Neil Ryan v Insurance Australia Group Services Pty Ltd - [2014] FWC 8268

[2014] FWC 8268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 739 - Application to deal with a dispute

Neil Ryan
v
Insurance Australia Group Services Pty Ltd
(C2014/1035)

DEPUTY PRESIDENT SAMS

SYDNEY, 20 NOVEMBER 2014

Application to deal with a dispute - insurance industry - role of Building Support Consultant redundant - employee offered new role of Assessor-Home - whether new role ‘suitable alternative employment’ - no reduction in salary or change of location - retraining offered - medical restrictions - new role ‘suitable alternative employment’ - relief sought by applicant refused.

INTRODUCTION

[1] This matter came before the Fair Work Commission (the ‘Commission’) as a result of an application, filed by Mr Neil Ryan (the ‘applicant’ or Mr Ryan), in respect to a dispute in accordance with a dispute settlement procedure, under s 739 of the Fair Work Act 2009 (the ‘Act’). Mr Ryan was represented by his Union, the Finance Sector Union of Australia (the ‘Union’). The respondent to the dispute is Mr Ryan’s employer of 10 years, Insurance Australia Group Services Pty Ltd (‘IAG’).

[2] Shortly stated, the dispute arises from Mr Ryan’s position as a Building Support Consultant (the ‘former role’) at IAG Newcastle being declared redundant and his placement into an alternative position as an Assessor-Home (the ‘new role’). The Union contends that the new position is not ‘suitable alternative employment’ as it fails to take into account Mr Ryan’s skills and previous 20 years experience in the industry.

[3] There was no objection taken to the Commission determining this matter, by arbitration, in accordance with cl 8.1 of the Disputes Procedure under the Insurance Australia Group Enterprise Agreement 2012 [AE890981] (the ‘Agreement’). Further, there was no argument that all the relevant steps under the procedure have been undertaken. The Union asks the Commission to make the following determination as a remedy for Mr Ryan:

‘A determination that Mr Ryan be redeployed by IAG to an alternative position which reasonably matches his prior experience and training gained from his previous role of Building Support Consultant within the company.’

[4] Another clause in the Agreement, which is particularly relevant to this dispute, is cl 7.6, dealing with Suitable Alternative Employment:

‘Suitable Alternative Employment means a position which:

a) is in the same Classification Level and does not involve a reduction of salary; and

b) is a position which the Employee has the skills and experience required to perform the role to a reasonable standard;

c) is a position for which the Employee should be able to perform to a reasonable standard after a period of training and time in the job; and

d) is at the same location or is within reasonable distance and travelling time from the Employee’s place of residence, taking into consideration the Employee’s usual travel arrangements.’

[5] The focus of the parties’ submissions concerned sub-clause (b) in cl 7.6 above. The respondent maintained that the applicant’s salary was not reduced when he was offered the Assessor-Home role and, in fact, was slightly increased as a result of him no longer having the need for a salary sacrifice vehicle. His base location did not change, although it was apparent that the Assessor-Home role did not require him to leave the office, while his former role as a Building Support Consultant had required him to be ‘on the road’ in order to liaise with builders and other service providers on site.

[6] The evidence disclosed a difference in the time he had been required out of the office; Mr Ryan estimating the time to be 40% and the respondent submitting it was more like 20% of his time. The Union also raised an issue with Mr Ryan’s capacity to sit for long periods of time (a requirement in the new position) given his known and accepted medical restrictions.

[7] The dispute was listed for conferences before the Commission, but the parties’ firmly held positions meant that there was no scope for any settlement of the matter. The dispute proceeded to arbitration.

THE EVIDENCE

[8] The following persons gave written and oral evidence in the proceeding:

The applicant;

Ms Jacqueline Zanetic, Lead Human Resources Consultant for Insurance Australia Group Services Pty Limited of Australia; and

Mr Silvio Necco, Home Assessing Operations Manager for Insurance Australia Group Services Pty Limited of Australia.

