mr Purves stated that Sodexo engaged in a significant exercise to identify redeployment opportunities for all employees affected by the abolition of the relief pools. Sodexo’s key focus in consulting with employees covered by the Agreement was to minimise redundancies wherever possible. Mr Purves stated that there was no requirement for affected employees to partake or compete in a recruitment campaign for any of Sodexo’s existing listed vacancies or newly created roles.
[88] Mr Purves confirmed his understanding that Sodexo employees in the Queensland relief pool had been provided the careers listing documents that Ms Webb had been provided with. While those positions had previously been advertised on the open market, affected employees that indicated an interest in vacant positions that they thought were suitable to them within those job lists would be redeployed into the position without having to apply for or compete for the position, provided that the position was suitable for them.
[89] Mr Purves stated that although Sodexo’s ‘onshore operations’ was covered by the Agreement, the Relief Project Manager employees did not fall under the Agreement. The terms and conditions of employment for relief Project Manager employees, including Ms Webb, were fixed by employment contracts for each separate employee.
Cross-examination
[90] Mr Purves stated that Relief Project Managers had some elasticity to their duties and could be required to complete managerial tasks in several different operational areas, including accommodation services, transport services or the management of village services. Mr Purves acknowledged that the position of ‘Village Services Manager’ appears as a position classification within clause 11 of the Agreement. 29 Mr Purves stated that a Project Manager would be the person on site that would be in charge of all the other functions, but if it was a small site, there would be a hands-on element to the role.30
[91] Mr Haddrick took Mr Purves through a significant amount of material regarding the actions taken by Sodexo throughout August 2016 – January 2017 to develop its business case for the abolition of the relief pools. Although Mr Purves agreed that a significant amount of work had been conducted in considering whether to abolish the relief pools during the latter half of 2016, he maintained that the decision to abolish the relief pools had not been made until 13 January 2017, and until that decision was made, Sodexo was continuing to consider whether the relief pools should be abolished. 31
[92] In answering questions from me, Mr Purves conceded that by 26 October 2016, IFMS had begun to engage in ‘recruitment activities’ to fill 1200 positions of employment in respect of the new contracts between IFMS and Rio Tinto. Mr Purves confirmed to Mr Haddrick that from 29 June 2016 to 18 September 2016, IFMS put on 896 employees in respect of the Rio Tinto projects, chiefly from labour hire agencies. 32 Mr Purves clarified that the recruitment activity at that time was directed solely to hiring in respect of the Rio Tinto projects, and no people were hired at that time which were intended to replace people within Sodexo’s relief pools.33
[93] It was put to Mr Purves that the decision to abolish the relief pool had been motivated by a desire to get rid of under-performing relief pool members. Mr Purves conceded that ‘a lot of problem cases’ ended up in the relief pool and that there had been a tendency for site managers to use the relief pool as a ‘dumping ground’. Mr Purves agreed that one of the ‘drivers’ to abolishing the relief pools had been to remove those underperforming employees that had exhibited behaviour Sodexo did not wish to reflect. 34
[94] Mr Haddrick referred Mr Purves to a document produced in respect of these proceedings dated 27 October 2016; a printout of a Sodexo presentation relating to hiring of employees for the Rio Tinto projects and the possible redeployment of relief pool employees to permanent roles with Sodexo Energy & Resources (Mining) Australia after the proposed abolishment of the relief pools. Mr Purves confirmed that as of 27 October 2016, Sodexo had begun to look at how relief employees could be redeployed, in the event that the business case to abolish the relief pools was approved. 35 By reference to a similar presentation document produced in respect of these proceedings, Mr Purves confirmed that Sodexo’s intention had been, by 14 November 2016, to have assessed the capability of various labour hire agencies to meet Sodexo’s unpredictable human resource needs.36
[95] Mr Haddrick referred Mr Purves to a further Sodexo presentation document dated 1 November 2016 which described potential initiatives to optimise Sodexo’s costs. Two of the identified potential initiatives were to ‘implement strong performance management for poor performers’ and to ‘promote good performers to more senior roles that are in the same structure – any supervisory, tavern manager, admin or similar roles are only filled internally and by 2013 EA people’. Mr Haddrick put to Mr Purves that as of 1 November 2016, Sodexo’s intention had been to identify good performers from within the relief pool employees and who were also covered by the Agreement and only those employees meeting both of those criteria would be offered permanent positions following the abolition of the relief pools. Mr Purves disagreed that Sodexo had made deliberate efforts to restrict the career development of its employees employed under common law contracts. 37
[96] Mr Haddrick referred Mr Purves to a further Sodexo presentation document dated 28 November 2016 which stated that a ‘key milestone within the coming week’ had been to ‘engage operations managers and support readiness for de-mobilisation of relief’. Mr Haddrick put to Mr Purves that Sodexo had decided as of 28 November 2016 to progress with the de-mobilisation of the relief pools, proved by the arrangements contemplated on 28 November 2016. Mr Purves again denied that the abolishment of the relief pools had been formally approved until after 13 January 2017, and that any actions taken to prepare for abolishment of the relief pools prior to that date had been to ensure that Sodexo was ready to implement the abolishment of the relief pools quickly once final authorisation was given. 38
[97] Mr Purves was shown an email from Ms Paz Avalos, Human Resources & Transformation Manager of IFMS, dated 6 December 2016 and in respect of the planned abolition of the relief pools, which stated:
“Team, just a quick note to inform we continue to progress with this initiative. We are now in the process of calculating redundancy payouts for all remaining employees in your relief pools. As previously informed, redundancy letters will be sent to people in the relief pool the 1st week of January, the effective date of termination will be 31 January. In line with this, schedulers will not be able to schedule any relief coverage from these relief pools beyond January 31st. Please make sure that you identify and transfer ASAP any solid performers from the relief pool to vacant full-time roles; alternatively, please inform if we need to recruit externally, except for IFMS where this is being managed already.”
[98] In responding to Mr Haddrick, Mr Purves denied that the effect of Ms Avalos’ email was that a decision had been made by 6 December 2016 to abolish the relief pools. 39 An email some 11 minutes later was sent by Mr Nigel Langford, informing Ms Avalos that in conjunction with Mr Purves, Mr Langford had decided that the ‘elimination’ of the South Australian and Queensland relief pools was to be delayed until the ‘new year’.
[99] Mr Purves was directed to a Sodexo presentation document dated 19 December 2016 which proposed that progress in respect of the Queensland relief pool would be ‘excluded until post RTA’. Mr Purves confirmed that ‘RTA’ referred to a contracts between Sodexo and Rio Tinto Aluminium (RTA) for services in Gove and Weipa that had been renewed, which were bundled together with Rio Tinto’s Amrun project. Mr Purves stated, “…it was said ‘Hey look, we’re very busy, these are all run by Nigel Langford’, that we spoke of earlier on. So at the time I think Nigel would be pushing to say ‘Look, I don’t want you to do anything with the relief pools in Queensland until I figure out how I’m going to staff all of these new contracts”. 40 Mr Purves understood that the delay in progress with the Queensland relief pool would have affected Ms Webb.
