Ms Catherine Baines v Comdain Infrastructure T/A Comdain Infrastructure
[2019] FWC 2800
•1 MAY 2019
| [2019] FWC 2800 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Catherine Baines
v
Comdain Infrastructure T/A Comdain Infrastructure
(U2018/12633)
COMMISSIONER HUNT | BRISBANE, 1 MAY 2019 |
Application for an unfair dismissal remedy – jurisdictional objection – applicant’s dismissal was a genuine redundancy – applicant’s receptionist position no longer required – applicant unable to perform duties of project administrator role– not reasonable to redeploy applicant – dismissal was a genuine redundancy – application dismissed.
[1] On 6 December 2018 Ms Catherine Baines 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 on 4 December 2018 by Comdain Infrastructure (Comdain).
[2] Ms Baines commenced permanent employment with Comdain on 2 April 2018 as a Receptionist. She had earlier performed work at Comdain a casual employee of Hays Recruitment from around October 2017.
[3] In responding to the unfair dismissal application, Comdain raised a jurisdictional objection to the application on the grounds that the termination of Ms Baines’ employment was a case of genuine redundancy pursuant to s.389 of the Act.
Legislation
[4] 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.”
[5] 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.”
[6] I am satisfied that the application was made within the 21 day time limit, and Ms Baines is a person protected from unfair dismissal, having served at least six months in the employment of Comdain. The Small Business Fair Dismissal Code does not apply.
[7] Ms Baines cannot have been unfairly dismissed if her dismissal occurred as a result of a genuine redundancy. Whether Ms Baines’ 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.”
[8] Comdain maintained the following:
(a) Ms Baines’ position of receptionist was no longer required from early December 2018;
(b) Ms Baines was employed pursuant to the Clerks – Private Sector Award 2010 (the Award), and it had it met its obligations to consult with Ms Baines after it had made a definite decision to make her role redundant; and
(c) it had not been reasonable in the circumstances for Ms Baines to be redeployed within its enterprise or the enterprises of any of its associated entities.
Hearing
[9] This matter was heard before me in Brisbane on 1 April 2019. Ms Baines appeared for herself. Comdain was represented by Mr Jamie O’Brien, Senior Legal Counsel of Service Stream Limited, an associated entity of Comdain.
[10] The following persons gave evidence before the Commission:
• Ms Baines;
• Ms Eva Khoury, General Manager – People and Culture;
• Mr Phil Sheridan, State Manager – Queensland; and
• Mr Michael Jones, former Program Manager, Engineering Treatment (not required for cross-examination).
Evidence of Ms Baines
[11] At the time Ms Baines commenced employment with Hays Recruitment working at Comdain in March 2017, Comdain held a contract with APA Group to complete gas connections throughout Brisbane. Ms Baines completed job packs for this project and applied for Dial Before you Dig applications. The APA contract was subsequently lost by Comdain.
[12] For a short period of time Ms Baines was not required by Comdain, but she was welcomed back in October 2017 to perform reception and administration duties. On 2 April 2018 she commenced full-time, permanent employment with Comdain as a Receptionist.
[13] Ms Vanessa Read came to work for Comdain, employed by Hays Recruitment performing work on the ‘Burst Water Main Project’. When this work ended, Ms Read left Comdain.
[14] Ms Tamara Reed, Accounts Administration Officer took five weeks’ leave. Ms Baines was informed that she would cover for Ms Tamara Reed’s leave, however Ms Vanessa Read was then called back to cover for Ms Tamara Reed.
[15] At a point in time, Comdain again won the APA work for a period of two years. Ms Read ceased covering for Ms Reed and immediately began to assist in the administration of the APA contract. Ms Baines was slighted that she had not been asked to apply for the role. Ms Baines approached Mr Jones and Mr Bob Ryan and questioned why she had not been offered the opportunity to apply for the role. They informed Ms Baines that Ms Read had more experience, which Ms Baines does not believe is true. It is her evidence that Ms Read required ‘full training’, and Ms Baines had been assisting Ms Roisin Quinn in this area. Ms Baines considered that she had more experience than Ms Read.
[16] At monthly meetings staff were assured that Comdain was in a solid financial position, and senior staff were employed.
[17] On 30 November 2018 Ms Baines was asked to meet with Mr Jones and Mr Sheridan. She was not offered the opportunity of a support person at this meeting. It is Ms Baines’ evidence that she was handed a letter and told by Mr Jones that her position with Comdain had been made redundant. She was provided with a list of vacant roles available in Victoria and NSW, together with an estimation of redundancy pay.
[18] That evening Ms Khoury telephoned her and suggested that Ms Baines should email reasons why she should stay at Comdain. Ms Khoury informed Ms Baines that Comdain would recognise her former service with Hays so as to provide to Ms Baines severance pay where she was not otherwise entitled to severance pay.