For the applicant

[9] In his statement, Mr Ryan said he was first employed by IAG in Newcastle as a Motor Assessor in 2004. He estimated that approximately 70% of his time in this role was spent on office and phone contact based duties and 30% involved field work to examine damaged vehicles and visit repair shops. At this time, he had access to a ‘pool’ vehicle, but this was garaged at his house most of the time and he used it to get to and from work. In 2006, Mr Ryan successfully applied for a position as Building Support Consultant. This role involved coordination with builders for repair of damaged buildings. However, there was no focus on overall assessment of total damage and cost of repairs. He estimated that he now spent 60% of his time in the office and 40% on field-based work visiting sites requiring repair and meeting with builders and repairers. The role involved a significant level of autonomy, allowing him to arrange and vary his work activities in a manner which reduced discomfort arising from him suffering from carpal tunnel syndrome and sciatica. He had had surgery for both of these conditions and had enrolled in a pain management scheme for his back in July 2014.

[10] Attached to Mr Ryan’s statement was the respondent’s position description for Motor Repair / Building Support Consultant. It set out the position responsibilities as follows:

Primary Responsibility	Stakeholder Management
Activity/Example	• Manage relationship with repairers / builders and be their contact point • Engage in regular meetings with repairers / builders • Deliver performance warnings, inform them of breaches when required	25%
Secondary Responsibility	Continuous improvement
Activity/Example	• Identify opportunities and provide options to improve business results of builders/repairers	20%
Responsibility 3	Quality Control
Activity/Example	• Check performance of builders/repairers against performance plans • Conduct audits	20%
Responsibility 4	Research, Investigate, Analyse
Activity/Example	• Gather and analyse information on the operating effectiveness including cost, quality, customer service, facilities, personnel and policies of each repairer/builder	15%
Responsibility 5	Reporting and Documentation
Activity/Example	• Document outcomes / actions from meetings with repairers / builders • Prepare performance reports	10%
Responsibility 6	Training and Coaching
Activity/Example	• Provide training and up-skilling initiatives to external suppliers around risk management, repair and warranty, customer relations.	10%
TOTAL WEIGHTING	100%

[11] Mr Ryan claimed that this position description demonstrated that approximately 70% of his duties were focused on working directly with builders and repairers. It did not set out any significant level of contact with insured customers or in relation to assessment of their claims. While the ‘Technical Specialist Skills’ under this position description referred to a ‘thorough understanding of the motor vehicle repair assessing process’, he had not performed work that would require this level of understanding as a Building Support Consultant. Similarly, while the experience requirement under this position description referred to motor repair assessment, these duties had not formed part of his role.

[12] Mr Ryan said that his Key Performance Indicators (KPIs) identified a focus on liaising with and training and developing building firms to perform repair work to the standard expected by IAG. He noted that he had received a ‘solid performance’ rating in 2012/2013, resulting in a pay rise of 3.2%. He had not been advised of any further pay rise arising from a similar rating in 2013/2014.

[13] Mr Ryan deposed that on 5 May 2014, he was informed by Mr Necco that his Building Support Consultant role was to be made redundant and that he would be moved into the new role of Assessor-Home. He had asked Mr Necco for more time to consider his situation and was told that he had 48 hours to make his decision. Mr Ryan had drawn Mr Necco’s attention to the differences he saw between the two roles, but there had been no further consultation. He was surprised by this. Mr Necco had been aware of his ongoing medical issues as he had approved sick leave related to his injury.

[14] Mr Ryan denied that he had applied for, or had indicated any interest in the role of Assessor-Home. He had applied for the roles of Builder Relationship Specialist, Team Manager-Supplier Quality Audit and Supplier Coach - Home. At the time, he had been surprised and confused and had not been ‘thinking straight’ when he spoke with Mr Necco on 6 May 2014. He was formally notified of his redeployment in a letter on 9 May 2014.

[15] Mr Ryan referred to the witness statement of Ms Zanetic. He acknowledged that he had participated in a ‘Colleague Forum’ on 10 April 2014. However, when he had asked for a breakdown on the restructure information, Mr Tim Rafton (a senior manager) had responded abruptly that he should just accept his calculations as to the number of positions arising from the restructure.

[16] Mr Ryan explained that he had taken advice from the Union, that as his redeployment was disputed, he should request that he not perform any duties in relation to the new role until the dispute was resolved. There had been some back and forth between the Union and IAG between 27 May and 3 June 2014. However, he had subsequently attended training requested by IAG on 4 and 5 June. He had not attended on 6 June, as he had attended a counselling session under IAG’s Employee Assistance Programme (EAP).

