Ms Julija Kitanovski v University of Newcastle
[2016] FWC 531
•27 JANUARY 2016
| [2016] FWC 531 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Julija Kitanovski
v
University of Newcastle
(U2015/6195)
COMMISSIONER SAUNDERS | NEWCASTLE, 27 JANUARY 2016 |
Application for relief from unfair dismissal.
[1] Ms Kitanovski was employed by the University of Newcastle (University) from 7 April 1992 until 10 June 2015, at which time she was dismissed on the ground of redundancy. Ms Kitanovski alleges that the termination of her employment was harsh, unjust or unreasonable.
Agreed matters
[2] It is not in contest and I am satisfied on the evidence that:
(a) Ms Kitanovski is a person protected from unfair dismissal because, at the time of her dismissal, she had completed a period of employment with the University of at least the minimum employment period and the University of Newcastle Professional Staff Enterprise Agreement 2014 (Enterprise Agreement) applied to Ms Kitanovski in relation to her employment with the University (s.382 of the Fair Work Act 2009 (Cth) (Act));
(b) Ms Kitanovski was dismissed by the University (s.385(a) of the Act);
(c) the University was not a “small business employer” as defined in section 23 of the Act, so that the Small Business Fair Dismissal Code was inapplicable (s.385(c) of the Act);
(d) Ms Kitanovski’s unfair dismissal application (Application) was made within the period required by section 394(2) of the Act;
(e) the University no longer required Ms Kitanovski’s job to be performed by anyone because of changes in the operational requirements of the University’s enterprise (s.389(1)(a) of the Act); and
(f) the University complied with its obligations under the Enterprise Agreement to consult with Ms Kitanovski about the redundancy (s.389(1)(b) of the Act); and
(g) it would not have been reasonable in all the circumstances for Ms Kitanovski to be redeployed within the enterprise of an associated entity of the University (s.389(2)(b) of the Act). That is because there were no positions, jobs or other work within the enterprise of an associated entity of the University to which it would have been reasonable in all the circumstances to redeploy Ms Kitanovski.
Issues in dispute
[3] The issues in dispute in these proceedings are as follows:
(a) whether it would have been reasonable in all the circumstances for Ms Kitanovski to be redeployed within the University’s enterprise (s.389(2)(a) of the Act). If not, Ms Kitanovski’s dismissal was a case of genuine redundancy within the meaning of section 389 of the Act and she could not have been unfairly dismissed (s.385(d) of the Act); and
(b) if I find that it would have been reasonable in all the circumstances for Ms Kitanovski to be redeployed within the University’s enterprise, then Ms Kitanovski’s dismissal was not a case of genuine redundancy within the meaning of section 389 of the Act and it will be necessary to determine whether the dismissal was harsh, unjust or unreasonable (s.385(b) of the Act).
[4] I must decide whether Ms Kitanovski’s dismissal was a case of genuine redundancy within the meaning of section 389 of the Act before I consider the merits of the Application (s.396 of the Act).
Witnesses
[5] Ms Kitanovski, her husband, and Ms Jann Jeffries, Industrial Officer of the Public Service Association (PSA) and Commonwealth Public Sector Union, gave evidence on behalf of Ms Kitanovski.
[6] The following employees of the University gave evidence on behalf of the University:
(a) Ms Lisa Fairlie, Manager, Recruitment and Support Services;
(b) Mr Paul Munro, Associate Director, Employee Relations;
(c) Ms Bree Slater, Senior Manager, Admissions;
(d) Ms Kylie Ebert, Assistant Director, Service Improvement Office;
(e) Ms Dayana Giraldo, Recruitment Specialist;
(f) Ms Angelie Churchill, Team Leader, Student Hubs and Enquiries;
(g) Ms Lisa Tremble, Domestic Admissions Co-ordinator – Admissions, Credit and Scholarships;
(h) Mr Owen Jackson, Executive Officer, School of Humanities and Social Sciences; and
(i) Ms Susanne Butterworth, School Executive Officer, School of Creative Arts.
Genuine redundancy - redeployment
Applicable legal principles
[7] The word “redeployed” in section 389(2) of the Act should be given its ordinary and natural meaning, which is to “transfer to another job, task or function”. 1
[8] For the purposes of section 389(2) of the Act 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 be an appropriate evidentiary basis for such a finding. 2
[9] If an employer wishes to rely on the “genuine redundancy” exclusion in section 389 of the Act, then it would ordinarily be expected to adduce evidence, on the question of redeployment, as to 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 employee. Such evidence would usually include the steps taken by the employer to identify other jobs, positions or work which could be performed by the dismissed employee. 3
[10] Whether it would have been reasonable in all the circumstances for the person to be redeployed directs attention to the circumstances which pertained when the person was dismissed. 4 However, the circumstances leading up to the time the employee was dismissed may, in particular cases (such as where there has been a redeployment period for an employee prior to their dismissal), be relevant to a determination of whether it would have been reasonable in all the circumstances for the employee to have been redeployed.5
[11] In determining whether redeployment was reasonable a number of matters may be relevant, including:
(a) whether there exists a job or position or other work to which the employee can be redeployed; 6
(b) the nature of any available position; 7
(c) qualifications required to perform the job; 8
(d) the employee’s skills, qualifications and experience. The employee should have the skills and competence required to perform the role to the required standard either immediately or within a reasonable period of retraining; 9 and
(e) the location of the job in relation to the employee’s residence and the remuneration which is offered. 10
[13] It is important, however, to appreciate that, because there is a requirement to assess the reasonableness of redeployment “in all the circumstances”, it is not possible to establish binding rules concerning the application of section 389(2) of the Act in all cases irrespective of the circumstances of each particular case. 12
Relevant terms of the Enterprise Agreement
[14] Clause 20.2(c) of the Enterprise Agreement states that “options such as … redeployment … will be considered, wherever possible, to avert or minimise potential redundancy”.
[15] Clause 22 of the Enterprise Agreement sets out important rights, obligations and procedures that apply in the event the University decides a position is no longer required. Clause 73 of the Enterprise Agreement deals with the Inquiry Officer procedure referred to in clause 22.2.8. A copy of clauses 22 and 73 of the Enterprise Agreement is set out in Annexure A to this decision.
[16] Clauses 22 and 73 of the Enterprise Agreement are part of the “circumstances” to which I must have regard in determining whether or not it would have been reasonable for Ms Kitanovski to be redeployed by the University.
Relevant facts
[17] During her 23 years as an employee of the University, Ms Kitanovski worked in a range of administrative positions, at several Higher Education Worker (HEW) levels, in various areas of the University’s operations, including in the Scholarships and Admissions divisions, which are now part of what is known as UniAccess. 13 Ms Kitanovski had been at HEW level 4 since about 1994, save for a period of about 16 months in 2006/7 when she worked in a position at a HEW level 5.14
[18] Ms Kitanovski was not the subject of any written warnings or formal disciplinary process at any time during her 23 year career with the University. However, during the time that she was supervised by Mr Marty Mag Uidhir 15, Senior Manager Student Advice and Information, he spoke to her on a number of occasions about deficiencies in her performance and her skill levels. Mr Mag Uidhir did not raise these issues through a formal disciplinary or performance process because he formed the view that to do so would not “have been of any benefit to the institution or to Julija and it wouldn’t have helped her improve her performance and certainly wouldn’t have helped her well-being”.16 When Mr Mag Uidhir did speak to Ms Kitanovski about her performance, “she would pull her socks up for a period, but it was typically short lived”.17
[19] The University restructured its Academic division in 2014. The rationale for the restructure was explained in the following way in a Proposal for Change Paper – Academic Division: 18
“… review the alignment of all organisational areas within the University that support the provision of services to students to ensure high quality services for all students appropriate for their study location and the mode of delivery of their education…
The proposed establishment of UON Students is seen as an opportunity to fundamentally transform the way in which services are delivered to students and staff at the University of Newcastle. As such, the proposed structural changes will be underpinned by a number of significant changes to the way in which work is performed.”
[20] About 168 full-time staff of the University were affected by the restructure.
[21] As a consequence of the restructure, Ms Kitanovski’s job 19 was made redundant and, on 9 December 2014, she was declared a “detached” employee. Ms Kitanovski was informed of this decision on 10 December 2014.