[100] In answering questions from Mr Haddrick, Mr Purves suggested that the delay in informing Ms Webb that her position had become redundant from the time the decision was made to abolish the relief pools on or about 13 January 2017 until 28 February 2017 was likely due to the operational requirements specific to Sodexo’s Queensland operations at that time and the management of the Rio Tinto contracts in Weipa and Gove. He also stated that the business was very busy in Queensland, and Mr Langford was nervous about disbanding the Queensland relief pool. 41
[101] I sought Mr Purves’ views on his evidence given at the hearing and the evidence in his statement that Sodexo had not wanted to ‘quarantine’ any positions for Ms Webb, considering there was a significant gap in the decision to make the role redundant from 13 January 2017, to when she was informed in late February 2017. The discussion was as follows: 42
Commissioner: Well, I have a question for you, Mr Purves. You've said at paragraph 28 of your second statement that if you had told Ms Webb when the definite decision was made then that might have jeopardised other people who had already been told and it might stop them from their redeployment opportunities. Why is that decision in play?
Purves: Yes, I think the statements at clause 28 are to address a point around about why didn't we quarantine positions for Ms Webb from the time the decision was made, and we felt that that would deprive others in the other relief pools that we had declared redundant prior to that of opportunity, and therefore that could present risk.
Commissioner: It's not a matter of quarantining anything, is it? I mean don't you - if other people are being told in January 2017 that their role has been identified as no longer needed, shouldn't Ms Webb be told when the decision is made about her role, and everybody gets to put their hand up and say if there's a redeployment opportunity. But why is it that you sit on the decision?
Purves: Well, again that's - it was likely - and I don't recall exactly but it's likely due to operational requirements in Queensland.
Commissioner: That's not what you've said here. You're giving preference. You're saying effectively that "We've told other relief pool employees in January of 2017 that they're made redundant and they should have first shot". Isn't that what you're saying?
Lange: Commissioner, can I draw your attention to the first statement, which is the one that I had in my mind a moment ago from 7 June at paragraph 20 and 21. Just as a matter of fairness to the witness to be able to answer.
Commissioner: This is tab 4 is it?
Lange: Yes, tab 4. Paragraph 20 and 21.
Commissioner: But it says it was completed:
‘The Queensland relief pool was terminated in March 2017’.
But wasn't there a business decision made on 13 January relevant to the Queensland relief pool?
Lange: I think that's the decision talked about in 20.
Commissioner: Yes?
Lange: And then it goes on in 20 to say that the implementation of that was - - -
Commissioner: Yes, I understand implementation and completion.
Lange: Sorry I - - -
Commissioner: But the definite decision was made on 13 January wasn't it?
Lange: Well, certainly in relation to that occurring but in relation to particular pools and those groups of positions, that decision was that it would occur at a particular time.
Commissioner: What evidence is there of that?
Lange: That's Mr Purves' evidence which is the - - -
Commissioner: What evidence, Mr Purves, is there that your people in charge said "You need to hold off on Queensland until this drop dead date"?
Purves: It wasn't the people in charge. It would be the operational - well, Nigel Langford the operations director in Queensland, due to operational requirements. What evidence is there? To be honest I'm not sure in the various packs where the evidence of that is.
Commissioner: So how do you know that at a certain time, "Queensland, we have a green light. We're good to go"?
Purves: It would have been through discussions with Mr Langford and with his boss I imagine.
Commissioner: So where is that evidence? We've got lots of other evidence but where do we have "We're holding off on Queensland until this, for these reasons"? Is it just oral conversation is it?
Purves: I believe so.
Commissioner: And South Australia was another time later?
Purves: Yes.
Commissioner: So you're working on WA and they were terminated in January?
Purves: Yes.
Commissioner: So what's stopping, once all those people have found a job or not, then early February informing Queensland?
Purves: Again I can only assume that it was competing business priorities, limited resources. I can't recall the exact circumstances at the time.
[102] Mr Purves did not accept that Sodexo should have told Ms Webb prior to 28 February 2017 that a decision had been made to make her position redundant. Mr Purves considered that depending on Sodexo’s operational requirements, Mr Langford could have asked that the redundancy arrangements for the Queensland relief employees be delayed even further. Mr Purves denied that Sodexo had deprived Ms Webb of the opportunity to consider her possible redeployment to vacant positions within Sodexo and its associated entities between 13 January 2017 and 28 February 2017. Mr Purves said the following: 43
“…when we contacted on whatever date it was the people in the relief pool about the redundancy, that was the time that the roles were declared redundant.”
[103] Mr Purves could not confirm whether certain relief employees had been ‘cherry picked’ for redeployment after the decision had been made to abolish the relief pools but before they had been notified that their position had been made redundant. 44
Evidence of Ms Shalyn Jones
[104] Ms Shalyn Jones gave two statements in respect of these proceedings, dated 8 May 2017 and 11 December 2017. At the time of the events leading to Ms Webb’s dismissal and at the time of each of her statements, Ms Jones held the position of Human Resources Manager – Energy and Resources for Sodexo.
[105] Ms Jones is responsible for implementing labour optimisation projects and all redundancy programs, including the abolition of the Queensland relief pool in 2017. Ms Jones was responsible for ensuring that Sodexo fulfilled its consultation obligations under the Agreement, which she accomplished by ‘partnering’ with affected employees to discuss redeployment opportunities.
[106] Ms Jones stated that on 27 February 2017 she held a teleconference with several of Sodexo’s senior managers and HR personnel, including Mr Klavsen, Mr Langford and Ms Kalee Cassidy, Senior Recruitment Advisor, to discuss the process for abolishing the Queensland and South Australian relief pools. Ms Jones stated that she included Ms Cassidy in the teleconference because Ms Cassidy had national oversight of vacancies with Sodexo and its associated entities, and it was Ms Cassidy’s role to provide updated lists of national vacancies to Ms Jones and Mr Klavsen.
[107] Ms Jones stated that in addition to the hardcopy careers listing documents, affected employees could refer to Sodexo’s ‘Careers’ webpage to identify open vacancies. The Sodexo ‘Careers’ webpage is updated by Sodexo at the time that vacancies become available.
[108] Sodexo’s practice is that an employee informed of their role being made redundant is given a list of all vacant positions within Sodexo and its associated entities. While the list provided to an employee shows vacant positions advertised publically, Sodexo’s practice was to redeploy redundant employees to vacant positions without having to apply or compete for a vacant position, as long as the redundant employee had the relevant knowledge, skills, licenses and qualifications for a vacant role.