[17] Mr Ryan explained that the new role involved the initial assessment of damage to insured buildings and the coverage and cost of such damage under IAG’s insurance conditions. He was required to discuss settlement arrangements with IAG clients and encourage them to use vouchers with IAG-preferred retailers. This required a wider knowledge of household insurance policies, than his former role. Mr Ryan attached the position description for the new role. The primary responsibilities of that role were listed as follows:

Primary Responsibility	Research, Investigate, Analyse
Activity/ Example	• Assess damaged property and contents and determine policy coverage • Identify inconsistent damage • Determine extent of loss, review claim circumstances and manage suspicious claims • Gather information from other parties when required e.g. fire brigade, police etc • Recommend repair cost and method	35%
Secondary Responsibility	Stakeholder Management
Activity/ Example	• Interact with customers over the phone and advise of appropriate policy coverage and claims procedures • Keep customers updated on progress of the claim and next steps • Resolve customer queries/complaints • Negotiate settlements between insurer, repairer and customer and third parties • Liaise with Home Technical Specialists, builders/repairers etc	35%
Responsibility 3	Financial Management
Activity/ Example	• Adhere to compliance guidelines • Evaluate quotations and re-calculate quotes or call for comparison quotes to best mitigate the loss to the company • Authorise best value repairs • Adhere to financial KPIs	15%
Responsibility 4	Reporting and Documentation
Activity/ Example	• Complete required documentation • Place clear and concise notations on system after each interaction with customer outlining next steps required	10%
Responsibility 5	Operational Support
Activity/ Example	• Provide field support during major events and travel as required intra and interstate as per business requirement	5%
TOTAL WEIGHTING	100%

[18] Mr Ryan claimed that this position description demonstrated that over 70% of his duties involved direct interaction with, or on behalf of insured customers, over the phone. He had no prior experience in dealing directly with customer home claims. However, he had received 3 days on the job training on or around 4 and 5 June 2014. He understood he would be receiving another 5 days training in the home insurance contents policy. Mr Ryan did not feel this was sufficient and noted that in his previous ten years of employment, he had not worked at his desk continuously each and every day. His previous experience as a Motor Assessor between 2004 and 2006 was not really relevant to assessing damage to residential buildings and, in any event, had involved more field work.

[19] Mr Ryan’s interactions with other staff who worked in Assessor-Home roles led him to believe that the role is complex and involves specialist knowledge. The new role also has an element of sales, which was new to him. There was very little autonomy to vary or reschedule his working day, breaks and leave as his activities were set by a computer based system, named ‘Shift Track’. He understood that the relevant KPIs for this role involved adherence to set phone call requirements and targets. This would have an impact on his medical issues and his ability to access performance based pay increases. Mr Ryan said he no longer had reasonable personal access to an IAG provided business vehicle, for which he had previously made an annual reimbursement of $3,800. He estimated the cost of running a personal vehicle at $12,000 per year. He had also been required to purchase a mobile phone plan to replace the one previously issued by IAG.

[20] Mr Ryan referred to a letter from Dr Ashley dated 6 July 2014, which advised that he ‘be given a more suitable position with the same freedom of movement as his previous position.’ Mr Ryan also provided a letter dated 5 August 2014 from orthopaedic surgeon, Prof. Ghabrial to his own GP, which set out the history of Mr Ryan’s injuries. It said, inter alia:

‘Regarding his back, the recent MRI scan showed recurrent disc protrusion which may require surgery but he could manage without surgery if he could adjust his lifestyle to live with his disabilities. Naturally, sitting for 8 hours per day is highly likely to aggravate his symptoms.

I would suggest that consideration be given to him returning to his previous type of employment which was probably heavier but he was able to perform that work as he was able to change positions all the time. That would probably be a better option for his back than sustaining one position for lengthy periods.

...

In summary, he should be avoiding heavy lifting, excessive bending, excessive twisting and sitting or standing for lengthy periods. He can, however, have a combination of these activities during his work hours allowing him to change position when ever needed. If the NRMA insists on his working in his current position at the call centre, then he should have a 15 minute break every hour where he can stand and walk. Even sitting for 1 hour may aggravate his symptoms and, under these circumstances, other employment options should be considered.’