[22] On 15 December 2014, Ms Kitanovski informed the University in writing that she had elected to seek redeployment and remain as a “detached” employee under the Enterprise Agreement for a period of up to 26 weeks.
[23] Ms Kitanovski was one of about 19 employees who became a “detached” employee following the restructure in late 2014. About 13 of the detached employees elected to seek redeployment and seven of them were in fact redeployed. The balance were retrenched or voluntarily separated during the redeployment period.
[24] On 17 December 2014, the University informed Ms Kitanovski that she would initially be placed in the Admissions team in UniAccess during her redeployment period. The University also offered Ms Kitanovski a secondment to a position in Infrastructure Facilities Services during her redeployment period, but this did not prove possible because it was a full-time position which did not suit Ms Kitanovski at the time. 20
[25] On 16 January 2015, Ms Kitanovski received an email from Ms Bree Slater, Senior Manager, Admissions, confirming that Ms Kitanovski would be working in Admissions and that she would be providing assistance with admissions (including undergraduate, postgraduate, internal transfers etc), answering emails and phone calls and assisting with credit and scholarships data entry tasks. Ms Kitanovski commenced those duties on 19 January 2015.
[26] Ms Slater was the Senior Manager responsible for the Admissions team in which Ms Kitanovski worked. Ms Kitanovski was supervised by Ms Slater during her period of redeployment in the Admissions team.
[27] During the period of almost six months that Ms Kitanovski worked in the Admissions team in 2015, she received on-the-job training in relation to each aspect of the work she undertook in that team. In addition, Ms Kitanovski attended the following formal training courses during her redeployment period:
(a) Tech 1 finance course; 21 and
(b) Trim electronic filing course. 22
[29] Ms Slater invited Ms Kitanovski to attend her “team retreat” during the redeployment period. Ms Kitanovski did not attend that retreat because it was held on one of Ms Kitanovski’s shorter work days. Ms Kitanovski was not invited to attend a forum for Student Central staff during her redeployment period because only ongoing permanent employees were invited to that forum.
[30] Ms Kitanovski received training from the University in relation to interview techniques and job applications. 24 She was also given constructive feedback in relation to (a) her performance at an interview in connection with the restructure that took place in late 201425 and (b) some of the written applications she prepared for positions during her redeployment period.26
[31] The Human Resources team at the University provided assistance to Ms Kitanovski to identify some positions for which she may wish to exercise her right of preference during her redeployment period. 27 In respect of other positions, Ms Kitanovski identified the available positions of interest to her and informed the Human Resources team at the University of any decision by her to exercise her right of preference in relation to those positions.
[32] Ms Kitanovski exercised her right of preference as a “detached” employee for about 12 positions during her 26 week redeployment period. Once Ms Kitanovski exercised her right of preference for an available position, one of the Human Resources team at the University provided written guidance and directions to the Selection Committee for that position as to the way in which they were required to consider Ms Kitanovski’s suitability for the position under the Enterprise Agreement. The process followed by each Selection Committee was to assess Ms Kitanovski’s application for the position and, on the basis of her application, decide whether to grant Ms Kitanovski an interview for the position. In all save for one of the 12 positions in respect of which Ms Kitanovski expressed her right of preference during her redeployment period she was granted an interview. Following the interview, the Selection Committee decided whether or not to contact one or more of Ms Kitanovski’s referees. In the result, I am satisfied on the evidence that the University did not, as was contended for by Ms Kitanovksi, simply “go through the motions” in relation to her applications for alternative positions. The University genuinely considered Ms Kitanovski for each of the positions in respect of which she expressed her right of preference during her redeployment period against the selection criteria in the written position descriptions for the positions, but decided not to redeploy her to any of them or any other position. Ms Kitanovski’s expression of interest for each of these positions was considered prior to, and separate from, any external applicants for the positions or any internal applicants who were not “detached” employees. Accordingly, Ms Kitanovski was not required to compete with external applicants or non-detached internal applicants for positions during her redeployment period.
[33] On 10 June 2015, Ms Kitanovski submitted a request that the decision not to redeploy her to the position of Student Services Assistant, Admissions (HEW Level 4) (Position Number (PN) 2726) be reviewed pursuant to the Inquiry Officer procedure under clause 73 of the Enterprise Agreement.
[34] Ms Kitanovski sought an extension of her redeployment period until the review process was finalised. The University declined to grant such an extension. As a consequence, Ms Kitanovski’s employment with the University came to an end on 10 June 2015 and she was paid her redundancy and other entitlements in accordance with the terms of the Enterprise Agreement.
[35] By email dated 28 July 2015, Ms Kitanovski was informed of the outcome of the Inquiry Officer procedure invoked by her. In particular, Mr Nat McGregor, Chief Operating Officer of the University, “determined that the decision of the selection committee [deciding not to offer the position to Ms Kitanovski] should be upheld”. 28
[36] In addition to her full-time employment at the University, Ms Kitanovski worked on a casual basis from time to time at the University’s Conservatorium of Music, undertaking bar work, ticket sales and other administrative duties. Ms Kitanovski has continued to undertake casual work at the Conservatorium of Music following the termination of her full-time employment at the University.
Consequences of electing to become a “detached” staff member
[37] Ms Kitanovski’s decision to elect to become a “detached” staff member under clause 22.1 of the Enterprise Agreement resulted in a number of obligations being imposed on the University, including:
(a) an obligation on the University to consider redeployment for Ms Kitanovski, wherever possible, to avert or minimise potential redundancy (clause 20.2(c) of the Enterprise Agreement);
(b) an obligation on the University to provide Ms Kitanovski with support as described in clause 22.2 of the Enterprise Agreement during her period of up to 26 weeks as a “detached” employee (clause 22.1.2(ii) of the Enterprise Agreement);
(c) an obligation on the University to give Ms Kitanovski preference of appointment to suitable alternative positions within the University where vacancies exist or are expected to exist in a reasonable period of time (clause 22.2.1 of the Enterprise Agreement);
(d) as to the nature of the “preference of appointment” which the University must provide under clause 22 of the Enterprise Agreement, it “will include employment and/or training and development for positions at their classification level and within the ambit of their skills and experience” (clause 22.2.1 of the Enterprise Agreement). The use of the word “include” in this context suggests that “preference of appointment” may involve assisting the “detached” employee to be appointed to a suitable alternative position in a way different from the two methods of “preference” expressly referred to in clause 22.2.1, namely:
(i) giving preference by way of “employment … for positions”. In my view, this means placing the “detached” employee into another job “at their classification level and within the ambit of the skills and experience”; and/or
(ii) giving preference by providing “training and development for positions”. This is obviously a lesser form of “preference” than providing “employment … for positions”, but it is directed at achieving, and may in fact achieve, the same objective.
(e) an obligation on the University, wherever possible, to endeavour to redeploy the “detached” employee into a position equal to the employee’s substantive position at the time they were declared “detached” (clause 22.2.3 of the Enterprise Agreement);
(f) an obligation on the University to “allocate suitable temporary work to the detached staff member” (clause 22.2.4 of the Enterprise Agreement);
(g) where additional skills are required by the “detached” employee, the University must, during the redeployment period of up to 26 weeks, provide the employee with training and development, subject to approval by the Director, People and Workforce Strategy (clause 22.2.6 of the Enterprise Agreement);
(h) Human Resources Services must, wherever practical, provide the “detached” employee with assistance (clause 22.2.6 of the Enterprise Agreement);
(i) a Selection Committee must determine the suitability of any “detached” employee who has chosen to exercise the right of preference of employment for a particular position on the basis of fair and objective criteria (clause 22.2.7 of the Enterprise Agreement);
(j) in respect of each position for which a “detached” employee has chosen to exercise a right of preference of employment, the Selection Committee must recommend one of the following three options (clause 22.2.7 of the Enterprise Agreement):
(i) first, that the position be offered to the employee, potentially on the basis that the employee be given three months appropriate training to acquire skills for the position;
(ii) secondly, redeployment for a trial period of three months, with training where the employee lacks relevant and related experience in a similar work field; or
(iii) thirdly, that the employee is not suitable for redeployment to the available position.