[109] Ms Jones and Mr Klavsen agreed that she would communicate with all of the Queensland relief managers regarding their possible redeployment, and Mr Klavsen would manage the redeployment of all other affected employees in the Queensland relief pool.
Redeployment of some Relief Project Managers
[110] Immediately prior to the abolition of the Queensland relief pool, there were 33 relief employees engaged within the relief pool, seven of which were Relief Project Managers. Of those seven, two were redeployed as ‘Multi-site Managers’ within the Weipa, Gove and Amrun Rio Tinto sites, one was redeployed to South Australia as a Village Manager and one was redeployed to South Australia as a ‘Health, Safety, Environment and Quality’ (HSEQ) Manager. The remaining three Relief Project Managers, including Ms Webb, were not redeployed.
[111] Mr David Walker, Relief Project Manager within the Queensland relief pool, held HSEQ qualifications and had significant experience in performing HSEQ functions with Sodexo. In late February 2017, Mr Walker was offered a permanent HSEQ position at Sodexo’s Prominent Hill site in South Australia, which he had already been relieving in. 45 Mr Walker was offered the HSEQ position on the grounds that he was the only employee in any of Sodexo’s relief pools with the necessary HSEQ qualifications to fulfil the HSEQ position. Ms Jones stated that Ms Webb did not hold the necessary qualifications to fulfil the HSEQ position and could not have obtained those qualifications within a reasonable timeframe.
[112] Mr Craig Adams, Relief Project Manager within the Queensland relief pool, had been performing the role of Relief Project Manager at Sodexo’s ‘Challenger’ site in South Australia since 30 November 2016. Mr Adams was offered a permanent position as Project Manager at the Challenger site on 9 February 2017. Mr Adams had already relieved in the Project Manager role at the Challenger site and was knowledgeable of the commercial contract governing the Challenger site and the client’s requirements. 46
[113] Ms Jones stated that RTA, Sodexo’s client at the Weipa, Gove and Amrun sites, required two Multi-Site Managers for its projects with knowledge, skills and experience relevant to indigenous affairs, Sodexo’s ‘Reconciliation Action Plan’ (RAP) commitments and having previously fulfilled a Project Manager position. The RTA commercial contract had several commitments and performance indicators relevant to indigenous workforce and community requirements. The Weipa, Gove and Amrun workplaces were located in communities with large indigenous populations and it was critical for Sodexo to work closely with those indigenous communities.
[114] Ms Brigid Cook, Relief Project Manager within the Queensland relief pool, had significant project management experience in large operations and had obtained knowledge, skills and experience with indigenous affairs and Sodexo’s RAP commitments through project management of annual indigenous festivals in connection with the Yothu Yindi foundation. Ms Cook was offered the permanent position of Multi-Site Manager for the RTA contract on 23 March 2017 due to her experience in performing the Project Manager position for large commercial contracts and worksites similar to the RTA projects and her specialty knowledge of indigenous affairs and Sodexo’s RAP commitments. Ms Jones stated that Ms Webb’s project management experience primarily related to the management of small commercial contracts and workplaces, and Ms Webb did not have the requisite knowledge, skills and experience in indigenous affairs and Sodexo’s RAP commitments to perform the Multi-Site Manager position. 47
[115] Ms Alice Waihape, Relief Project Manager within the Queensland relief pool had significant project management experience in large operations and had obtained knowledge, skills and experience with indigenous affairs and Sodexo’s RAP commitments through assisting Ms Cook in delivering annual indigenous festivals in connection with the Yothu Yindi foundation. Ms Waihape was also offered the permanent position of Multi-Site Manager for the RTA contract on 23 March 2017. 48
View as to whether Agreement covered Ms Webb’s employment
[116] Ms Jones stated that Ms Webb’s employment as a Project Manager was governed under the terms and conditions set out in a common law contract of employment signed by Ms Webb on 17 January 2012, and she was not covered by the Agreement. Ms Webb’s primary duty was to perform the duties of a Project Manager in a relief capacity within Queensland. Ms Jones stated that Ms Webb had previously been required to relieve as a Project Manager at Sodexo’s Prominent Hill site, but had asked on a number of occasions not to be deployed to South Australian sites as the travel requirements from her home to the Brisbane airport and further within South Australia were too onerous.
[117] Ms Jones stated that at no time during Ms Webb’s employment was she directed to perform the duties of a Village Services Manager. Ms Jones stated that the Village Services Manager position is a subordinate position to the Project Manager, and is responsible for only managing accommodation services within a worksite, whereas the Project Manager is responsible for managing all ‘business units’ within a worksite and also responsible for the financial and operational performance of the site and meeting the objectives of the commercial contract. 49 Ms Jones states that only large workplaces required the Village Services Manager position and at the time of Ms Webb’s employment, no worksites in Queensland employed a Village Services Manager.50 Annexed to Ms Jones’ statement of 11 December 2017 are position descriptions for the Project Manager and Village Services Manager positions. Notably, these documents describe that the Project Manager reports to the Operations Manager, and the Village Services Manager reports to the Project Manager.51
[118] Ms Jones stated that she was aware of Ms Webb’s employment history with Sodexo and had a reasonable understanding of Ms Webb’s skills and transferable skills, qualifications, professional experience, performance appraisals and training record. Ms Jones obtained this knowledge from reviewing Webb’s employee records and from discussions with Mr Klavsen. Annexed to Ms Jones’ statement of 8 May 2017 are 10 ‘Schedules’ to contracts of employment signed by Ms Webb, setting out amongst other things the various positions held by Ms Webb from 29 April 2005 to 1 December 2012, and which positions Ms Webb reported to in each of those roles, as follows:
• From 29 April 2005 to 31 May 2006, Client Service Coordinator, reporting to a Senior Facilities Manager;
• From 1 June 2006 to 17 December 2007, Client Services Supervisor, reporting to a National Client Services Manager;
• From 18 December 2007 to 31 October 2008, Accommodation Manager, reporting to a Project Manager;
• From 1 November 2008 to 30 September 2009, Relief Project Manager, reporting to a Project Manager;
• From 1 October 2009 to 31 December 2011, Site Manager, reporting to a Project Manager;
• From 1 January 2012 to 29 February 2012, Relief Project Manager, reporting to a Project Manager/Operations Manager;
• From 1 March 2012 to 30 August 2012, Project Manager, reporting to an Operations Manager;
• From 1 September 2012 to 30 November 2012, Senior Project Manager. Ms Webb’s position as Senior Project Manager was determined under three separate fixed term engagements for a period of one month each;
• From 1 December 2012 until the date of her termination, Project Manager, specified to working from Sodexo’s Queensland relief pool. 52
[119] Ms Jones stated that before discussing with Ms Webb her redundancy, Ms Jones reviewed the vacant positions within Sodexo and its associated entities to determine whether there were any vacant positions or positions anticipated to be created that were the same or were substantially similar to a project (village/site) manager. After Ms Jones was unable to identify any presently vacant or anticipated positions of that nature, she instructed Sodexo’s HR Administration team to post to Ms Webb written notification that the Queensland relief pool would be abolished on 24 March 2017 and providing her with four weeks’ written notice of her termination in the event that Ms Webb could not be redeployed. The careers listing document dated 15 February 2017 was enclosed.