[21] In cross examination, Mr Ryan agreed that holding a trade qualification constituted a ‘capability’ necessary for being a Motor Assessor. He was shown copies of the position descriptions for both the Motor Repair / Building Support Consultant and Assessor-Home roles. He agreed that both were marked with the same job classification number, being INAS3. While he agreed that the broad categories listed as ‘Personal Capabilities’ for both positions were very similar, he noted that the ‘behavioural indicators’ were not.

[22] Mr Ryan accepted that in his new role, his salary was slightly increased, as he was no longer salary sacrificing for a motor vehicle.

[23] Mr Ryan said he had had undertaken seven days training since commencing the Assessor-Home role and had worked autonomously in the new role for somewhere between 7 and 10 days. During this period, he had taken leave, so that he could have surgery performed on his hand. He did not believe that he had been properly trained to do call centre based work.

[24] Mr Ryan agreed that IAG had provided him with a wireless headset so that he could get up and move around. However, he did not have an ‘automatic clock’ telling him to get up and stretch and the pain in his back had become worse. He was concerned that ‘Shift Track’ - the software that monitored his time taking calls and which allocated his work - did not take this factor into account.

[25] Mr Ryan estimated that he had travelled in his work vehicle one week a month over a period of years. However, he agreed that travel time had been cut down more recently. He accepted that in the last year, he had travelled between 6 and 9 days per quarter in the company vehicle. His statement as to the time spent on field work was based on an average over the last eight years.

[26] In re-examination, Mr Ryan said that he did not consider his trade qualification to be of a similar level of skills or formal knowledge as the ‘capabilities’ outlined in the position descriptions. In any event, he did not think that the capabilities of the two positions were directly comparable. There was no variation to the work. It was allocated to him by a computer which monitored his adherence to his targets on a ‘traffic light’ basis.

[27] Mr Ryan put that there had been no significant adjustment to his salary sacrifice arrangements when his use of the tool of trade vehicle ended. While IAG had given him $2,000 towards the purchase of a car, the Fringe Benefits Tax paid back to him did not make up for the cost of a new car.

[28] Mr Ryan emphasised that his old role as a Motor Assessor had required trade qualifications; a person had to be a mechanic, a panel beater or a spray painter. He was not required to hold these qualifications for his Building Support Consultant role. He had applied for this role, as it was a supplier management role, rather than a customer focused role, which came with a full time vehicle. He had been responsible for managing the costs sustained by builders and the quality of their work. Events, such as severe storms could have a large variable impact on the nature of the work he performed.

[29] Mr Ryan denied that there had been an extensive consultation process. Employees had been told at a ‘roadshow’ that they would have to reapply for their jobs and given very little time to do so.

[30] In answer to a question from me, Mr Ryan said that he did not accept that his Building Support Consultant role was redundant. The wording of the role had been changed and it was now in a higher classification band. Even so, he had unsuccessfully applied for that role and other supply management positions.

For the respondent

Ms Jacqueline Zanetic

[31] Ms Zanetic is employed by IAG and works in the People and Culture Team as Lead Human Resources Consultant. Her team provides support to both IMA and IAG, which are collectively known as Insurance Australia Group.

[32] In her statement, Ms Zanetic outlined the history of the restructure to the ‘Home Customer Claims and Assessing (Assessing)’ operating model. This was announced by Mr George Nitsou, Senior Manager - National Home Customer Claims & Assessing on 7 and 8 April 2014 by video and telephone conference. The benefits that were anticipated from this change included the management of a customer’s claim by one employee throughout the process, a reduction of file handovers and the reduction of duplication across IAG nationally. On 9 April 2014, an email seeking feedback prior to the finalisation of the new model was circulated to employees, including Mr Ryan. An information pack and draft position descriptions were also made accessible to employees.

[33] Ms Zanetic explained that the respondent had engaged in a consultation process with its employees and the Union between 9 and 15 April 2014. Together with Mr Nitsou, Mr Tim Rafton (Senior Manager, GO Claims) and Mr Necco, she had co-convened ‘Colleague Forums’ in Brisbane, Newcastle, Hurstville and Essendon. The new operating model was explained and employees were encouraged to provide feedback to their Managers, via the Union and through a shared email inbox. Ms Zanetic remembered that Mr Ryan had actively participated in the discussion when they attended Newcastle on 10 April 2014. The Union had also held its own meetings with staff. As a result of these sessions, Mr Nitsou forwarded an email to staff on 14 April reminding them of the consultation process and providing a breakdown of the numbers which informed the new operating model.