Compliance with clause 22.2 of the Enterprise Agreement
[38] I am satisfied that:
(a) the University considered redeployment for Ms Kitanovski, wherever possible, to avert or minimise potential redundancy (clause 20.2(c) of the Enterprise Agreement), for the reasons set out in paragraphs [24] to [36] above;
(b) the University endeavoured, wherever possible, to redeploy Ms Kitanovski into a position equal to her substantive position at the time she was declared detached (clause 22.2.3 of the Enterprise Agreement), for the reasons set out in paragraphs [24] to [36] above;
(c) the University allocated Ms Kitanovski suitable temporary work during her redeployment period (clause 22.2.4 of the Enterprise Agreement), for the reasons set out in paragraphs [24] to [26] above;
(d) the University provided Ms Kitanovski with appropriate “training and development” during her redeployment period (clauses 22.2.1 and 22.2.6 of the Enterprise Agreement), for the reasons set out in paragraphs [27] to [30] above;
(e) Human Resources provided Ms Kitanovski with assistance during her redeployment period (clause 22.2.6 of the Enterprise Agreement), for the reasons set out in paragraphs [30] to [36] above;
(f) Ms Kitanovski’s suitability for the positions in respect of which she expressed her right of preference was determined on the basis of fair and objective criteria (clause 22.2.7 of the Enterprise Agreement), for the reasons set out in paragraph [32] above and paragraphs [53], [54], [91], [95] and [100] below. Ms Kitanovski criticised the University’s procedure of interviewing her to determine her suitability for positions in respect of which she expressed preference during her redeployment period. In my view, the fact that Ms Kitanovski was required to participate in an interview (prior to, and separate from, any interview of any other non-detached internal applicants or any external applicants) as part of the University’s assessment of her suitability for particular positions during the redeployment period did not, of itself, contravene any provision of the Enterprise Agreement or otherwise give rise to any particular unfairness;
(g) the University gave Ms Kitanovski preference of appointment to suitable alternative positions within the University during her redeployment period (clause 22.2.1 of the Enterprise Agreement), for the reasons set out in paragraphs [24] to [36] above;
(h) the University provided Ms Kitanovski with support as described in clause 22.2 of the Enterprise Agreement during her redeployment period (clause 22.1.2(ii) of the Enterprise Agreement), for the reasons set out in subparagraphs (a) to (g) above; and
(i) the University complied with its obligation to provide Ms Kitanovksi access to the Inquiry Officer procedure (clause 22.2.8 of the Enterprise Agreement), for the reasons set out in paragraphs [33] to [35] above. The Inquiry Officer reviewed the decision not to redeploy Ms Kitanovksi to PN2726. I am not satisfied that the Inquiry Officer erred in conducting their review of the decision. In any event, a full merits review of the decision not to redeploy Ms Kitanovksi to PN2726 has been undertaken in these proceedings.
[39] I reject Ms Kitanovksi’s submission that the University failed to comply with its obligations under clause 22 of the Enterprise Agreement by not giving adequate reasons on each occasion that it decided not to appoint Ms Kitanovski to an available position during her redeployment period. There is no requirement under clause 22 of the Enterprise Agreement for the University to give reasons for its decision not to appoint Ms Kitanovksi to a particular position. Notwithstanding the absence of such an obligation, the University did provide Ms Kitanovski with constructive feedback in respect of its decision not to appoint her to a number of the positions for which she expressed preference during her redeployment period.
Ms Kitanovski’s case in relation to redeployment to particular positions
[40] At the commencement of the hearing Mr Burns, solicitor, who appeared with permission for Ms Kitanovski, informed the Commission that Ms Kitanovski’s case was that it would have been reasonable in all the circumstances for her to be redeployed to any of the 12 positions in respect of which she exercised her right of preference as a “detached” employee during her 26 week redeployment period. As a consequence, evidence was adduced in relation to each of those positions and the reasons the University did not redeploy Ms Kitanovski to any of those positions.
[41] In final submissions, Mr Burns narrowed the scope of Ms Kitanovski’s case and submitted that it would have been reasonable in all the circumstances for her to be redeployed to any of the following four of the 12 positions in respect of which she exercised her right of preference as a “detached” employee during her 26 week redeployment period:
(a) Student Services Assistant, Admissions (HEW Level 4) (Position Number (PN) 2726);
(b) Communications Assistant (HEW Level 4) (PN2657);
(c) Administrative Assistant, School of Psychology (HEW Level 4) (PN2727); or
(d) Administrative Assistant, Pro Vice Chancellor’s Units, Faculty of Science and Information Technology (HEW Level 4) (PN2729).
[42] Because of the way in which Ms Kitanovski’s case was ultimately narrowed in final submissions by Mr Burns, it is not necessary for me to make any findings in relation to the other eight positions in respect of which she exercised her right of preference as a “detached” employee during her 26 week redeployment period. Ms Kitanovksi withdrew her contentions that it would have been reasonable in all the circumstances for her to be redeployed to any of the other eight positions in respect of which she exercised her right of preference.
Student Services Assistant, Admissions (HEW Level 4) (PN2726)
[43] Of all the positions which were or became vacant during Ms Kitanovski’s redeployment period, she believed she was best suited to PN2726. The majority of the evidence adduced at the hearing related to this position.
[44] PN2726 was not vacant when Ms Kitanovski was placed in the Admissions team on 19 January 2015 as a “detached” employee. At that time PN2726 was held by Mr Elijah Frost, who left the position on 17 April 2015 when he took up a HEW 5 position in the Student Advice and Information Team. PN2726 reports directly to Ms Slater.
[45] Ms Kitanovski sent an email to Ms Slater on 4 May 2015 in which she stated (among other things):
“… Can I ask when the vacant HEW 4 in our team will be advertised or if there is opportunity for me to fill this position, even as contract?
Unfortunately for me I don’t interview well (as you would know) and the current stress I’m under doesn’t help, but I am more than capable of any work or task that is handed to me and enjoy working within this team.
I know I could do the HEW 4 position and move around to support staff members and administrative tasks in the office for Scholarships, Internal Transfers, Credit Applications, Admissions email and phone enquiries, and the finance side of Scholarships and Prizes.
Could we consider a contract or ongoing position within UniAccess? I’d be happy for you to tell me what areas I can improve in so I can prove to you and the Team that I am the best person for the HEW 4 position.”
[46] By email dated 5 May 2015, Ms Slater responded to Ms Kitanovski in the following way:
“The HEW 4 position will be advertised by the end of this week hopefully. We will recruit for the position by the end of the month and you’re welcome to apply for the position. The timing of it all means though that your current redeployment situation stands and I can’t put you on a contract for the last month of that redeployment.
I know that the situation you are in is stressful however I need to make sure appropriate processes are followed and that includes a competitive recruitment process. I’m happy to have a chat provide some feedback to consider if you’d like to pop an appointment in our calendars.”
[47] Ms Kitanovski did not seek any feedback from Ms Slater.
[48] Ms Slater’s reference to “a competitive recruitment process” in her email to Ms Kitanovski dated 5 May 2015 reflected the fact that Ms Kitanovski may have had to compete with other detached employees if any of them also expressed preference for PN2726. Ms Slater could not simply place Ms Kitanovski into PN2726. The process required by the Enterprise Agreement necessitated detached employees being given preference of appointment for available positions and a Selection Committee determining the suitability of any detached employee for a particular position on the basis of fair and objective criteria.
[49] On 18 May 2015, Ms Slater sent an email to a number of employees, including Ms Kitanovski, in which she gave the following “staffing update”:
“1. The HEW 4 position will be online later today and will remain open until Sunday midnight. Recruitment will occur when Lisa returns.
2. Brock Johnston will be joining us from Wednesday this week, working three days a week, to help in the HEW 4 role until we have recruited to that position. He will be working Tuesday, Wednesday and Thursday and will be at the desk vacated by Elijah. Brock has previously worked at the Forum on campus.”
[50] Mr Johnston was employed on 20 May 2015 on a 0.5 fixed-term contract to work in PN2726 on a temporary basis, pending recruitment for PN2726. Mr Johnston undertook work mostly in the credit aspect of PN2726 during his 0.5 fixed-term contract. Mr Johnston was ultimately the successful applicant for PN2726. He was appointed to PN2726 in August 2015.