[120] On 27 February 2017 she informed Mr Klavsen, Mr Langford and Mr Alan Barnes, Queensland Operations Manager of Sodexo that written notification of forthcoming redundancies and termination had been sent to each of the Queensland relief pool Project Managers. Ms Jones planned to allow for two to three days for those letters to arrive, after which she would telephone each of the Queensland Relief Project Managers to discuss the letter and their possible redeployment. Ms Jones called each of the Queensland Relief Project Managers over 28 February 2017 and 1 March 2017.
[121] On 28 February 2017 she received an email from Ms Webb to the effect that Ms Webb had become aware in a phone call with Mr Klavsen that the Queensland relief pool was being abolished and that her employment would be terminated on 24 March 2017. Ms Jones discussed the matter with Mr Klavsen, who told her that he called Ms Webb to discuss her next work assignment and it was Ms Webb who had raised with Mr Klavsen rumours she had heard that the Queensland relief pool would be abolished. Mr Klavsen told Ms Jones that he had directed Ms Webb to contact Ms Jones.
[122] Ms Jones called Ms Webb late on the night of 28 February 2017 and explained to her that her position had not yet been terminated. Ms Jones confirmed to Ms Webb that the Queensland relief pool would be abolished on 24 March 2017 and that in the weeks before that date, she and Ms Webb would need to work together to identify possible opportunities for Ms Webb’s redeployment. Ms Jones confirmed to Ms Webb that the redundancy letter had been posted to her on 24 February 2017.
[123] Ms Jones informed Ms Webb that once Ms Webb had received the redundancy letter and the enclosed careers listing document, they could discuss any vacant positions that Ms Webb believed would be suitable for her redeployment. Ms Jones explained that they would not be able to meet face-to-face to discuss Ms Webb’s redeployment because Ms Jones resided in Perth and Ms Webb in remote Queensland. Ms Webb stated that she would like everything to be put in writing, and Ms Jones agreed that she would be in regular contact over the next four weeks. Ms Jones sent an email to Ms Webb on the night of 28 February 2017 following-up on their discussions of that night.
[124] On 2 March 2017 she received an email from Ms Webb advising that she had not received the redundancy letter, and sought a copy of the letter and careers listing document. Ms Jones sent both documents by email to Ms Webb.
[125] Ms Jones’ evidence is that she called Ms Webb on the afternoon of 2 March 2017 to discuss suitable vacant positions in the careers listing document. This conversation is disputed by Ms Webb.
[126] Ms Jones’s evidence is that Ms Webb announced that there were no open positions in the careers listing document that met Ms Webb’s expectations. Ms Jones identified to Ms Webb three vacant roles that she believed Ms Webb could be suitably redeployed to immediately, being:
• a ‘Site Administrator’ role in Boddington, Western Australia;
• an ‘Accounts’ role in Perth, Western Australia; and
• a ‘Contracts Administrator’ role in Perth, Western Australia
[127] Ms Jones considered all available roles in Queensland to be ‘service attendant’ roles, which Ms Webb had the skills to perform, however the roles were of a significantly lower status and remuneration compared to the relief Project Manager role. Ms Jones held a belief that Ms Webb viewed those ‘service attendant’ roles as beneath her because they are generally categorised as unskilled labour.
[128] Further, Ms Jones recalled that Ms Webb stated to her that she was not interested in any of the interstate roles raised to her by Ms Jones unless they were ‘fly-in fly-out’ roles, with flights covered at Sodexo’s expense. Ms Jones explained to Ms Webb that the three interstate roles would require Ms Webb to relocate to Perth. Ms Webb said that she could not be redeployed to a position that required her relocation outside of her local area because she was in the process of building a house.
[129] Ms Jones stated that as a result of her discussions with Ms Webb, she believed that Ms Webb had ‘closed her mind’ to redeployment to positions in other states that were not on a ‘fly-in fly-out’ arrangement, with preference to ‘fly-in fly-out’ roles on the eastern coast of Australia. Ms Jones continued to discuss with Ms Webb all suitable redeployment opportunities Australia-wide, as all reasonable redeployment opportunities needed to be exhausted.
[130] Ms Jones stated that on 3 March 2017 she received two emails from Ms Webb. At 7:55am on 3 March 2017 Ms Webb emailed Ms Jones and sought to be provided with a copy of her contract of employment and personnel file: 53
[238] Having determined that the Project Manager position was not covered by the Agreement, I find that Sodexo bore no obligation to consult with Ms Webb about her employment becoming redundant.
s.389(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.
[239] Having determined that Ms Webb was not covered by the Agreement, the final matter for me to determine is whether it would have been reasonable in all of the circumstances for Sodexo to have redeployed Ms Webb within its enterprise or the enterprise of one of Sodexo’s associated entities.
[240] There has been a factual contest as to when Sodexo made the decision to make Ms Webb’s role redundant. This factual information was not properly put by the parties before Commissioner Spencer in Hallam, and Mr Purves’ evidence that it was ‘sometime in December 2016’ was not properly challenged by Ms Hallam. Given the production of documents requested by Ms Webb in this matter, the Commission has more information before it than the Commission did in Hallam.
[241] Having regard to the work performed by Sodexo management between August 2016 and December 2016, and the various drafts, workings, calculations, proposals etc., I am satisfied that the authority to abolish the four relief pools was given on 13 January 2017 and not before. The evidence is that there was a significant amount of preparation to have the proposal approved, but it was not approved until signed off by Mr Ouler and Mr Bean. Whilst it is not necessary to find with regard to the words ‘definite decision’ as it is described in modern awards, I find that a definite decision to abolish the relief pools was made on 13 January 2017.
[242] It is apparent from the evidence of Mr Purves and the discussions extracted above at [101] that rather than a mere oversight, Sodexo made a positive decision not to immediately or shortly thereafter inform employees within the Queensland relief pool of their redundancy, or commence a redeployment process for them. Regardless of any operational decision about when Ms Webb’s role was to become redundant, a definite decision was made on or shortly after 13 January 2017 that Ms Webb’s role would be made redundant. Six weeks passed between the decision to abolish the relief pools on 13 January 2017 and the posting of the redundancy letter to Ms Webb on 24 February 2017. In the circumstances, Ms Webb did not learn of her redundancy until she received the phone call from Mr Klavsen on 28 February 2017.