[19] On 1 December 2018 Ms Baines emailed relevant Comdain managers a two page document with improvements she has implemented while at Comdain, together with a timeline and a description of the duties in her role:
• Answering phone calls/taking messages;
• Accepting parcels and making sure they get to the appropriate person;
• Greeting guests;
• Set up and the tidying of meeting rooms;
• Restocking stationery/paper around the office;
• Monitor and order stationery;
• Cleaning the kitchen/emptying kitchen bin;
• Day sheet;
• Ordering stationery;
• Ordering and issuing PPE and uniforms;
• Processing invoices relating to stationery/uniforms/fleet and warehouse;
• Issuing PO’s when needed;
• Arranging gifts for all occasions;
• Track staff birthdays and acknowledging them by sending email;
• Booking fleet servicing;
• Manage Linkt account;
• Enter timesheets into Greentree
• Filing of DBYD for the gas project;
• Watering plants in the office;
• Complete admin tasks when asked from staff;
• Catering whether ordering Subway or going to Woolworths and creating the catering myself.
[20] On 3 December 2018 Ms Baines was unwell and did not attend for work. Ms Baines attended for work on 4 December 2018 at 7.30am. At 9.00am she met with Mr Sheridan, Mr Jones and Ms Khoury and was informed that there was no change in their decision to make her redundant.
[21] During the hearing Ms Baines gave evidence that she considered that Comdain probably knew in around September 2018 that it was going to make her redundant. She submitted that she should have been given the role of Project Administrator for the APA contract over Ms Read, because Ms Baines was a full-time, permanent employee of Comdain and Ms Reed was a temporary employee of Hays Recruitment.
[22] I put to Ms Baines that if Ms Read had been employed directly by Comdain for a small number of weeks or months at the time Ms Baines was made redundant, would it be necessary for Comdain to displace Ms Read and place Ms Baines in the role? Ms Baines accepted that if Ms Read was directly employed by Comdain, Ms Read would be entitled to the position Project Administrator, not Ms Baines.
[23] It was Ms Baines’ evidence that some of the duties that she was fulfilling as a Receptionist are now being done by other employees who were employed at the time of her dismissal. She submitted that a company should always have a base number of employees, even when it is quiet, to then be prepared and organised for when the next contract is won. She submitted that it is necessary for a business to have employees ‘ready to go’. She disagreed that it is appropriate for a business to let employees go during quiet times.
[24] Ms Baines submitted that where some contracts were won by Comdain, if there were options that could be exercised to extend the contracts, they were probably exercisable by both the client and by Comdain. Ms Baines does not have any direct knowledge of which party to a contract may exercise an option.
[25] Comdain’s evidence included Ms Read, in the role of Project Administrator having more than five years’ experience in a similar role. Ms Baines disputed that Ms Read was performing all of the duties in the job description. She refuted that Ms Read was performing any roles in addition to the ones that Ms Baines performed at reception.
[26] Ms Baines agreed that she had not ever worked as a Project Administrator. She has not undertaken tasks such as the collation of an operations manual, or construction manual, management plan or asset management plan. She accepted in cross-examination that she would require training. Her evidence is that she could have easily, with instruction, completed these tasks. She thought it would be unlikely that a Project Administrator would do these tasks, but they might be performed by a Project Manager, as she considered them to be important, legal documents.
[27] Ms Baines stated that she is not sure if she has ever been through an entire project life cycle, but she is quick to learn and understand how a project works.
[28] Relevant to the duties performed by a Project Administrator, where Comdain led evidence that Ms Baines had only ordered items such as tea, coffee and personal protective equipment, she considered that was stated to put her down. Her evidence is that it is not difficult to learn to order various product such as pipes and other material. She considered that she could learn how to do so and she backs herself. If a client required numerous purchase orders to be completed in a day, she said she could do so with a quick turnaround and she could have stayed back to perform the work, if necessary.
[29] Ms Baines agreed in cross-examination that when she was called into the boardroom on 30 November 2018 and informed of the decision, including that Comdain would redistribute the receptionist functions to existing employees, she was not interested in the alternative roles offered as they were interstate roles. She agreed that she was informed by Ms Khoury that if Ms Baines could offer up alternatives to making her role redundant, or if she needed an extension of time to respond, that was available to her.
[30] I questioned Ms Baines as to whether, if the consultation period had been longer, she could have offered up an alternative suggestion to redundancy? Ms Baines stated no, she did not think she could have offered up an alternative suggestion. She thought she was offering up an alternative when she wrote to Comdain over the weekend to explain all of her skills and abilities.
[31] Ms Baines agreed that Ms Khoury informed her that Comdain was prepared to treat her employment as though it had been in excess of 12 months of direct employment, which would provide to her an additional week’s payment in lieu of notice, together with four weeks’ severance pay.