[34] In further oral evidence, Ms Zanetic explained that the respondent had received a large volume of feedback in the ‘Colleague Forums’ and had received over 100 pieces of written feedback.

[35] Ms Zanetic deposed that after considering the feedback provided by staff, the proposed changes were confirmed on 22 April 2014 in an announcement by Mr Nitsou by video and telephone conferences. The roles in the new structure were confirmed, an Expression of Interest (EOI) process was outlined and redundancies and changes to Tools of Trade (TOT) vehicles were announced. Ms Zanetic noted that Mr Ryan had been on leave between 14 and 28 April 2014. She could not say whether he had taken up an opportunity to dial into the conference. Nevertheless, he had been invited to a supplementary session held on 29 April.

[36] Ms Zanetic described the progress of the EOI process between 22 and 30 April 2014. All affected employees were given an EOI pack, which set out how selection would proceed with reference to role history, skills, experience, capability, demonstration of behaviours, location and previous performance. This material also explained that employees could be placed in a role, which was considered ‘suitable alternative employment’, without having expressed their interest in that role. Employees were also given a table setting out the new roles and given access to a FAQ intranet site. Mr Ryan provided his EOI on 11 April 2014 setting out his interest in the Builder Relationship Specialist and Team Manager-Supplier Quality Audit (home) roles while he was on leave. However, he had not sent a formal EOI based on the template provided by the respondent between 22 and 30 April.

[37] Ms Zanetic stated that the Assessor-Home role had been formally offered to Mr Ryan in a letter dated 9 May 2014, which had explained that the Building Support Consultant role would be redundant from 9 June 2014. While the Assessor-Home role was office based, Ms Zanetic denied that it was in a ‘call-centre’ environment. The relevant employees were required to use their trade and industry experience to review and assess supplier and assessor reports. However, this meant that each individual dealt with fewer claims.

[38] Ms Zanetic estimated that 80% of Mr Ryan’s work as a Building Support Consultant had been at his desk and 20% was ‘on the road’. The nature of the new role meant that he was not eligible for a TOT vehicle as it was not required each working day to perform the role. Additionally, the respondent’s TOT vehicle policy set out that an employee would be eligible for a TOT vehicle, where it is driven 25,000+km per year for work purposes by an employee who is required to spend 60+% of their time away from their primary workplace. The employer pays 5/7 of the cost of the vehicle.

[39] Ms Zanetic explained that there were approximately 40 employees who were no longer eligible for a TOT vehicle as a result of the new operations model. After an initial proposal put forward by the respondent on 8 May 2014 and a TOT working group held on 14 May 2014, the affected employees were offered four options on 21 May 2014. These were:

1. Return the TOT vehicle by 1 August 2014;

2. Purchase the current TOT vehicle at market value or written down value, whichever was lesser. The respondent proposed to cover the difference between the amounts and reimburse $350 towards transfer fees;

3. Purchase another TOT vehicle in the respondent’s fleet. The respondent proposed to cover the difference between the two vehicles and reimburse $350 towards transfer fees;

4. Purchase a vehicle personally, to which IAG would make a $2,000 contribution, subject to proof of purchase.

Mr Ryan had chosen to return his vehicle on 1 August 2014, after which he began to receive, into his total salary, the 2/7 cost of the car which had previously been salary sacrificed. He had been refused a $2,000 reimbursement for a car he had purchased in 2013.

[40] Ms Zanetic noted that Mr Ryan’s new role was at the same classification level and did not involve a reduction in salary. In order to determine whether a new role was ‘suitable alternative employment’, the respondent undertook a process of review and analysis of each employees’ relevant skills, capabilities, role history, experience and performance. In Mr Ryan’s case, his strong performance history; his assessing background arising from his Motor Assessor role; and his experience in managing and coaching on the technical aspects of the assessment process in the Building Support Consultant role, supported IAG forming the view that Mr Ryan could perform the duties of the Assessor-Home role to a reasonable standard.

[41] Ms Zanetic referred to IAG’s ‘Capability Dictionary’ which was designed to standardise the human resources language of the respondent in relation to position descriptions, recruitment, restructures and feedback. The dictionary set out both categories and levels of a capability. This had also contributed to an assessment that the skill set for the Building Support Consultant role was very similar to that of the Assessor-Home role.