[243] Despite Ms Webb’s remote residence, and Sodexo’s awareness that she was not at home, as she was working on assignment, it is concerning that Sodexo undertook to inform its employees of the abolishment of the relief pools by post. Mr Klavsen or Ms Jones could have called Ms Webb expressly to inform her of her redundancy, followed by the redundancy letter being sent by email. It appears to be that the decision to delay communicating the firm decision to make the Queensland relief pool redundant was on operational grounds; simply, Sodexo wanted those people to continue working and meeting Sodexo’s commitments without abandoning their post.
[244] It is clear from Mr Purves’ evidence that Sodexo considered it could be ‘hamstrung’ if people were told earlier than Sodexo wanted because it wanted them to complete assignments. It was recognised by Sodexo that a decision had been made to make the relief pool redundant, but for its own commercial and operational reasons it chose to delay the communication of the decision.
[245] This can be contrasted, for example, with Boeing’s decision in 2010 to make hundreds of employees redundant at its Milperra, NSW site, and relocate to Melbourne, Victoria. At the time of the announcement, it was anticipated the closure of the site might take 30 – 40 months. Responsible employers notify employees at the earliest instance that their role will be made redundant, and then make commercial and pragmatic arrangements with existing employees to encourage them to ‘stay the course’ so that operational obligations can be met.
[246] I do not consider the reason for the delay in communicating the decision, made on 13 January 2017 reasonable in all the circumstances.
[247] A number of different factors may be relevant in the consideration of whether redeployment would have been reasonable in the circumstances. Several of those factors were described by the Full Bench in Ulan Coal Mines Limited v Honeysett[2010] FWAFB 7578, and 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”. 80
[248] Whilst in Ulan, I note that the Full Bench considered the appropriate time of the test to be at the time of the dismissal, I consider it was a preferred position because at the time of the dismissal of the various employees in that case, opportunities had become available with an associated entity that had not been available before.
[249] In Ms Webb’s case, she first became aware of the proposed dismissal on 28 February 2017, but was not dismissed until 24 March 2017. I do not accept that the obligation at s.389(2) only has effect at the time of the dismissal, being the very date of the dismissal. It would simply not make any sense that an employer had no obligation between 28 February 2017 and 23 March 2017 to undertake the inquiry of redeployment, but then did have such an obligation on the final day of employment.
[250] In my view, determining if it would have been reasonable in all the circumstances for the person to be redeployed must include the period at least from when the employee was informed of the decision to make the position redundant. Further, I consider it appropriate to include a reasonably short period from the time that the decision was made by the employer to make the role redundant. In this case, given there was no consultation required or given, Ms Webb was informed of the decision to make her role redundant on 28 February 2017. Accordingly, the s.389(2) consideration includes at least the period 28 February 2017 to 24 March 2017. I also determine in these circumstances, because of the unreasonable delay by Sodexo, that it should include the period shortly after 13 January 2017 when the decision was made by Sodexo to make Ms Webb’s role redundant.
[251] In Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714 (Pykett), the Full Bench confirmed that there must be an evidentiary basis for the finding made, and said the following: 81
“[36] For the purposes of s 389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding. Such an interpretation is consistent with the ordinary and natural meaning of the words in the subsection; the Explanatory Memorandum and Full Bench authority. We acknowledge that the facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee. If an employer wishes to rely on the “genuine redundancy” exclusion then it would ordinarily be expected to adduce evidence as to the following matters:
…….
…….
(iii) whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employer.
The evidence in relation to (iii) would usually include canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee.”
[252] In Margolina v Jenny Craig Weight Loss Centres Pty. Ltd [2011] FWA 5215 (which was upheld on appeal 82) Commissioner Ryan considered that an employer should not presume that a redundant employee will reject redeployment to a position of lower responsibility or remuneration and it may be reasonable in the circumstances to redeploy an employee to such a position.83 It may also be relevant whether an employer offers to redeploy a redundant employee to a vacant position outright or whether an employer proposes to require a redundant employee to compete for a publically advertised vacant position.84
[253] In Aldred v J Hutchinson Pty Ltd [2012] FWA 8289(Aldred), Commissioner Lewin of Fair Work Australia, as the Commission then was, stated: 85
“[36] The clear implication I think is that whether or not redeployment will be possible is something primarily, but not exclusively, within the purview of the employer in respect of which it is expected to act if redeployment is possible and would be reasonable in all the relevant circumstances.
[37] To suppose a responsibility to identify any reasonable redeployment opportunities or to impose an onus upon an employee to initiate the identification and determination what the employee would accept as being a reasonable redeployment opportunity is not appropriate. Employees may put proposals for redeployment in the consultation process. They may not. They may not have the relevant information which would enable them to do so. It is straightforward, I think, to conclude that the immediately available information and knowledge of the employer in most cases will be more extensive and comprehensive. So too will the ability of the employer to enquire into and obtain information about redeployment within the enterprise of the employer or within an associated entity.
[38] Even if there are no consultation obligations the requirement for a redundancy case to fall within the jurisdictional exclusion of s.389, the requirement that it would not be reasonable in all the circumstances to redeploy an employee whose job is redundant, within the employer’s enterprise or an associated entity, remains as an independent and determinative condition of that exclusion. In that case, absent any consultation, in my view, the employer should satisfy itself that it would not be reasonable to redeploy a redundant employee before terminating the relevant employment.
[39] It seems to me that simply because an employee does not expressly raise the possibility of redeployment to another position at some different or distinct location does not mean that it will not be reasonable to redeploy such an employee to that location. Rather, in my view, the question of what will constitute a redeployment which would be reasonable in all the circumstances will be more complex and entirely dependent on the particular factual circumstances or each case.
[40] For example, if a position were identified for which an employee had suitable qualifications or experiences at a distant location it will not be reasonable to redeploy the employee if the employee does not wish to be so redeployed or insists upon some conditional terms of such redeployment which are inherently unreasonable.”
[254] While identified procedural deficiencies within a redeployment process are not, by themselves, sufficient to find that a dismissal was not a case of genuine redundancy; a finding must be made whether there was a job or position or other work to which Ms Webb could have been redeployed, including whether there was a position to which Ms Webb could have been redeployed but was prevented from expressing interest in due to Sodexo’s procedural deficiencies. 86
[255] Ms Webb submits that she should have been allowed an opportunity to express interest in the roles filled by four of her fellow Project Managers in the Queensland relief pool, described above at [110] – [115].