[32] Ms Baines submitted that the Receptionist role should still be performed and she should not have been made redundant.
Evidence of Ms Khoury
[33] Ms Khoury gave evidence that as a result in a downturn in trade, the senior management of Comdain performed a review of the existing organisational structure in Queensland and decided to restructure its operations. Since August 2018 there has been a reduction in the following roles:
(a) five positions not replaced following resignation of incumbents;
(b) three positions made redundant in December 2018 including the role of receptionist, a graduate engineer and a senior project manager;
(c) a large decrease in field employees.
[34] Ms Khoury was aware that Ms Baines’ role was covered by the Award and consultation was required. Ms Koury informed Mr Jones and Mr Sheridan that consultation would be required. The consultation clause within the Award is as follows:
“Article I. 8. Consultation about major workplace change
8.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and
(c) commence discussions as soon as practicable after a definite decision has been made.
8.2 For the purposes of the discussion under clause 8.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
8.3 Clause 8.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
8.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 8.1(b).
8.5 In clause 8:
significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
8.6 Where this award makes provision for alteration of any of the matters defined at clause 8.5, such alteration is taken not to have significant effect.” (emphasis retained)
[35] Ms Khoury spoke with Ms Baines at approximately 4.45pm on 30 November 2018. Ms Baines had met with Mr Jones and Mr Sheridan, and she explained to Ms Khoury that she could not understand why her role was to be made redundant when people still needed help with administration tasks. Further, she considered it unfair that she was to be made redundant when a temporary worker was fulfilling the role of Project Administrator. Ms Baines stated that she did not wish to move into the other roles as they are interstate roles.
[36] Ms Khoury explained to Ms Baines that it had not been an easy decision for Comdain to make, and senior managers had been deliberating for a number of months over the decision. It was explained that two other employees were being informed of their roles becoming redundant.
[37] Ms Khoury explained to Ms Baines what the consultation period meant, and if Ms Baines had suggestions that Comdain hadn’t considered, that was the time for her to raise them. If she needed more time, Comdain could accommodate that. The details of Comdain’s employee assistance program were provided.
[38] On 1 December 2018 Ms Baines detailed her experience and duties reproduced at [19].
[39] On 4 December 2018 a meeting was held with Ms Baines to advise that a decision had been made following the consultation period to end her employment due to redundancy. Ms Khoury’s evidence is that Ms Baines did not take the announcement well.
[40] Following the meeting Ms Khoury obtained approval to increase the termination payment to Ms Baines on account of her personal circumstances. This ex gratia amount is $6,250.
[41] Ms Khoury’s evidence is that on the date of redundancy, 4 December 2018, the only vacant full-time, part-time or casual employment positions available at the time within all of Comdain’s group of companies were the ones shown to Ms Baines and rejected by her because they are interstate roles.
[42] During the hearing Ms Khoury gave evidence that the role of Receptionist and Project Administrator are very different, including that the Project Administrator requires an understanding of the project life-cycle. It requires an intimate understanding of how a utilities project runs. There is significant external and internal stakeholder engagement required, and knowledge of the contract.
[43] In cross-examination, Ms Khoury was asked why Ms Read was not required to apply for the Project Administrator role. Ms Khoury responded that Ms Read had been engaged through Hays Recruitment, and it was her understanding that she had many years of experience with a competitor of Comdain, that being Interflo.
[44] Ms Khoury was asked why the Project Administrator role was not advertised. Ms Khoury stated that sometimes when Comdain tenders for jobs it nominates specific individuals to fulfil specific roles. Some tenders will request 10 - 20 years of experience, or other technical skills. Ms Khoury was not aware specifically as to this tender whether Comdain needed to nominate specific individuals to perform the work.
[45] It was Ms Khoury’s evidence that the decision to make the Receptionist role redundant was made at the end of November 2018. Comdain had earlier used natural attrition for other roles, but didn’t need to make the Receptionist role and two other roles redundant until late November 2018.
[46] Ms Khoury reviewed Ms Baines’ CV in late November 2018 and formed the view that Ms Baines could not perform the end-to-end duties of a project role.
[47] Ms Baines suggested that Ms Read does not perform all of the roles described in the Project Administrator job description. Ms Khoury responded that Ms Read would be required to perform the duties. Ms Baines suggested to Ms Khoury that the job description is largely ‘made up’, and that the majority of the role is to deal with claims. Ms Khoury did not agree.