[42] Ms Zanetic said that training had been provided for Mr Ryan from 4-6 June 2014 so as to ensure he could perform the Assessor-Home role to the requisite standard by 9 June 2014. However, he only attended training on 4 and 5 June before taking personal leave. He returned on 13 August 2014 and had been informally trained in the workplace. Formalised training had been due to occur on 2-3 and 8-12 September 2014. The respondent had retained a dedicated trainer for this purpose.

[43] Ms Zanetic was shown a document marked ‘Suitable Alternative Employment (SAE) PD Analysis’ (the ‘SAE document’) which referred to a comparison between the Motor Assessor Role and the Building Support Consultant on one hand, with the Assessor-Home role on the other. She clarified that this was a side by side assessment of the position descriptions, rather than Mr Ryan’s performance as an employee in those roles. This, along with the ‘Capability Dictionary’ assisted the respondent in forming the view that the roles were comparable. A ‘capability’ was defined by the respondent as a developed or innate skill that is transferrable. This could be contrasted with a ‘duty’, which was an activity. She added that a TOT vehicle would attach to a duty, rather than a capability.

[44] In response to a question from me, Ms Zanetic said that 22 employees had been made redundant out of approximately 100 employees who had been impacted in the restructure. None of these were voluntary redundancies, as the Agreement did not provide for them.

[45] In cross examination, Ms Zanetic acknowledged that she could not recall ‘word for word’ how Mr Ryan had participated in the ‘Colleague forums’, but he had made his views known ‘emotionally’ about the proposed numbers of employees under the new operations model. The structure had not been confirmed at that point and the comparative capabilities of the roles were not addressed. It was true that Mr Ryan would not have known what role he was to be redeployed in, at that point.

[46] Ms Zanetic agreed that Mr Ryan had not been consulted as to the contents of the ‘SAE document’. She could not say whether Mr Ryan had been consulted individually and specifically about his redeployment to the Assessor-Home role, but he would have been on notice after receiving the consultation materials and the ‘Roles Matrix’ of the possibility of being placed in that role.

[47] Ms Zanetic accepted that there were differences in how an individual’s performance was measured when carrying out their telephone based duties under the Building Support Consultant and Assessor-Home roles. In the Assessor-Home role, the calls would be recorded and monitored using the ‘Shift-track’ system.

Mr Silvio Necco

[48] Mr Necco is employed by IAG as the Home Assessing Operations Manager - National, having been the Home Assessing and Partner Performance Manager prior to 9 June 2014. In his written statement, Mr Necco said that he had been advised of the proposed restructure of Home Assessing on or around 11 March 2014 and that there would be flow-on effects to staff, other than the Home Assessing Teams. Mr Necco outlined the earlier phases of the restructure. The first phase was the ‘Colleague Forums’, involving consultation with staff and assessment of their feedback. A final model was decided after consideration of the feedback and the next phase of the EOI process was begun. Management and HR considered the preferences received from staff in conjunction with the new model. Impacted staff were advised at the end of this process that they had been appointed into a new role, or that they had been redeployed into suitable alternative employment or that they were to be offered a redundancy package.

[49] Mr Necco noted that Mr Ryan’s expression of interest of 11 April 2014 had nominated the Builder Relationship Specialist, Team Manager Supplier Quality Audit and Supplier Coach Home roles. Mr Necco and Mr Craig Byfield, Manager, Customer Claims met with Mr Ryan on 5 May 2014 to advise him that his Building Support Consultant role was redundant, and that he had successfully obtained the Assessor-Home role, based at the same location and grade and paid at the same level, as ‘suitable alternative employment’. Mr Ryan had responded that he thought that he was entitled to a redundancy package and that he was unlikely to accept the new offer.

[50] Mr Necco stated that the following day, Mr Ryan approached him and angrily said that he was ‘pissed off and angry’ with the offer and that he felt he had ‘been rissoled and assholed into it’, especially in light of the positive feedback he had received in relation to his response to recent storm events. He felt that he should have been offered a field based role. While Mr Necco was shocked at this outburst, he had told Mr Ryan that his performance was excellent. While he would have been suitable for field based roles, there were limited roles available in the new structure and the management and HR team had made their decision on the basis of the structure and the responses from the EOI process. Mr Ryan had said that he did not agree with the new structure. He had threatened to ‘work to rule’ or ‘go off sick’. Mr Necco had remonstrated with Mr Ryan that he was still required to conduct himself appropriately. Mr Ryan said that he would give his response to the offer shortly, but reiterated his unhappiness.