[256] It is important to understand how the statutory test in s.382(2) of the Act should be applied in considering whether Ms Webb could reasonably have been redeployed to one of those roles. In its decision to grant permission to appeal for Ms Hallam 87, the Full Bench considered whether a Camp/Village Manager position should have been quarantined for Ms Hallam, or whether Ms Hallam should have been invited to express interest in such a position during November 2016. The Full Bench stated:88
“[20] This argument misunderstands the statutory test. Subsection 389(2) states that 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. Subsection 389(2) places no obligation on an employer to redeploy, or to do everything possible to achieve a redeployment outcome. The exception is applied at the time of dismissal. It operates so that a dismissal that would otherwise be a case of genuine redundancy under subsection 389(1) will not be so if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or with an enterprise of an associated entity of the employer.
[21] In this case, the time of dismissal was 24 March 2017. At that time, it is not evident that there were any job vacancies for Camp or Village Managers either open or in contemplation. The evidence indicates that in some part of the business, some months earlier and again some months later, expressions of interest for people in those roles were sought. In any event, Ms Hallam already occupied a position of this kind and had not been usefully employed for some months. This speaks against the proposition that there was an available role of this kind for her to fill.”
[257] I accept that Ms Webb did not hold the necessary HSEQ qualifications to complete the HSEQ role filled by Mr Walker. I consider that Ms Webb could not reasonably have been redeployed to the HSEQ position.
[258] I accept that Sodexo’s client at its Challenger site in South Australia had specifically requested for Mr Adams to be appointed to a permanent Project Manager position at that site following his existence service at that site. I consider that it was reasonable in the circumstances for Sodexo to decide that Mr Adams was suitable for that position and redeploy him to that position on the specific request of Sodexo’s client. I consider that it would not have been reasonable for Sodexo to ignore the specific request of its client to allow Ms Webb to consider whether she may express an interest in that position.
[259] I accept Ms Jones’ evidence that the Multi-Site Manager positions at the Weipa, Gove and Amrun sites required persons that had previously fulfilled Project Manager positions and had knowledge, skills and experience relevant to indigenous affairs and Sodexo’s RAP commitments. I accept Ms Jones’ evidence that the Multi-Site Manager positions did not appear as vacant positions within the careers listing documents because they had already been nominally filled by Ms Cook and Ms Waihape in November or December 2016, after Sodexo identified them as the most suitable people for those positions as part of the tender process for the new RTA contracts. Sodexo was under no obligation to invite Ms Webb to express interest in the Multi-Site Manager positions during November or December 2016, prior to any decision having been made to abolish the relief pools and prior to the date of Ms Webb’s dismissal. Further, while Ms Webb maintains that her knowledge and experience in the Project Manager position exceed Ms Cook’s and Ms Waihape’s, she has not offered any evidence that she possessed the requisite knowledge, skills and experience relevant to indigenous affairs and Sodexo’s RAP commitments to fulfil the Multi-Site Manager positions. I consider that it was reasonable in all of the circumstances for Sodexo not to inform Ms Webb of the Multi-Site Manager positions and invite her to express interest in those positions.
[260] I do not accept Ms Webb’s submissions that had Sodexo consulted with her about her redundancy soon after a definite decision was taken to abolish the relief pools, it is reasonable to conclude that a position would have arisen within Sodexo’s enterprise to which Ms Webb could have been redeployed. I note that a similar argument was advanced and expressly rejected by the Full Bench in its considering that Ms Hallam had grounds to appeal her first decision. The Full Bench stated:
“[33] The argument essentially contends that because Sodexo is a large multi-national company, its size, resources and turnover means that it will almost inevitably be in a position to redeploy redundant employees. In the absence of an identified existing position, Counsel argued it was reasonable that one be created.
[34] We do not accept this submission, which would amount to a finding that section 389(2) has limited or no application to employers of a certain size. There is no basis for reading such a limitation into the legislative scheme of the FW Act.
[35] As the Full Bench observed in TAFE NSW v Pykett, to show that it would have been reasonable for an employer to redeploy a person, it is not necessary to identify a particular job or position in which the dismissed employee could have been redeployed. However, the Commission must be satisfied on the balance of probabilities, and based on the evidence, that there was a ‘job or a position or other work’ to which it would have been reasonable to redeploy the person. In the present case, the evidentiary burden did not reach the requisite threshold. This ground of appeal does not disclose an arguable case of appealable error. [footnotes omitted]”
[261] I consider that the Full Bench’s consideration in that matter applies similarly to the argument in this case. I am not satisfied on the evidence before me and on the balance of probabilities that a position suitable for Ms Webb to be redeployed to would have necessarily arisen after the date that a definite decision was made to abolish the relief pools, which I have found to be on or shortly after 13 January 2017 and I am not satisfied that it would have been reasonable for Ms Webb to be redeployed to a hypothetical position of that nature.
[262] I do not accept that the provision of outdated careers listing documents to her by Ms Jones prevented Ms Webb from considering vacant positions which she might otherwise have been aware of. Despite how irregularly the careers listing documents were produced and distributed to Ms Webb between 24 February 2017 and 24 March 2017, it is uncontested that Ms Webb had access to and used Sodexo’s online vacant position listings while investigating her possible redeployment.
[263] Having regard to the list of roles internally advertised by Sodexo between by at least 28 February 2017 and 24 March 2017, perused by Ms Webb on Sodexo’s online vacant positions listings, Ms Webb discounted them all. It is not clear if the Facility Strategy Manager role advertised on 12 February 2017 was still available when Ms Webb first was informed of the redundancy on 28 February 2017. The position of Facility Strategy Manager is not described in the example positions within clause 11 of the Agreement and there is no information before me regarding the nature of the duties performed by a Facility Strategy Manager. It would appear to me that the Facility Strategy Manager position may have been one of the only roles suitable for Ms Webb, based on title only. However, having the benefit of such material since late October 2017 in these proceedings, Ms Webb did not raise it as having been a suitable role that she was denied the opportunity of redeployment. It was not put in her material or at hearing, and therefore it is reasonable to conclude that it is a role that Ms Webb was not interested in.
[264] I do not consider that the spreadsheet produced by Ms Jones and tendered by Ms Webb detracts from Ms Jones’s evidence as a whole. Ms Jones herself stated at the hearing that the spreadsheet, “…wouldn’t have had too much detail because in Ms Webb’s particular case she requested after a majority of our phone conversations that everything be put into writing so there are a lot of emails following our conversations”. 89 Whilst I acknowledge that Ms Jones stated at hearing that she would have recorded the date of her conversations with Ms Webb in the spreadsheet document and those dates do not in fact appear in the spreadsheet that is not enough by itself to significantly colour my opinion of Ms Jones’ evidence as a whole.
[265] I accept that Ms Jones was operating under a significant workload throughout February 2017. However, I do not accept that Ms Jones must therefore have been incapable of giving reasonable care to Ms Webb’s possible redeployment. It is not contested that Ms Webb was able to and did access Sodexo’s online vacancy listings to investigate her possible redeployment throughout March 2017. Ms Jones instructed Ms Webb to inform her of any positions which she considered may be suitable for her to be redeployed to after which she was to provide Ms Webb with additional details of those positions, and it is uncontested that Ms Webb did not indicate to Ms Jones any positions that she was interested in. There is no evidence that Ms Jones’ workload would have prevented her from providing those details to Ms Webb had she asked, or from taking further action in respect of Ms Webb’s redeployment had a suitable role for Ms Webb been identified.