[48] Ms Khoury went through the duties of the Project Administrator role and stated which functions she considered that Ms Baines would be able to adequately perform. For ease of reading, I have included Mr Sheridan’s evidence as well:
Task | Ms Khoury | Mr Sheridan |
Obtain quotations from suppliers/potential suppliers as required by the operating unit/project team | No | Yes, minor material aspects, but not the detailed |
Entry of timesheets hours/costs, plant & equipment hours/costs and other project related charges as appropriate for the operating unit/project as required | No | Yes, within reason |
Where appropriate, manage internal stock, ensuring stock is charged against a specific project | Manage internal stock yes, but not charged against a specific project - no | No evidence of management of appropriate stock. Yes, she has done so for PPE, but it’s not the same as materials. |
Where required provide supplier invoices to the appropriate authoriser within the operating unit/project team and providing approved invoices to the Comdain Finance team in a timely manner | No | APA contract – quite significant work, make up a schedule of rates, collate information – no evidence of Ms Baines undertaking that. KPI field activity – 24 hour turnaround. 12-50 work orders coming through each day. Do not consider that she could do it in a timely manner. |
Co-ordinating and managing purchase requisitions from the operating unit/project team, ensuring that requisitions are processed in a timely and accurate manner | No | Consumables only (tea, coffee, PPE), but not project work |
Raise purchase orders within the Comdain ERP system in a timely and accurate manner from requisitions received or other methods of request as may be appropriate | Yes | Require experienced individual to ensure PO raised within 24 hours. No luxury to train a person. |
Ensuring purchase orders are raised and issued with a high degree of accuracy specifically in regard to Project details, activity code, supplier material/service/supply code, delivery details, cost | No | Yes, in time, but not to hit the ground running. Ms Baines not experienced. |
Co-ordinating and managing the provision of delivery/supply documentation from Comdain project/site/field staff or sub-contractors/suppliers to enable accurate and timely purchase order receipting | No | No, no experience and exposure. |
Purchase order receipting within the Comdain ERP system in a timely manner, which a high degree of accuracy, specifically in regard to receipt of goods/services against the correct project and activity code, price and quantity of receipted items, variances in price, quantity and products delivered | ERP system – yes. Receipt of goods/services to correct project, no. Price/quantity, yes. Variances in price, quantity and products delivered, no | Yes. |
Liaise with suppliers as required, regarding matters such as (but not limited to) pricing, supply – timely delivery of products, correct items being supplied, backorders etc. | No | No, not having exposure in dealing with suppliers in the supply chain, including contractors. |
Manage purchase order tolerances, ensuring purchases are not in excess of the relevant purchase order raised | No | No, no budget management experience. |
Regularly manage purchase orders within the Comdain ERP system, ensuring outstanding purchase orders are closed, amended, updated when/where required, therefore supporting project teams in forecasting and reporting project financial performance | Navigation of ERP system, yes. Complexity of supporting project teams etc. no | No |
Proactively manage supplier details in the Comdain ERP system, ensuring details are kept up to date at all times | Yes | Yes |
Where required, ensure adherence to the Comdain Delegation of Authority policy | Yes | Yes |
Completion of credit application documentation as required by new suppliers for submission to the Comdain Commercial team | No | Unaware if Ms Baines could undertake this |
Liaising with the Comdain Commercial team in relation to new supplier applications, having regard for such matters as payment terms, product warranties, pricing structures, liquidated damages etc. | No | No, especially liquidated damages |
Maintaining any/all registers (for example variation registers, attendance registers, vehicle registers, safety registers etc. | Yes to attendance, vehicle and safety. No to variation registers | Yes to km reading, fuel, within time, yes |
Report collations, archiving and distribution | Depend on the technical nature of the reports | No experience of exposure |
Management of any/all compliance and client related documentation (for example audits, training records etc) | No to audits, yes to training records | No knowledge of Ms Baines completing for clients |
Management of meetings including scheduling of meetings, distribution of the agenda and other materials and minuting meetings | Yes | Yes |
Assistance in the preparation of client claims where required | No | No, not with the level of detail and timeframe required |
Management of relevant processes, procures and systems | Yes | Yes, with relevant training |
Proactively suggest improved ways of transacting with suppliers and sub-contractors | No | No, because of financial models |
Other operations and project related administration support as and when required | Yes | Yes |
Ordering/re-ordering of all office stationery and other consumables | Yes | Yes |
Managing incoming and outgoing mail including daily mail runs | Yes | Yes |
Coordination of any maintenance issues as/when required | Yes | Would need to understand if it’s a supplier or client issue, so no. |
Ad hoc tasks related to functioning of the office environment as required | Yes | Yes |
Evidence of Mr Sheridan
[49] Mr Sheridan joined Comdain in July 2018. He was Ms Baines’ manager from 4 July 2018 to 11 October 2018. Mr Jones then became Ms Baines’ manager.
[50] In the second half of 2018, the Queensland division of Comdain failed to win 20 opportunities it tendered for. The overhead costs became unsustainable for maintaining the staff headcount in Queensland. The role of Receptionist as selected as one of the positions for redundancy.