[51] Ms Slater employed Mr Johnston on a temporary basis in PN2726 because she needed an additional person to work in the Admissions team until a permanent employee was appointed to PN2726. Ms Kitanovski was not appointed on a temporary basis to PN2726 because she was already undertaking work that needed to be done in the Admissions team. Further, the work that Ms Kitanovski was doing in the Admissions team included some of the duties of PN2726. 29
[52] On 19 May 2015, PN2726 was advertised both internally and externally. The advertisement described PN2726 in the following way: 30
“Seeking an energetic, customer orientated individual to join an experienced team within the Admissions group. This is a FT role based in Callaghan.
…
A great opportunity is available for a Student Services Assistant to work within Admissions at UON Students to ensure timely and effective customer – focused service delivery as well as efficient administration processes. These activities include UAC admissions, direct admissions, credit and scholarships.
The successful candidate will bring excellent organisational and time management skills along with demonstrated experience and expertise in the provision of quality student administrative services. You will have excellent communication skills, proven initiative and strong organisational and time management skills.
This is a full-time, continuing role based at Callaghan campus.”
[53] The essential selection criteria for PN2726 were as follows:
(a) Completion of an associate diploma level qualification with relevant work experience; or a certificate level qualification with post–certificate relevant work experience; or an equivalent combination of professional administrative experience and education/training;
(b) Demonstrated customer service and administrative skills including the ability to prioritise multiple tasks, meet deadlines and maintain attention to detail;
(c) Strong interpersonal, written and communication skills including experience in engaging effectively with a diverse audience;
(d) Ability to implement procedures, provide advice consistent with University policy and resolve problems for students and staff;
(e) Demonstrated computer literacy with ability to maintain data integrity and willingness to embrace new technologies; and
(f) Knowledge of, and experience in, adhering to workplace policies and procedures in the areas of work health safety, equity, diversity and promoting a respectful workplace culture.
[54] In my view, the essential selection criteria for PN2726 were fair and objective in accordance with clause 22.2.7 of the Enterprise Agreement.
[55] The responsibilities and typical activities for PN2726 are as follows: 31
Area of Accountability | Core Responsibilities & Typical Activities | Measures of Performance |
Credit | Perform high volume administrative aspects of the Admissions Team processes | Accuracy of data entry |
Admissions | Provide advice to potential applicants on basic admissions processes via phone, email and face-to-face Participate in major events and activities related to promotion and recruitment, enrolments and graduation ceremonies as required | Excellent customer service Satisfactory feedback from customers |
General customer service & advice | Assist in the delivery of administrative processes across admissions, scholarships and credit Provide support to team members Prepare correspondence and relevant information to advise students on key issues using approved templates Any other tasks and activities appropriate for the HEW level as directed by the supervisor | Accuracy of advice Excellent stakeholder feedback |
[56] On 24 May 2005, Ms Kitanovski submitted her resume and application and exercised her right of preference of employment for PN2726. Ms Kitanovski was the only “detached” employee who expressed a right of preference for PN2726. There were 179 other applicants for PN2726.
[57] On 27 May 2015, Ms Kitanovski contacted her union (the PSA) to complain that the University had advertised the vacancy for PN2726 externally. The PSA corresponded with the University about this issue. Mr Paul Munro responded to the PSA in the following terms:
“…1. Your member, Ms Kitanovski, has applied for the position of Student Services Assistant and has expressed preference.
2. There may be other members of staff who have preference who also applied for the position. We are currently checking these details.
3. Any members of staff who are detached and have preference will be interviewed first, taking into account the provisions of Clause 22.2.7.
4. Should this process find a successful applicant then the recruitment process for this position will cease.”
[58] The recruitment process did cease, so that Ms Kitanovski’s expression of preference for PN2726 could be considered prior to the applications of the other (non-detached) internal candidates and the external candidates. It was only after the Selection Committee for PN2726 decided that Ms Kitanovski was not appointable to the position that the other (internal and external) candidates were considered for the position. It follows that Ms Kitanovski was not involved in a competitive selection process with other (internal or external) candidates for PN2726.
[59] Ms Slater was the Chair of the Selection Committee for PN2726. Ms Slater chose her Team Leader, Ms Lisa Tremble, and Mr Owen Jackson, Executive Officer for the School of Humanities and Social Sciences, as the other panel members for the Selection Committee.
[60] Ms Slater gave the following evidence in relation to the written application submitted by Ms Kitanovski for PN2726:
(a) the application was well formatted and provided a level of detail that was acceptable;
(b) many of the examples provided by Ms Kitanovski in her application related to positions held by Ms Kitanovski prior to her working in the Admissions team and were “perhaps less relevant that I would have expected from a staff member who had been within the Admissions team for six months”;
(c) the application addressed each of the selection criteria for PN2726;
(d) the application was appropriate for a HEW 4. However, in comparison to other HEW 4 applications received by Ms Slater “for previous and subsequent roles within my team, the application was on the weaker side”; and
(e) Ms Slater decided that the selection committee would interview Ms Kitanovski for PN2726 in accordance with clause 22.2.7 of the Enterprise Agreement because the written application did address the selection criteria “in spite of some weak areas”.
[61] Ms Tremble assessed Ms Kitanovski’s written application as “mediocre. It was very generic and I was surprised that she didn’t refer specifically to any experience she had recently accumulated within our team, e.g. ‘I can do XX task’.” 32
[62] Mr Jackson did not consider Ms Kitanovski’s written application “to be particularly strong, but it addressed the relevant criteria, so we thought it warranted an interview”. 33
[63] Ms Slater and the other members of the Selection Committee formulated the following questions to put to Ms Kitanovski at her interview for PN2726:
(a) Tell us about what you think you can bring to this role that other applicants might not?
(b) Can you provide us with an example of a time you have contributed to a team, and explain what qualities you bring to a team?
(c) How do you display exemplary customer service? Can you provide an example to demonstrate this?
(d) We are looking for someone who can work in a high volume area that has competing deadlines. What techniques would you use to ensure you were meeting expectations and completing all tasks accurately and properly?
(e) Have you ever accomplished something in a recent role that you didn’t think you could? Describe the situation and/or task and explain if you would change anything.
(f) Any questions for us?
[64] These questions were put to Ms Kitanovski in her interview for PN2726. Ms Kitanovski’s interview took about 15 minutes, notwithstanding the fact that the Selection Committee had put aside half an hour for the interview. The interview took less time than expected because, according to Ms Tremble:
“…there was not much depth to Ms Kitanovski’s answers to the interview questions. … Ms Kitanovski’s answers were short, lacked detail, and did not address the questions clearly. She did not provide specific examples relating back to the criteria in each question. The answers were disjointed, and I thought they were poor, particularly given her length of experience at the University.” 34
[65] Ms Tremble was not “impressed by Ms Kitanovski’s performance at interview, and I didn’t think that she demonstrated that she had met (or could meet) the requirements for the position”. 35
[66] Ms Slater gave the following evidence as to Ms Kitanovski’s performance at the interview:
(a) examples provided by Ms Kitanovski in answer to the questions were generally related to previous roles held by her at the University rather than from her time in the Admissions team and “therefore not entirely relevant”;
(b) the answers Ms Kitanovski gave were “brief without showing an understanding of the overall skill set being explored”;
(c) Ms Slater had two primary areas of concern from Ms Kitanovski’s interview answers – “team work and a high volume workload”;
(d) after the interview was over, the Selection Committee convened to discuss the answers provided by Ms Kitanovski and her overall application, at which time:
“It was agreed that the candidate’s answers were not at a HEW 4 level and did not show an understanding of the requirements of a HEW 4 level position. The examples were too basic and did not show the skills and capabilities required by this position. For example, our question relating to working in a high volume area specifically asked for an example, however Ms Kitanovski was unable to provide one. Her answer was brief and showed only a very basic understanding of some techniques. However they were not a HEW 4 standard.
The panel agreed that Ms Kitanovski was not appointable at a HEW 4 level and considered the other possibility of appointing her with development.”
[67] Mr Jackson gave the following evidence in relation to Ms Kitanovski’s performance at the interview:
“I recall that at the interview Ms Kitanovski was pleasant and amicable. She answered the Panel’s questions but she didn’t answer them well. For example, when I asked her question 3 on the list, which asked her to provide an example of a time she had contributed to a team, and the qualities she brings to a team, her answer was vague, did not define herself or the qualities she brings, but rather she stated that she had worked in a team before.