[266] Ms Webb in her submissions relied on Aldred and alleged that Sodexo had imposed an onus upon her to initiate a search for appropriate opportunities for her redeployment and determine what vacant positions may be suitable for her. Ms Webb submits that the she did not possess relevant information that would have enabled her to consider the suitability of vacant roles. I do not accept Ms Webb’s submissions.
[267] I accept that before Ms Webb was made aware that her position was to be made redundant, Ms Jones had already considered Ms Webb’s skillset, knowledge and experience and whether there were any vacant positions suitable for Ms Webb and comparable to her Project Manager position. To adopt the terminology in Aldred, Ms Jones ‘initiated’ the redeployment process by her action in this respect.
[268] Only after Ms Jones was unable to identify any vacant positions suitable for Ms Webb did she instruct the redundancy letter to be sent to Ms Webb, along with the first careers listing document. I do not consider that because Ms Jones did not provide Ms Webb outright with additional details in respect of the positions within the careers listing documents that she did not act reasonably.
[269] Having considered Ms Jones’ evidence regarding her alleged phone call to Ms Webb on 2 March 2017, I cannot conclude that Ms Jones did call Ms Webb. I note that Ms Jones’ email to Ms Webb at 6:12pm on 7 March 2017 included a chronology of Ms Jones’ contact with Ms Webb since 24 February 2017, and did not describe a phone call of 2 March 2017. I consider it likely that Ms Jones was confused as to whether a phone call occurred on 2 March 2017, perhaps due to the significant period of time over which this matter has progressed. I do not consider that Ms Jones has attempted to intentionally mislead this Commission by her evidence regarding the alleged phone call of 2 March 2017.
[270] Whether or not the phone call of 2 March 2017 occurred, that does not discount the other evidence of alternative employment that Ms Webb may have considered suitable to be redeployed to and the terms and conditions of that work. Having considered Ms Webb’s evidence at the hearing and her emails to Ms Jones, I consider that Ms Webb’s consideration of the suitability of any particular role for her redeployment was affected by the following, reasonable and understandable considerations:
(a) whether she would have been effectively required to move from her current residence, restricting her to ‘fly-in fly-out’ roles with travel paid for at Sodexo’s cost or to positions within a reasonable distance from her residence on the Australian eastern coast; or
(b) if she was required to relocate, whether Sodexo would have covered the costs of her relocation; or
(c) whether the position would have resulted in a substantial reduction to her total remuneration; or
(d) whether the position would have been of substantially lower seniority than her relief Project Manager position.
[271] These are all very reasonable considerations Ms Webb needed to take into account when considering the careers listing. I note that Ms Webb has stated that any job would have been better than no job to her and that had Ms Jones offered her a role for direct redeployment she would likely have accepted such a role. However, it is apparent from Ms Webb’s emails to Ms Jones and her evidence at hearing that she considered that she needed more information about the roles described in the careers listing documents, including in relation to the above matters, to determine whether she would have been interested in any of those roles. I do not accept that Ms Webb would have accepted any role offered to her by Ms Jones for her redeployment without being provided with additional information regarding the above matters.
[272] While the careers listing documents did not include detailed information about the precise nature and duties of each vacant position, they did include information about each position’s title, location, whether it was ‘fly-in fly-out’, whether it was full-time, part-time or casual and whether work would be on a rostered basis and the timing of that roster. I consider that Ms Webb’s experience with Sodexo’s enterprise would have allowed her to understand the broad nature of a position from the position’s title only, and the additional information contained within the careers listing documents would have been sufficient for Ms Webb to make a preliminary determination as to whether she may be interested in a particular role.
[273] I consider that had Ms Webb expressed to Ms Jones an interest in any of Sodexo’s vacant positions and satisfied Sodexo that she was suitable to perform that position, Ms Webb would not have been required to formally apply for the position or compete publically for the position.
[274] As the period for consideration of redeployment drew to a close, Ms Webb repeatedly informed Ms Jones that she did not consider that there were any roles of interest within the careers listing document, and none of the vacant positions met her skill and experience. One day prior to the dismissal Ms Webb made inquiries as to why the roles at the ‘new sites’ had not been placed on the careers listing, however it is clear these roles had been, in my view, appropriately filled by existing employees.
[275] My finding in this matter is not made without difficulty in light of my comments on the process followed by Sodexo in managing Ms Webb’s redundancy and possible redeployment, namely the delay in the communication of the decision. However, given Ms Webb’s reasonable but restrictive prerequisites for a role that she would consider suitable for her redeployment, I consider it unlikely that any of the actions that Ms Webb submits would have been reasonable for Sodexo to take would have actually facilitated Ms Webb’s redeployment.
[276] I have considered Ms Webb’s evidence and submissions that during May 2017 she found an online advertisement for ‘Village Manager’ positions on the Australian eastern coast, which Ms Webb submits would have been reasonable for her to be redeployed to. I accept Mr Rynja’s uncontested evidence that the advertisement was made in error, and should have read that Sodexo was seeking expressions of interest only.
[277] For all of the reasons above, including the many conversations Sodexo held with Ms Webb, and the communication between the parties, I determine that Sodexo satisfied itself that it would not be reasonable to redeploy Ms Webb before terminating her employment. I am satisfied that Sodexo was entitled to make such a decision. I determine that it would not have been reasonable in the circumstances for Ms Webb to be redeployed within Sodexo’s enterprise or the enterprise of one of Sodexo’s associated entities.
Conclusion
[278] I have determined that pursuant to s.389(1)(a) of the Act, Ms Webb’s position was no longer required to be performed by anyone as a result of the abolishment of the Queensland relief pool.
[279] Having regard to the consideration in s.389(1)(b) of the Act, I have determined that Ms Webb’s employment was not covered by a modern award or enterprise agreement. On that basis, Sodexo had no obligation to consult with Ms Webb about her redundancy under the terms of a modern award or enterprise agreement.
[280] I have determined that pursuant to s.389(2) of the Act it would not have been reasonable in the circumstances for Ms Webb to be redeployed within Sodexo’s enterprise or the enterprise of one of Sodexo’s associated entities.
[281] Having considered all of the facts and circumstances of this matter, I have determined that Ms Webb’s dismissal on 24 March 2017 was a case of genuine redundancy and was not an unfair dismissal in accordance with s.385(d) of the Act. The substantive application pursuant to s.394 of the Act is dismissed.
[282] I Order accordingly.