[51] A meeting of 30 November 2018 occurred where Ms Baines was informed of the consultation period. Part of the letter issued to Ms Baines is produced below:
“Dear Cate,
Re: Notice of Consultation for Redundancy
Further to our discussion today, I am writing to inform you that it is with regret that Comdain Infrastructure will be reducing its operations within its Queensland operation which will likely lead to your position being made redundant. This is due to a change in market conditions causing a downturn in the current and future workload of the business.
……..
…….
We will arrange to meet with you again on Monday 2rd December at 1pm should you wish to discuss anything further or if there is anything else that you wish for the Company to consider with regards to its decision to make your position redundant…….”
[52] On 1 December 2018 Ms Baines sent information to Comdain for consideration, detailed at [19]. On 4 December 2018 Ms Baines was offered the opportunity to have a support person present at the meeting, which she declined. She was informed at that meeting that her role was redundant.
[53] Since 4 December 2018, the following duties have been made obsolete:
(a) ‘Front of house’ reception;
(b) Maintenance of attendance registers;
(c) Scheduling meetings and minuting meetings;
(d) Daily mail runs; and
(e) Management of relevant processes, procedures and systems.
[54] Since 4 December 2018, the following duties have been redistributed to other employees:
(a) Ordering stationery and other consumables;
(b) Coordination of any maintenance issues;
(c) Receipting of deliveries;
(d) Report collation, archiving and distribution; and
(e) Managing incoming and outgoing mail.
[55] The receptionist position remains unfulfilled and is not performed by anyone.
[56] During the hearing Mr Sheridan gave evidence that Ms Baines has not managed a project through a life cycle. He had only worked with Ms Baines for some months, but he stated that as he has 25 years’ experience in utilities, he was aware of her experience against that of Ms Read.
[57] Ms Baines suggested that Comdain had accommodated upskilling of other employees, and inquired why the same had not been afforded to her. Ms Baines provided a number of examples of employees who were given other jobs with little or no experience in the field. Mr Sheridan stated that this had occurred prior to his commencement, and in any event, those skills described by Ms Baines in the other roles do not require a great deal of training, or the employee held some basic skills already.
[58] Ms Baines suggested that Ms Read only had experience in ordering water pipes and not gas pipes. Mr Sheridan stated that the material is largely the same, but there are different pressure ratings. He stated that he was aware that Ms Read had ordered pipes for approximately 5.5 years in her earlier role. Ms Baines suggested that it’s as simple as ringing up and ordering pipes, to which Mr Sheridan disagreed.
[59] Mr Sheridan gave evidence that it was necessary for Comdain to nominate experienced individuals in the tender to be awarded the APA work. Ms Read was nominated in the tender, along with other experienced employees, and the contract was awarded shortly thereafter.
[60] Mr Sheridan agreed that Ms Read had to go to APA’s premises to learn APA’s claims process. He stated that it would have taken a very short period of time, given her earlier experience with Interflo.
[61] Ms Baines put to Mr Sheridan that she had been assisting Comdain with the APA contract in her Receptionist role. Mr Sheridan disputed this, stating that she had not provided much assistance at all.
[62] Mr Sheridan stated that it was a term of the APA contract that Comdain had experience to fulfil its obligations. It was his evidence that if an inexperienced person had been nominated, it would have impacted the winning of the contract.
[63] Mr Sheridan’s evidence as to Ms Baines’ ability to perform the Project Administrator role is set out in the table at [48]. Mr Sheridan estimated that it would have taken between 12 – 18 months of further training for Ms Baines to achieve the required level of competence to perform all of the duties of the Project Administrator role, which have included detailed training regarding the full lifecycle of a project.
Evidence of Mr Jones
[64] Mr Jones’ evidence is largely the same as Mr Sheridan’s. I note that Mr Jones was made redundant from Comdain.
Evidence post-hearing
[65] During the hearing, and after hearing evidence from Mr Sheridan that Comdain had won the APA contract after completion of a successful tender nominating key personnel, including Ms Read, I directed Comdain to file such material.
[66] On 5 April 2019, Mr O’Brien sent the following to my chambers:
“….Commissioner Hunt ordered the Respondent to file evidence of the client tender which required a skilled and experienced person to be utilised in the Project Administrator position that the temporary worker, Ms Vanessa Read, currently performs at Comdain Infrastructure (the “Skilled and Experienced Assertion”). The Respondent was required to file this additional evidence by 4pm Friday 5 April 2019.
The Respondent confirms that there were no formal tender documents issued by its client APT O&M Services (QLD) Pty Ltd (APA) in relation to this contract. There was no formal tender issued by APA before awarding the contract to Comdain.