…
In answer to question 4, which asked her to provide an example of how she displays exemplary customer service, she responded to the effect that she has years of experience, without outlining any example of exemplary service. She appeared to assume that the Panel already knew what skills and tasks she had performed in her roles at the University and what skills and capabilities she has.
In response to question 5, regarding working in a high volume area with competing deadlines, Ms Kitanovski gave a very general response to the effect that she had worked in various areas of the University for long periods of time with defined responsibilities that she seemed comfortable with.
In response to question 6, which asked for an example of where she had accomplished something in a recent role that she didn’t think she could, Ms Kitanovski gave an example about service and support, but did not clearly define the activities involved, the extra steps.”
[68] The following evidence was given by the members of the Selection Committee as to a question asked by Ms Kitanovski at the end of the interview:
(a) Ms Tremble gave evidence that Ms Kitanovski said during her interview that “she had never had access to the UAC admissions system in previous roles, and asked whether she would be required to use the system”. 36 Ms Kitanovski was told that PN2726 would likely require “read-only” access for this system. Ms Tremble gave evidence that, on being informed of this information, “Ms Kitanovski appeared to be pleased, and verbally responded ‘good’. She did not sound willing or eager to be exposed to, or learn to use, new systems”;37
(b) Mr Jackson gave evidence that Ms Kitanovski said “she would be interested in using the student administration credit system (CATS). I was surprised that she was not already aware of how the system operated and/or using it frequently, given that she was already working in the Student Services area”. 38 During cross examination Mr Jackson conceded that he may be mistaken about the identity of the particular system being discussed. He accepted that Ms Kitanovski may have referred to the UAC admissions system rather than the CATS, but he was clear that, whatever system Ms Kitanovski referred to in her question, he formed the view that she was interesting in learning to use the system; and
(c) Ms Slater did not give evidence as to the actual question asked by Ms Kitanovski because she could not recall it, but said that “the panel considered that the question she asked about the possibility of needing to learn another new system showed a lack of interest or willingness in taking on new skills or knowledge and the panel agreed that this was also not an option”. 39 When pressed in relation to this issue during cross examination, Ms Slater said that she formed her view about Ms Kitanovksi’s lack of interest or willingness in taking on new skills or knowledge based on the words used by Ms Kitanovksi in her question (notwithstanding Ms Slater could not now recall the words), and the tone of the question.
[69] Ms Kitanovski agrees with Ms Tremble that she asked in the interview whether she would be required to use the UAC admissions system. 40 Ms Kitanovski says she did so because she was interested in using the system, which she says is consistent with her reply of “good” to the answer given to her question. Ms Kitanovski denies she was not willing or eager to be exposed to, or to learn, use new systems.41 Her evidence in this regard is supported by her email to Ms Slater dated 3 May 201542 in which she informed Ms Slater that she had nominated to attend five training courses during May 2015.
[70] I prefer Ms Kitanovski’s evidence to that of Ms Slater’s and Ms Tremble’s in relation to the factual controversy concerning the question Ms Kitanovski asked about training at the end of her interview for PN 2726, for the following reasons:
(a) Ms Kitanovski’s evidence that she was interested in learning to use the UAC admissions system is consistent with both Mr Jackson’s evidence and her email to Ms Slater dated 3 May 2015;
(b) Ms Tremble acknowledged that Ms Kitanovski said “good” when she was told that she would require access to the UAC admissions system. Ms Tremble interpreted the answer of “good” to be negative on the basis that when Ms Kitanovski was informed she would require access to the UAC admissions system she was told it would be on a “read only” basis. It is possible that Ms Kitanovki’s answer “good” may have referred to (i) the fact that she would have access to the UAC system if she succeeded in the obtaining the role or (ii) the fact that she would only have to look up information on the UAC admissions system (in “read only” mode), rather than enter information into the system. In light of the matters set out in subparagraph (a) above, I find, on the balance of probabilities, that Ms Tremble was mistaken when she formed the view that Ms Kitanovski was not interested in learning the UAC admissions system. It is more likely, in my view, that Ms Kitanovksi said “good” in answer to the question because she was interested in learning to use the UAC admissions system;
(c) Ms Slater was not able to recall the question asked by Ms Kitanovski and did not have a good recollection of what was said in this part of the interview; and
(d) Ms Kitanovski was not asked whether she would be interested in learning the UAC admissions system if she was redeployed to PN2726.
[71] Following the interview Ms Slater contacted two of Ms Kitanovski’s three referees. Ms Slater gave evidence to the following effect in relation to her discussions with one of Ms Kitanovski’s referees, Ms Angelie Churchill, Enquiry Centre Team Leader:
“The answers provided confirmed that Ms Kitanovski had preferences to complete her own work tasks to the detriment of team goals, although she fitted in well personally and socially with the team. They also confirmed that Ms Kitanovski tended to prioritise those tasks she liked over those needed by the team.
When asked whether she would hire Ms Kitanovski in the role again, Angelie stated ‘no’ and that Ms Kitanovski may be suited more to areas where there is not a high volume of work or where it was simple processing. This response confirmed the panel’s view that Ms Kitanovski was not appointable at a HEW 4.” 43
[72] Ms Slater also spoke to another of Ms Kitanovski’s referees, Sue Butterworth, School Executive Officer:
“Sue confirmed the details of the role Ms Kitanovski filled in her team, and that the role was at a lower level and with significantly different tasks and responsibilities. She indicated that the duties Ms Kitanovski carried out in her team were bar service and box office duties. Sue provided a positive reference.” 44
[73] Ms Butterworth was called by the University to give evidence on its behalf. She is supportive of Ms Kitanovski and her work. By way of example, Ms Butterworth is of the view that Ms Kitanovski “presents well, is well–groomed, cheerful, reliable and punctual. I have observed her in her box office role and been impressed by her calm, pleasant and unflappable approach”. 45
[74] Ms Kitanovski criticised the University for Ms Slater’s decision not to contact her third referee, Ms Amy Reeves, Scholarships Senior Advisor. Ms Reeves was not contacted on the basis that it was “inappropriate [to do so] as she was a colleague of Ms Kitanovski’s in the current team and not a direct supervisor”. 46 Ms Kitanovski’s response to this argument was to say that, if the University’s practice was to only speak to referees who directly supervise or supervised the applicant for a position, then the University should not have contacted Ms Churchill as a referee either because she gave evidence to the effect that Ms Kitanovski had never reported to her.47
[75] Ms Slater believed that Ms Churchill was Ms Kitanovski’s direct supervisor in one of her previous positions.
[76] Ms Churchill gave evidence that Ms Kitanovski worked in the team of which Ms Churchill was the Team Leader and “I have assigned day-to-day tasks to her” 48, notwithstanding that Mr Mag Uidhir was Ms Kitanovski’s supervisor during this period. Similarly, Ms Kitanovski gave evidence that: “While I agree that Marty Mag Uidhir was the Senior Manager, Angelie [Churchill] was the Team Leader who I reported to on a day-to-day basis”.49 In light of this evidence and the fact that Ms Churchill was in a good position to assess the quality of Ms Kitanovski’s work and her performance, I am of the view that it was fair and appropriate for the University to (a) contact Ms Churchill in her capacity as one of the referee’s nominated by Ms Kitanovksi and (b) not to contact Ms Reeves in her capacity as another of Ms Kitanovski’s nominated referees.
[77] Ms Kitanovski was also critical of the fact that Ms Churchill gave some negative feedback to Ms Slater during her reference check. Ms Kitanovski argued that Ms Churchill should have informed her at the time she was asked to be a referee if she intended to give a negative reference in relation to Ms Kitanovski. Although some may consider it to be fair and reasonable for a person who is asked to be a referee for a work colleague to inform the person at the time the request is made if they intend to give a wholly or partly negative reference, the University is not responsible for the fact that Ms Churchill did not do so when asked by Ms Kitanovski to be her referee. I am satisfied that Ms Churchill expressed her honest opinion about Ms Kitanovski during the reference check conducted by Ms Slater.
[78] By email dated 4 June 2015 to the other members of the Selection Committee, Ms Slater attached the “reports” from her reference checks for Ms Kitanovski and “recommend[ed] considering Julija [Ms Kitanovski] not appointable or trainable based on the interview, application and these references” for PN2726. 50 The other members of the Selection Committee agreed with Ms Slater’s recommendation.51
[79] Ms Slater also gave the following evidence in relation to the final decision reached by the Selection Committee:
“The panel considered each of the three required options under clause 22.2.7 of the EA in coming to a final decision. The written application and interview were significantly weaker than required for a HEW 4. Her answers to many of the questions and a question at the end of the interview about having to learn new systems raised serious concerns about her ability to adapt, to learn or to accept a need for development.