COMMISSIONER
Appearances:
Mr Ryan Haddrick of Counsel instructed by Town Solutions Pty Ltd, for the Applicant;
Mr Tim Lange, Piper Alderman Lawyers, for the Respondent.
Hearing details:
Brisbane, 7 & 8 August 2018.
Final written submissions:
Final written submissions for the Applicant, 31 October 2018
Final written submissions for the Respondent, 17 October 2018
Printed by authority of the Commonwealth Government Printer
<PR705726>
1 Statement of Ms Irene Webb, 21 November 2017, Exhibit A2, [20].
2 [2010] FWAFB 7578, [5].
3 Hallam v Sodexo Remote Sites Australia Pty Ltd [2017] FWCFB 6847.
4 [2018]FWCFB 1496 at [26].
5 Hallam v Sodexo Remote Sites Australia Pty Ltd [2017] FWCFB 6847, [43] – [48].
6 Transcript of proceedings, PN498 – PN509.
7 Statement of Ms Irene Webb, 21 November 2017, Exhibit A2, [25] – [26].
8 Statement of Ms Irene Webb, 21 November 2017, Exhibit A2, [29].
9 Statement of Ms Irene Webb, 21 November 2017, Exhibit A2, Annexure IW4.
10 Statement of Ms Irene Webb, 21 November 2017, Exhibit A2, Annexure IW7.
11 Statement of Ms Irene Webb, 21 November 2017, Exhibit A2, [37].
12 Statement of Ms Irene Webb, 21 November 2017, Exhibit A2, [42].
13 Statement of Ms Irene Webb, 21 November 2017, Exhibit A2, [44].
14 Statement of Ms Irene Webb, 21 November 2017, Exhibit A2, [45].
15 Statement of Ms Irene Webb, 21 November 2017, Exhibit A2, [46], Annexure IW11.
16 Statement of Ms Irene Webb, 21 November 2017, Exhibit A2, [47].
17 PN532 – PN534.
18 PN544 –PN546.
19 Email from Ms Irene Webb to Ms Shalyn Jones, 23 March 2017, Exhibit R1.
20 Statement of Ms Irene Webb, 12 October 2017, Exhibit A1, [5], [7].
21 PN122 – PN126.
22 PN211 – PN214.
23 PN239 – PN247.
24 PN282 – PN291.
25 PN331 – PN366; PN412.
26 PN469 – PN472.
27 Statement of Mr Colin Purves, 13 December 2017, Exhibit R7, [19].
28 Statement of Mr Colin Purves, 13 December 2017, Exhibit R7, [29] – [35].
29 PN1247 – PN1252.
30 PN1247.
31 PN1076; PN1091 – PN1095.
32 PN1122 – PN1150; PN1262 – PN1270.
33 PN1141 – PN1150.
34 PN1162 – PN1167.
35 PN1272 – PN1277.
36 PN1322 – PN 1324.
37 PN1345 – PN1354.
38 PN1454 – PN1459.
39 PN1553 – PN1557.
40 PN1633.
41 PN1745.
42 PN1754 – PN1777.
43 PN1797.
44 PN1805 – PN1813.
45 Statement of Ms Shalyn Jones, 11 December 2017, R9, [5].
46 Statement of Ms Shalyn Jones, 11 December 2017, R9, [8] – [10].
47 Statement of Ms Shalyn Jones, 11 December 2017, R9, [14] – [15].
48 Statement of Ms Shalyn Jones, 11 December 2017, R9, [17] – [18].
49 PN2160 – PN2175.
50 Statement of Ms Shalyn Jones, 11 December 2017, R9, [19] – [26].
51 Statement of Ms Shalyn Jones, 11 December 2017, R9, Annexure SJ2.1, SJ2.2.
52 Statement of Ms Shalyn Jones, 11 December 2017, R9, Annexure SJ3.
53 Statement of Ms Shalyn Jones, 8 May 2017, Exhibit R8, Annexure SJ11.
54 Statement of Ms Shalyn Jones, 8 May 2017, Exhibit R8, Annexure SJ13.
55 Statement of Ms Shalyn Jones, 8 May 2017, Exhibit R8, Annexure SJ12.
56 Statement of Ms Shalyn Jones, 8 May 2017, Exhibit R8, Annexure SJ16.
57 Statement of Ms Shalyn Jones, 8 May 2017, Exhibit R8, Annexure SJ17.
58 Statement of Ms Shalyn Jones, 8 May 2017, Exhibit R8, [60] – [61].
59 PN2147 – PN2159.
60 PN2160 – PN2172.
61 PN2261 – PN2264.
62 PN2277.
63 PN2306 – PN2315.
64 PN682 – PN684.
65 PN1248 – PN1251.
66 PN2164 – PN2165.
67 [2017] FWCFB 3005.
68 Ingersol v Castle Hill Country Club Ltd [2014] FCCA 450; CPSU v G4S Custodial Services Pty Ltd [2014] FWC 4684.
69 Hallam v Sodexo Remote Sites Australia Pty Ltd [2018] FWCFB 1496, [20].
70 Hallam v Sodexo Remote Sites Australia Pty Ltd [2018] FWCFB 1496, [22] – [46].
71 Hallam v Sodexo Remote Sites Australia Pty Ltd [2017] FWCFB 6847, [20].
72 Hallam v Sodexo Remote Sites Australia Pty Ltd [2018] FWCFB 1496, [25].
73 (2002) IR 387, [9].
74 PN688 – PN694.
75 Hallam v Sodexo Remote Sites Australia Pty Ltd [2018] FWCFB 1496, [23] – [33].
76 Fair Work Act 2009, s.52(1).
77 Hallam v Sodexo Remote Sites Australia Pty Ltd [2018] FWCFB 1496, [41] – [42].
78 PN495.
79 PN2173 – PN2175.
80 Ulan Coal Mines Limited v Honeysett[2010] FWAFB 7578, [28].
81 Technical and Further Education Commission T/A TAFE NSW v Pykett[2014] FWCFB 714, [36] – [37].
82 Jenny Craig Weight Loss Centres Pty Ltd v Margolina [2011] FWAFB 9137.
83 Margolina v Jenny Craig Weight Loss Centres Pty. Ltd. [2011] FWA 5215, [36], [40], [39] – [43].
84 Ulan Coal Mines Limited v Honeysett[2010] FWAFB 7578, [30] – [31].
85 [2012] FWA 8289, [36] - [40].
86 Technical and Further Education Commission T/A TAFE NSW v Pykett[2014] FWCFB 714, [40]; Hallam v Sodexo Remote Sites Australia Pty Ltd [2017] FWC 4105, [107] (subject to appeal in [2018] FWCFB 1496 but in relation to a separate issue).
87 Hallam v Sodexo Remote Sites Australia Pty Ltd [2017] FWCFB 6847.
88 Ibid, [20] – [21].
89 PN2149.
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