Instead, the Respondent submits the following evidence in support of the Skilled and Experienced Assertion:
1. By letter dated 4 October 2018 APA informed Robert Ryan, Comdain Program Manager, that APA had agreed to accept a new Schedule of Rates and extend the “APT 646 and APT 678 Works Agreements” until 31 October 2019 under the existing terms and conditions. This letter is attached as Attachment A. Please be advised that because of the confidential nature of the data in that letter, the copy provided at Attachment A has been redacted by excluding an attachment which contained the agreed Schedule of Rates.
2. Attached as Attachment B is a copy extract from “APT 646 Works Agreement” which was extended by the letter at Attachment A. Clause 4.11(a) provides that “the Contractor must engage suitably qualified and experience Personnel to perform the Works”. Please be advised that because of the confidential nature of the data in the agreement, the copy provided at Attachment B is not the executed version and has been redacted by excluding pages 23-128. Pages 23-128 are not relevant for the purposes of the Skilled and Experienced Assertion. If the Commissioner directs the Respondent to provide these pages the Respondent will need to seek the client APA’s permission to file a complete copy of the agreement.
3. By email dated 25 October 2018, copy attached as Attachment B, Robert Ryan sent the names and time allocations of proposed Project Personnel to Gillian Bottoms (APA Network Supervisor), including Vanessa Reads involvement and 100% allocation to the project as the Project Administrator. This evidence also shows that Ms Vanessa Read was performing the duties of Project Administrator at least one month before the relevant time when the Respondent decided to make the Applicant’s role redundant. Therefore it was not a vacant position at the relevant time to which the Applicant could be redeployed to.
[67] In reply, Ms Baines submitted the following:
“This evidence from Comdain shows they did not tell the truth, under oath, in front of the Commissioner.
In reference to attachments, points 1. and 2. from Mr O'Brien I wish to note that;
1. There was no tender process as stated by Comdain. Comdain has a long business relationship with APA. This extends to Mr Bobby Hopper from Comdain being on a continual secondment role to APA.
2. Rob Ryan did approached APA to be considered for a new contract.
3. Vanessa Reed's did not have anything to do with Comdain getting approval for the contract with APA, nor was her name put forward until after the contract had been signed.
4. Comdain will have the option to extend the contract for two additional year as per the previous contract, giving extra employment to the project administrator.
In reference to point 3. from Mr OBrien I wish to note that;
1. Ms Vanessa Read should never have been bought back to work at Comdain knowing they were going to make my position Redundant. Ms Read left Comdain for 5 weeks for personal reasons. The Burst Water Mains project she was employed to work on was completed and she left for her personal reasons.
2. Another employee of Comdain, Ms Tamara Reed - Accounts, had booked an extensive leave period. I (Cate Baines) was told by Mr Rob Ryan that I would be covering her leave. I was not advised of any changes until Ms Vanessa Read returned to Comdain and was put in the role of accounts to cover Ms Tamara Reeds position.
3. On completion of covering this leave in Accounts, Ms Vanessa Reed was moved to helping Ms Rosie Quinn with making up the job packs for the APA Project, and then continuing on to learn from APA the requirements of processing the claims.
I should never have been made redundant from Comdain. Their act was harsh and very unjust.”
Consideration
[68] I turn now to a consideration of the criteria set out in s.389 of the Act. For Ms Baines; dismissal to be a case of genuine redundancy, Comdain must meet each of the criteria set out in s.389 of the Act.
s.389(1)(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
[69] I have considered the evidence and submissions regarding the nature of Ms Baines’ position. Comdain has decided against spending $65,000 per annum, plus superannuation on the role of Receptionist. All other employees must now absorb into their role some of the tasks, whether that be collecting their own mail, ordering stationery and the like.
[70] Ms Baines’ submission that an organisation should have a base level of employees employed in the good times and the bad is not accepted, nor is it on any rational view sensible. It makes no sense, in tough economic times, for an organisation to pay to have a Receptionist available to do all the many and varied tasks that a Receptionist performs, in the expectation that work will improve, if it cannot afford to do so.
[71] While Ms Baines’ duties were no doubt appreciated by those in the business during her employment, the employer has decided it can do without those functions being performed by one person, as detailed in Mr Sheridan’s evidence, which I accept.
[72] I determine that Ms Baines’ position was no longer required to be performed by anyone from 4 December 2018 because of changes in the operational requirements of Comdain’s enterprise.
s.389(1)(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
[73] There is no dispute that a modern award applied to Ms Baines’ employment. Ms Khoury’s evidence is that she was aware of the consultation obligations contained with the Award.
[74] Having regard to the letter issued to Ms Baines on 30 November 2018, I am satisfied that Comdain appropriately informed Ms Baines of the commencement of a consultation period with her, as soon as practicable after a definite decision was made by Comdain. On the evidence before me I am satisfied that a definite decision was not made to make Ms Baines’ role redundant until late November 2018.