The panel agreed that Ms Kitanovski was not appointable at a HEW 4 nor was she capable of being developed to be at the HEW 4 level.” 52
[80] I accept the evidence given by each of Ms Slater, Ms Tremble and Mr Jackson that they considered the three alternatives set out in clause 22.2.7 of the Enterprise Agreement prior to concluding that Ms Kitanovski was not suitable for redeployment to PN2726.
[81] The Selection Committee Report in relation to Ms Kitanovski’s application for the position records the “reasons for non—suitability” as follows: 53
“Answers to the questions and examples to the answers were not of a very high standard. The examples provided did not illustrate the answers very well.
The answer to question four was not related to her current role which would have been the most relevant to the position. The answer did not show exemplary customer service or what she had done to provide exemplary customer service.”
[82] Ms Giraldo was present at the time the Selection Committee made its decision in relation to Ms Kitanovski’s application for PN2726. Ms Giraldo reminded the members of the Selection Committee to “restrict [their] discussion [about Ms Kitanovski] to the written application and interview performance.” 54 The members of the Selection Committee followed this direction.
[83] On 5 June 2015, Ms Kitanovski attended Ms Slater’s office, at which time Ms Slater said to her words to the following effect:
“I’m sorry but you did not get the job. We looked at your application and interview and it was not what we were looking for. I know you have had a long standing relationship with the University. If you want to go now, that is fine, you can go now. I’m so sorry you did not get the job.”
[84] On 9 June 2015, Ms Kitanovski complained to Ms Lisa Fairlie about the fact that she had not been offered PN2726. Ms Kitanovski said to Ms Fairlie words to the effect: “I was doing the work and the University has to place me in the position”. Ms Fairlie’s responded by saying words to the effect: “That is not the case. We have to follow a competitive process and that we get the best person in the job”.
[85] In my view, it was unfair for the University, through Ms Giraldo, to direct the members of the Selection Committee to restrict their consideration of Ms Kitanovski’s suitability for PN2726 to her written application, her performance at the interview and the feedback from the referees, and thereby ignore Ms Kitanovksi’s work, experience, training and performance in the Admissions team. There may be some utility in giving such a direction to a Selection Committee when they are considering internal and external applicants during a normal recruitment process for an available position, so as to ensure a level playing field across all applicants for the position. However, in circumstances where Ms Kitanovski’s job had been made redundant through no fault of her own and the University was obliged under the Enterprise Agreement to give her preference of appointment to suitable alternative positions in a six month redeployment period, during which time she had worked in the Admissions team and had undertaken a number of the duties of PN2726, together with training in various aspects of work in the Admissions team, it was unfair for Ms Slater, who had supervised Ms Kitanovski during her time in the Admissions team, to ignore what Ms Kitanovski had been doing for the past six months, what she had learned about the duties and responsibilities of PN2726 and the Admissions team during that period and the impact of those matters on Ms Kitanovski’s ability to undertake the duties and responsibilities of PN2726 either immediately or within a reasonable period of retraining. In circumstances where Ms Kitanovski quite properly made reference in her written application and during her interview to her experiences and work in the Admissions team during her six month redeployment period, Ms Slater could not realistically ignore her first hand knowledge of what Ms Kitanovski had in fact been doing, what she had in fact learned, and how she had in fact performed during her period of redeployment in the Admissions team.
[86] In my view, however, the unfairness associated with the direction to the Selection Committee to restrict their consideration of Ms Kitanovski’s suitability for PN2726 to her written application, her performance at the interview and the feedback from the referees is not, of itself, determinative of the question of whether it would have been reasonable in all the circumstances for Ms Kitanovksi to be redeployed to PN2726. A key factor in determining that question is whether Ms Kitanovski had the skills, experience, qualifications and training necessary to undertake the role either immediately or within a reasonable period of retraining.
[87] Ms Slater, the only member of the Selection Committee who had worked closely with Ms Kitanovski, gave evidence that her opinion as to Ms Kitanovski’s suitability for PN2726 would not have changed if she had taken into account her actual knowledge of Ms Kitanovksi’s experience and performance in the Admissions team, the training she had received in that team and what she had learned during her time in the Admissions team. I accept Ms Slater’s evidence in that regard, for the reasons set out in the following two paragraphs.
[88] Ms Slater gave the following evidence, having regard to her actual knowledge of Ms Kitanovski’s performance, experience and training in the Admissions team, in addition to her application, her performance in the interview and the reports from two of her referees, in relation to the essential selection criteria for PN2726:
(a) Ms Slater believed that Ms Kitanovski satisfied the first of the essential selection criteria, namely:
“Completion of an associate diploma level qualification with relevant work experience or a certificate level qualification with post-certificate relevant work experience or an equivalent combination of professional administrative experience in education training”
(b) As to the second of the essential selection criteria, Ms Slater was of the view that Ms Kitanovski had demonstrated customer service and administrative skills, but Ms Slater had concerns about Ms Kitanovski’s ability to prioritise multiple tasks, meeting deadlines, and maintaining attention to detail. Ms Slater did not believe that Ms Kitanovski would have been able to meet the requisite standard in relation to prioritising multiple tasks, meeting deadlines, and maintaining attention to detail with further on-the-job training because she had already received on-the-job training and encouragement in those areas and her performance had not improved; 55
(c) As to the third of the essential selection criteria, Ms Slater was of the view that Ms Kitanovski did not have strong written communication skills and that it would take a lot of training (approximately 6 months) for Ms Kitanovksi to possibly improve to the requisite standard for PN2726; 56
(d) As to the fourth of the essential selection criteria, Ms Slater was of the view that Ms Kitanovski had the knowledge and skills to provide advice consistent with University policy, but did not have the knowledge and skills to implement a number of University procedures to resolve problems for students and staff. Ms Slater was of the view that it would take about four to five months of training for Ms Kitanovksi to potentially be able to meet the requisite standard for PN2726; 57
(e) As to the fifth of the essential selection criteria, Ms Slater was of the view that Ms Kitanovski had the ability to work independently, but not as an effective team member contributing to an outstanding student experience. Given that Ms Kitanovski had been working in teams for a long time and was still, in Ms Slater’s view, unable to demonstrate her ability to work as an effective team member, Ms Slater did not believe that Ms Kitanovski could have met the requisite teamwork standard for PN2726 with training or development; 58
(f) As to the sixth of the essential selection criteria, Ms Slater was of the view that Ms Kitanovski had skills and knowledge in a number of computer systems, but she did not have the skills or knowledge to maintain data integrity. Ms Slater had concerns as to whether Ms Kitanovski would be able to meet the requisite standard of data integrity for PN2726, even if she had been provided with further training or development, given the errors Ms Slater identified in the data entry work undertaken by Ms Kitanovski. 59 Ms Slater also expressed the view that she had concerns around Ms Kitanovski’s willingness to embrace new technologies, however I do not accept that evidence on the basis of the matters set out in paragraphs [68] to [70] above; and
(g) Ms Slater believed that Ms Kitanovski satisfied the last of the essential selection criteria, namely:
“Knowledge of and experience in adhering to workplace policies and procedures in the areas of work, health, safety, equity, diversity and promoting a respectful workplace culture.”
[89] Save for the evidence as to Ms Slater’s concerns regarding Ms Kitanovksi’s willingness to embrace new technologies (which I do not accept), I accept the accuracy and reliability of the evidence given by Ms Slater concerning Ms Kitanovski’s ability to satisfy the essential selection criteria for PN2726, because (a) it was given in a careful and frank manner, (b) Ms Slater made a number of concessions about the parts of the selection criteria she believed Ms Kitanovski could undertake either immediately or with training, and (c) Ms Slater’s evidence was consistent with that given by others, including Ms Churchill and Mr Mag Uidhir, in relation to Ms Kitanovski’s skills and performance in the past.