[75] The notice was in writing, pursuant to the Award obligations. The consultation period was not a long period of time. Ms Baines provided information for Comdain’s consideration over the weekend, and then returned to work on the Tuesday. Whilst the consultation period was not lengthy, Ms Baines was unable to make any alternative suggestion for Comdain’s consideration. In answering a question from me, even if the consultation period had been longer, her evidence is that she would not have been able to make any alternative suggestion to redundancy other than not to make the Receptionist role redundant.
[76] I am satisfied that Comdain complied with its obligation under the Award to consult about redundancy.
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.
[77] The final matter for me to determine is whether it would have been reasonable in all of the circumstances for Comdain to have redeployed Ms Baines within its enterprise or the enterprise of one of Comdain’s associated entities.
[78] Ms Baines’ evidence is that she was provided with a list of all available roles within the Comdain Group, and she dismissed them because they were interstate. This is understandable.
[79] Ms Baines urged the Commission to find that she should have been offered the Project Administrator role because she was a direct Comdain employee and Ms Read was not.
[80] In examining the redeployment process in Ulan Coal Mines Limited v Honeysett and others (Ulan No. 2) 1 the Full Bench said:
“...The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the role, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.” 2 (emphasis added)
[81] Further, the Full Bench said in assessing whether redeployment was possible:
“...It is an essential part of the concept of redeployment under s.389(2) that a redundant employee be placed into another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard.” 3 (emphasis added)
[82] It can be seen that some of the considerations of whether redeployment would be reasonable will necessarily be; 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. Reasonableness of redeployment may involve a consideration of what training would be required in order to perform the job.
[83] The relevant time for consideration as to redeployment is at the time of the dismissal. 4
[84] In Souter v TriCare Limited[2015] FWC 4398, Senior Deputy President Richards determined in similar circumstances, but not identical to the matter before me, that the employer was not required to dismiss a temporary employee in order to redeploy a redundant employee. The relevant parts of the decision are below:
“[57] The employer held the view generally that the managerial position was substantially different to the co-ordinator role performed by Ms Souter and that another employee with demonstrated managerial experience (which was consistent with the more complex skills profile required of the position) would be more suitable for redeployment to that role. As briefly mentioned above, this person was Ms Sutton, who held an existing managerial role (as Care Placements Manager) and had met with what appears to have been demonstrated success in the sales orientation she had brought to that role.
[58] Ms Souter contends, in effect, that she was better qualified than Ms Sutton to perform the managerial role in relation to sales and marketing. In so far as Ms Souter so argues, she is contending that the process of selection for redeployment was unfair or otherwise unreasonable (despite the fact that Ms Sutton was an incumbent manager with the employer).
[59] The process of selection for redeployment is not a consideration for the purposes of s.389 of the Act. The Explanatory Memorandum as set out above makes this clear:
“Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.”
[60] The argument led by Ms Souter in this regard - through her solicitor’s written submissions - is not a relevant consideration (and in any event may not succeed on merit grounds, either, given Ms Sutton’s skills profile).
[61] Ms Souter’s argument extends further than this, however. Ms Souter also contends that a new position - Sales and Marketing Assistant - was created as a part of the restructure, though only upon her departure.
[62] Ms Souter contends that this was a role that she could have performed and was well within her range of experience and skills. This was not a position, she argues, which she was offered as an option for purposes of redeployment.
[63] As I have mentioned above, the position was for a fixed term period and was filled by a person who was currently employed in a temporary role in the employer’s enterprise. This position on the available evidence was not a new position but a re-badged position (and hence not the subject of a redeployment).
[64] Notwithstanding, the argument led on Ms Souter’s behalf assumed a redeployment action had occurred and again went to the process of selection for dismissal as opposed to redeployment. The employer took the view (assuming a redeployment had taken place) that the temporary employee as currently engaged would be better suited to perform the temporary role as Sales and Marketing Assistant, particularly given that the position was a junior position relative to Ms Souter’s previous position and was remunerated at a lower level as a consequence.
[65] The process of selection of an employee for dismissal in circumstances where an employer has a choice as to whom it will make redundant, again, is not one that is relevant to the jurisdictional objection under s.389 of the Act.
[66] Further, assuming the Sales and Marketing Assistant position was a new position to which the incumbent had been redeployed, the decision by the employer to utilise the services of an existing temporary person to perform a temporary role in the business which was largely consistent with that person’s current role (in preference to another employee employed in another position on a permanent basis) does not (absent some other telling circumstance) connote unreasonable conduct on the part of the employer.
[67] It also appears to me to be unreasonable to expect that an employer would instigate the dismissal of a person who was subject to a commercial contract for a fixed period so as to give effect to a redeployment of a permanent employee (for the balance of the fixed period). The consequences of a contractual kind (and otherwise) for the employer render the proposition untenable on a test of reasonableness.
[68] That is, even assuming the Sales and Marketing Assistant position was a new position which involved a redeployment action, the employer had reasonable grounds on which to not redeploy Ms Souter to that position. As the Explanatory Memorandum (cited above) makes clear, “there may be many reasons” why it might be reasonable for an employer not to redeploy an employee to a particular position, and this is one such reason.
[69] As I have mentioned above, the Placements Co-ordinator (Aged Care) role had been filled by an employee whose prior position had been in close alignment with the new position. There was little argument put to me that Ms Souter should have been redeployed to that position in preference. Had there been, a further issue would have arisen as to the relevance of the redundancy selection process for the purpose of a consideration under s.389 of the Act.”
[85] In the matter before me I find that Ms Read was engaged by Comdain through Hays Recruitment to perform work as required. She was successfully fulfilling the role of Project Administrator on the APA contract. She was suitably qualified, having performed a similar role for a competitor of Comdain for approximately 5.5 years.
[86] On analysis of Ms Baines’ duties as a Receptionist, and the duties within the Project Administrator role, there is a stark gap. Ms Baines explained that with some time and training she would be able to satisfactorily perform the role of Project Administrator. Mr Sheridan’s evidence is that that training would have taken between 12 – 18 months. Regrettably, Ms Baines is unable to see past the apparent unfairness she feels in not being considered for the role, and objectively understand that she did not possess the skills required of a Project Administrator.
[87] I accept Mr Sheridan’s evidence that the Project Administrator role is not simply a matter of ringing up and ordering pipes. There comes with the role certain knowledge of material, appropriate pricing, and the capacity to meet the client’s requirements approximately 12 - 15 times per day.
[88] There seems to be, quite rightly, no criticism of Ms Baines’ capacity and conduct in the Receptionist role; her duties were satisfactorily performed. She was not, however, adequately skilled or trained to perform the Project Administrator role.
[89] I find, nevertheless, that the role was not available when the decision was made to make the Receptionist role redundant. Ms Baines’ was not entitled to stake the role as hers; Ms Read was in the role, and it matters not that she was employed by Hays Recruitment or Comdain. I do not accept that there has been any contrived conduct surrounding the engagement of Ms Read. I accept Comdain’s evidence that she is suitably skilled and experienced and the role was filled when the decision was made in late November 2018 to make the Receptionist role redundant.
[90] In answering questions from me relevant to her position if Ms Read had been directly employed by Comdain, Ms Baines has effectively determined the matter. If Ms Read had been directly employed by Comdain and not Hays Recruitment, Ms Baines would not have brought her application.
[91] If any temporary employee or labour hire employee was engaged in a very slim temporal context to an announcement of redundancy, it would, in my view, give rise to a concern and allow for an examination of whether redeployment should include such temporary placement, if it was purportedly contrived. In the present circumstances, however, I am satisfied that Ms Read had been performing the APA Project Administrator role for approximately two months prior to the definite decision to make the Receptionist role redundant. There is no basis to find that Ms Baines should have been appointed to the role in September 2018, nor that she should have been placed into the role in early December 2018 upon her role being made redundant.
[92] Mr Sheridan’s evidence on the issue of a tender document nominating Ms Read as a key person was most unsatisfactory as it simply was not true. If he did not know how the APA contract was secured in answering questions during the hearing, he should have simply said that he did not know, instead of fabricating a story of a tender having been completed.
[93] I consider that it would not have been reasonable in the circumstances for Ms Baines to be redeployed within Comdain’s enterprise or the enterprise of one of Comdain’s associated entities.
Conclusion
[94] I have determined that pursuant to s.389(1)(a) of the Act, Ms Baines’ position was no longer required to be performed by anyone as a result of changes in the operational requirements of Comdain’s enterprise.
[95] I have determined that pursuant to s.389(1)(b) of the Act, I have determined that Comdain complied with its obligation under the Award to consult about redundancy.
[96] I have determined that pursuant to s.389(2) of the Act it would not have been reasonable in the circumstances for Ms Baines to be redeployed within Comdain’s enterprise or the enterprise of one of Comdain’s associated entities.
[97] Having considered all of the facts and circumstances of this matter, I have determined that Ms Baines’ dismissal on 4 December 2018 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.
[98] I Order accordingly.
COMMISSIONER
Appearances:
Ms Catherine Baines, Applicant;
Mr Jamie O’Brien, Senior Legal Counsel. Service Stream Limited, for the Respondent
Ms Eva Khoury, General Manager – People and Culture, Comdain, for the Respondent
Mr Phil Sheridan, State Manager – Queensland, Comdain, for the Respondent
Hearing details:
Brisbane, 1 April 2019
Printed by authority of the Commonwealth Government Printer
<PR707336>
1 [2010] FWAFB 7578.
2 Ibid at [28].
3 Ibid at [34].
4 Ibid at [28].
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