[90] In light of the findings I have made on the basis of evidence given by Ms Slater, Ms Tremble and Mr Jackson, as summarised above, I agree with their assessment that it was not reasonable in all the circumstances to redeploy Ms Kitanovski to PN2726, even on a trial basis for three months, with training. I am satisfied that Ms Kitanovski did not have the skills and experience necessary to perform the role either immediately or within a reasonable period of retraining.
Communications Assistant (HEW Level 4) (PN2657)
[91] Ms Kitanovski expressed preference for this position in late January 2015 during her redeployment period. She had in fact been interviewed in relation to this position during the initial part of the restructure process in late 2014. Following that interview, it was determined that Ms Kitanovski was not suitable for the position on the basis that she did not have the necessary skills, experience or training to meet the essential criteria for the position. 60
[92] When Ms Kitanovski applied for this position in January 2015 during her redeployment period, Mr Mag Uidhir questioned whether she was eligible to reapply for the position, having regard to the fact that she was deemed unappointable to the position at the end of 2014. 61 Mr Mag Uidhir was informed by Human Resources that, as a detached employee, the Selection Committee had an obligation to consider if there was any possibility of bridging any skill gaps that may exist for Ms Kitanovski relation to PN2657. In the result, Ms Kitanovski was not offered PN2657, nor was she re-interviewed for the position.
[93] Because it had recently been determined that Ms Kitanovski was not suitable for PN2657 following her interview for the position in late 2014 and the Selection Committee decided not to offer her another interview for the position in 2015, I am satisfied that Ms Kitanovski did not have the skills, experience and training necessary to perform the role either immediately or within a reasonable period of retraining.
Administrative Assistant, School of Psychology (HEW Level 4) (PN2727)
[94] Ms Kitanovski expressed preference for this position on 1 June 2015. 62 Ms Giraldo instructed the Selection Committee to consider Ms Kitanovski’s application in a manner consistent with the obligations in clause 22.2.7 of the Enterprise Agreement.63
[95] The essential criteria for PN2727 are set out in the Position Description for this role. 64 In my view, they are fair and objective criteria.
[96] The Selection Committee interviewed Ms Kitanovski in relation to PN2727 and decided that she was not appointable to the position. Prior to making that decision, the Selection Committee contacted Ms Kitanovski’s referees, who made both positive and negative comments, but more negative than positive. 65
[97] The Selection Committee Report 66 included the following comments as the reasons for Ms Kitanovski’s non—suitability to PN2727:
“Julija’s task 67 was not of a high standard, the selection panel thought that there was not a lot of content for the 15 minutes allowed. The answer did not provide any explanation for taking on board the responsibility of calming the staff member down or for the order of the tasks that she chose.
Julija demonstrated that she liked to help others and that she would go above and beyond to do this. While the panel thought that this was a positive aspect, there were some concerns that Julija’s desire to help people might take her away from other important tasks in her role.
Julija’s answer to the teamwork question failed to demonstrate what teamwork meant to her beyond helping others, there was no mention of working together to achieve a goal, division of work or working to one’s strengths.
Julija’s answer to the diversity related question focused only on cultural diversity.”
[98] Having regard to the Selection Committee Report, Ms Kitanovski’s application for PN2727 and the comments made by the referees to the Selection Committee, I am satisfied that Ms Kitanovski did not have the skills, experience and training necessary to perform the essential criteria of the role either immediately or within a reasonable period of retraining.
Administrative Assistant, Pro Vice Chancellor’s Units, Faculty of Science and Information Technology (HEW Level 4) (PN2729)
[99] Ms Kitanovski expressed preference for this position on 31 May 2015. 68 Ms Giraldo instructed the Selection Committee to consider Ms Kitanovski’s application in a manner consistent with the obligations in clause 22.2.7 of the Enterprise Agreement.69
[100] The essential criteria for PN2729 are set out in the Position Description for this role. 70 In my view, they are fair and objective criteria.
[101] The Selection Committee interviewed Ms Kitanovski in relation to PN2729 and decided that she was not appointable to the position. Prior to making that decision, the Selection Committee contacted Ms Kitanovski’s referees, who made both positive and negative comments, but more negative than positive. 71
[102] The Selection Committee Report 72 included the following comments as the reasons for Ms Kitanovski’s non—suitability to PN 2729:
“The selection panel indicated that they felt that her experience was very student focused and had questions about her ability to deal with people at all levels specifically academic staff. The question about diversity was not answered.
Attention to detail question was not answered. Detail was not provided about what she would do to identify the problem and stop it from happening in the future.”
[103] Having regard to the Selection Committee Report, Ms Kitanovski’s application for PN2729 and the comments made by the referees to the Selection Committee, I agree with the Selection Committee’s conclusion that Ms Kitanovksi “should not be appointed to the role as she fails to meet the required criteria and I do not believe that the identified shortfalls can be overcome with training”. 73
Conclusion
[104] For the reasons set out above, I am satisfied that it would not have been reasonable in all the circumstances for Ms Kitanovski to be redeployed within the University’s enterprise. Given that this was the only issue in contest between the parties in relation to section 389 of the Act, I find that Ms Kitanovski’s dismissal was a case of genuine redundancy, with the result that Ms Kitanovski was not unfairly dismissed (s.385 of the Act). The Application must therefore be dismissed.
COMMISSIONER
Appearances:
Mr Michael Burns, solicitor from W. G. McNally Jones Staff Lawyers, on behalf of Ms Kitanovski;
Ms Catherine Pugsley, Workplace Relations Consultant from the Australian Higher Education Industrial Association, on behalf of the University.
Hearing details:
2016.
Newcastle:
January, 14.
2015.
Newcastle:
December, 3, 4, 14.
Annexure A – clauses 22 & 73 of the Enterprise Agreement
22.0 REDEPLOYMENT AND REDUNDANCY
22.1 Voluntary Separation
22.1.1 Where a position is no longer required the incumbent may become a detached staff member. The detached staff member will be notified in writing as soon as possible.
22.1.2 The staff member will have a period of 4 weeks from the date of the notice in Clause 22.1.1 within which to elect to do one of the following:
(i) accept a separation package, to be taken up within a period of 2 weeks, comprising:
(a) 26 weeks salary; plus
(b) 2 weeks salary for each completed year of service at the University up to a combined maximum of 52 weeks; and
(c) a 10% loading on the above combined total; and
(d) statutory entitlements; or
(ii) seek redeployment within the University and remain as a detached staff member for a period of up to 26 weeks. The date of commencement of the 26 week period is the date of notification of becoming a detached staff member. The staff member will be provided with support as described in Clause 22.2. The staff member will not be eligible for the career transition support described in Clause 22.3; or
(iii) seek employment outside the University and remain as a detached staff member for a period of up to 8 weeks. The date of commencement of the 8 week period is the date of notification of becoming a detached staff member. The staff member will be provided with support, including career transition support described in Clause 22.3.
22.1.3 If the staff member has not taken one of the options outlined in Clause 22.1.2 above they will be deemed to have chosen the option in Clause 22.1.2 (ii).
22.2 Redeployment within the University [Option in Clause 22.1.2(ii)]
22.2.1 A staff member who has elected the option in Clause 22.1.2 (ii) will have preference of appointment to suitable alternative positions within the University where vacancies exist or are expected to exist in a reasonable period of time. Preference will include employment and/or training and development for positions at their classification level and within the ambit of their skills and experience.
22.2.2 The salary of a detached staff member will be maintained during the period of redeployment.
22.2.3 Wherever possible, the University will endeavour to redeploy staff into a position equal to the staff member’s substantive position at the time they were declared detached. Where a staff member accepts redeployment to a lower level position prior to the conclusion of the redeployment period in Clause 22.1.2 (ii), they will receive salary maintenance for a period of 26 weeks from the date of detachment.
22.2.4 The University will allocate suitable temporary work to the detached staff member. Wherever possible, the staff member will continue to work at the same work value/classification level during the period of detachment/redeployment.
22.2.5 If a staff member elects to be redeployed in accordance with Clause 22.1.2 (ii), they may, at a later date elect to be made redundant at any time during the 26 week period mentioned in Clause 22.1.2 (ii) above. Should this occur they will receive a payment in accordance with Clause 22.4.1.
22.2.6 During the redeployment period of 26 weeks, the staff member will be provided with training and development where additional skills are required, subject to approval by the Director, People and Workforce Strategy, and:
(i) may take reasonable time to attend job interviews and undertake job search; and/or
(ii) may have reasonable time to attend and be provided with financial and personal counselling; and/or
(iii) be provided with assistance, wherever practical, by Human Resource Services.
22.2.7 Where a staff member has chosen to exercise the right of preference of employment for a particular position in reference to Clause 22.2.1, a Selection Committee will determine the suitability of any applicant for redeployment to the position on the basis of fair and objective criteria. The Committee will recommend one of the following options:
(i) that the position be offered to the staff member (or the preferred applicant, where more than one detached staff member applies). The Committee may decide the applicant should be given 3 months appropriate training to acquire skills for the position;
(ii) redeployment for a trial period of 3 months, with training where the applicant lacks relevant and related experience in a similar work field. The manager will review the redeployment at the end of 3 months and either confirm the appointment (with further training if deemed necessary) or, if either the manager or the staff member considers the trial is unsuccessful, discuss further options for redeployment with the staff member; and/or
(iii) that any or all of the applicants are not suitable for redeployment to the available position.
22.2.8 In relation to Clause 22.2.7 (iii), staff not successful in being redeployed to an available position will have access to the Inquiry Officer procedure - Clause 73.
…
22.4 Redundancy
22.4.1 If separation or successful redeployment has not occurred within the redeployment period, the staff member will become redundant and be provided with a redundancy package which comprises:
- (i) 26 weeks salary; plus
(ii) 2 weeks salary for each year of service completed at the University, up to a combined maximum of 52 weeks; and
(iii) statutory entitlements.
- (i) a further offer of redeployment and/or training and development; or
(ii) the immediate provision of a redundancy package as outlined in Clause 22.4.1.
22.5 Payments made under this clause will be calculated at the staff member’s substantive salary level at the date of separation.
…
PART L: REVIEW PROCESSES AND DISPUTE RESOLUTION
73.0 INQUIRY OFFICER
73.1 A staff member may make an application in writing to the appropriate Deputy-Vice Chancellor or Chief Operating Officer to review a decision in relation to:
(i) Performance Review and Development – Clause 7; or
(ii) Managing Staff Workload – Clause 8; or
(iii) Classification Structure and Review – Clause 9; or
(iv) Probation – Clause 11; or
(v) Redeployment– Clause 22.2 and 22.3; or
(vi) Intellectual Property Rights – Clause 28; or
(vii) Leave – Clauses 57 – 66 and 70.
73.2 The University will appoint an Inquiry Officer who:
- (i) is without conflict of interest;
(ii) has the capacity to undertake the inquiry within the context of the relevant University policies and processes;
(iii) will apply the principles of procedural fairness.
Prior to appointment of an Inquiry Officer, the University will consult with the relevant union about the appointment.
73.3 The Inquiry Officer will determine the procedure for conducting a review in a timely manner and will outline the procedure to the staff member. The objective of any review will be to:
(i) determine whether the relevant procedures were complied with; and
(ii) whether any procedural difficulty is fundamental; and
(iii) consider any other facts that may have had a bearing on the decision.
73.4 The Inquiry Officer will examine the application in accordance with the relevant clause of this Agreement and any other relevant policies and procedures of the University.
73.5 The Inquiry Officer may interview the applicant and make any other enquiries to assist in making a decision in relation to the application, including receiving submissions from the staff member seeking the review, and their representative or any other relevant person.
73.6 The Inquiry Officer will provide a written report to the appropriate Deputy Vice-Chancellor or Chief Operating Officer within 10 working days of the completion of the proceedings. In making a report to the appropriate Deputy Vice-Chancellor or Chief Operating Officer the Inquiry Officer will make:
(i) findings in relation to the matters specified at Clause 73.3 and provide reasons; and
(ii) comments on the process, facts or any mitigating circumstances relevant to the case and may make recommendations.
The staff member will be provided with a copy of the Inquiry Officer’s report at the same time as the report is provided to the appropriate Deputy Vice-Chancellor or Chief Operating Officer, and the staff appropriate Deputy Vice-Chancellor or Chief Operating Officer.
73.7 After considering the report(s) and the staff member’s response, the appropriate Deputy Vice-Chancellor or Chief Operating Officer will determine that:
(i) the decision is upheld; or
(ii) the decision is overturned; or
(iii) the provisions of this Agreement should be reapplied from the point at which it was found that procedural fairness did not occur; and/or
(iv) some other outcome.
2 TAFE at [36]
3 TAFE at [36]-[37]; Teterin & Ors v Resource Pacific Pty Ltd t/a Ravensworth Underground Mine[2014] FWCFB 4125 (Teterin) at [28]-[29]
4 TAFE at [24] & [35]; Ulan Coal Mines v Honeysett (2010) 199 IR 363 (Ulan Coal) at [28]
5 Bhalla v Welltech Total Water Management[2014] FWC 7565 at [55]
6 Ulan Coal at [28]
7 Ulan Coal at [28]
8 Ulan Coal at [28]
9 Ulan Coal at [28] & [34]
10 Ulan Coal at [28]
11 Ulan Coal at [34]
12 Teterin at [35]
13 Witness statement of Ms Kitanovski dated 15 September 2015 at [5]-[11]
14 HEW level 5 is more senior in the University’s classification system than HEW level 4
15 For much of the time from about March 2007 until the end of 2014
16 PN1306
17 PN1355
18 Witness statement of Paul Munro dated 11 September 2015 at attachment 1
19 HEW Level 4 Administrative Assistant in UON Enquiries
20 Witness statement of Kylie Ebert at [16]: PN972
21 PN1244
22 PN1249
23 PN1243; Exhibit A6
24 PN658
25 Witness statement of Angelie Churchill at [6] – [9]
26 PN1007 & PN1053
27 PN1041-1047
28 Witness statement of Ms Kitanovski dated 15 September 2015 at annexure JK-29
29 Witness statement of Ms Kitanovski in reply dated 6 October 2015 at [56]
30 Witness Statement of Dayana Girardo at Attachment 1
31 Ibid
32 Witness statement of Lisa Tremble at [7]
33 Witness statement of Owen Jackson at [6]
34 Witness statement of Lisa Tremble at [8] & [10]
35 Witness statement of Lisa Tremble at [12]
36 Witness statement of Lisa Tremble at [11]
37 Witness statement of Lisa Tremble at [11]
38 Witness statement of Owen Jackson at [12]
39 Witness statement of Bree Slater at [11]
40 Witness statement of Ms Kitanovski in reply dated 6 October 2015 at [9]
41 Witness statement of Ms Kitanovski in reply dated 6 October 2015 at [9]
42 Exhibit A6
43 Witness statement of Bree Slater at [15]-[16]
44 Witness statement of Bree Slater at [17]
45 Witness statement of Suzanne Butterworth at [6]
46 Witness statement of Bree Slater at [13]
47 Witness statement of Angelie Churchill at [4]
48 Witness statement of Angelie Churchill at [4]
49 Reply witness statement of Ms Kitanovski at [18]
50 Witness statement of Bree Slater at Attachment 6
51 Witness statement of Lisa Tremble at [13]
52 Witness statement of Bree Slater at [19]-[20]
53 Witness statement of Bree Slater at Attachment 7
54 Witness statement of Jann Jeffries dated 15 September 2015 at p26
55 PN2812-2823
56 PN2825-2830
57 PN2831-2834
58 PN2836-2839
59 PN2841-2844
60 Witness statement of Lisa Fairlie at attachment A
61 Witness statement of Lisa Fairlie at attachment A
62 Witness statement of Lisa Fairlie at attachment G
63 Witness statement of Lisa Fairlie at attachment G
64 Witness statement of Lisa Fairlie at attachment G
65 Witness statement of Lisa Fairlie at attachment G
66 Exhibit R1
67 As part of her assessment for this position, Ms Kitanovksi was asked to put a variety of tasks in order of priority and explain how she would achieve completion of the various tasks (Witness statement of Lisa Fairlie at attachment G (p26); PN1127)
68 Witness statement of Lisa Fairlie at attachment F
69 Witness statement of Lisa Fairlie at attachment F
70 Witness statement of Lisa Fairlie at attachment F
71 Witness statement of Lisa Fairlie at attachment F
72 Witness statement of Lisa Fairlie at attachment F
73 Witness statement of Lisa Fairlie at attachment F (email from Ms Karen Shepherd dated 5 June 2015)
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