[51] Mr Necco said that he called Mr Ryan on 29 May 2014, after he had declined an invitation to attend training for his new role which was to occur on 4-6 June 2014. Mr Ryan had told him that the Union had advised him not to attend training as it could be perceived that he was accepting the role. Mr Necco asked Mr Ryan to put this in writing. After contacting the Union, Mr Ryan asked Mr Necco to put the request that he attend the training in writing. Mr Necco responded that the initial invitation was the confirmation and the request. On 30 May 2014, Mr Ryan had sent him an email asking that the training be put on hold, until the dispute lodged with the Commission, was resolved. Mr Necco responded that he was expected to attend any training organised for him. He called Mr Ryan on 2 June 2014 to reiterate this requirement. Mr Ryan had said that while he did not want there to be any ‘ill-feeling’, he would not attend the training until the matter was heard by the Commission.

[52] Annexed to Mr Necco’s statement was a letter sent to Mr Nikhil Singh of the Union on 3 June 2014 by Mr David Lahood, IAG’s HR Consulting Manager. The letter set out that the requirement for Mr Ryan to attend training was a lawful and reasonable direction and that his attendance would not prejudice the dispute notification he had lodged with the Commission. After setting out the history of the restructure, Mr Lahood asked for confirmation that Mr Ryan would attend by 2:00pm that day and put that if Mr Ryan chose not to commence in the new role, the respondent would assume that he had declined the offer of ‘suitable alternative employment’ and accept his resignation.

[53] Mr Necco spoke to Mr Ryan after he became aware of the contents of this letter on the afternoon of 3 June. Mr Ryan said that the comment that he would not be prejudiced if he attended training, was inconsistent with the ‘ultimatum’ that he would be terminated if he did not. He threatened to call a family member who worked at Channel 10. Mr Necco reiterated that Mr Ryan’s dispute would not be prejudiced if he attended the training. Mr Ryan then said that he did not believe the training was sufficient. Mr Necco replied that if he felt that it was not sufficient, then more training would be provided. While Mr Ryan said that if the Commission ruled that the role was ‘suitable alternative employment’, he would accept it. However, he believed that one of the persons who had obtained a Builder Relationship Specialist role had been under performance management and that the selection process was questionable. When Mr Necco referred to this as ‘rumour and speculation’, Mr Ryan reiterated his threat in relation to contacting the media.

[54] Mr Necco said that after a conciliation conference conducted by the Commission on 1 July 2014, he had received a text message from Mr Ryan, which said: ‘Knights. 11 roosters 10 Lol’. He did not know what to make of the text and said that this type of communication was ‘out of character’ for Mr Ryan. Mr Necco described a telephone conversation he had with Mr Ryan on 2 July 2014. Mr Ryan had said that he would be willing to negotiate a settlement, whereby he left the Company subject to a confidentiality agreement. Mr Necco said that he felt pressured and uneasy, given the threats to contact the media and the ‘out of character’ text message. He responded that the respondent was content with its offer of ‘suitable alternative employment’, subject to a decision of the Commission which determined otherwise.

[55] Mr Necco explained that Mr Ryan had taken personal leave due to his back injury and carpal tunnel syndrome from 1 July 2014. A letter from Dr Peter Ashley dated 6 July 2014 set out that his new work in a ‘call centre environment’ had been detrimental to his injuries. Mr Necco was surprised by this, as Mr Ryan had been primarily office based when he worked in the role of Building Support Consultant. He probably travelled to Northern and North-West New South Wales 6-9 days every quarter. He denied that Mr Ryan had been told he could not get up and move around or that the workplace was a ‘call centre environment’. On receiving the Doctor’s letter, the respondent had started a return to work and injury management program. The respondent was willing to accommodate a requirement that Mr Ryan stand and move around for 15 minutes of every hour. In addition, he was given a wireless telephone headset so he could continue working while he did so. Mr Necco was confident that Mr Ryan’s injury could be managed and that training arrangements under which Mr Ryan was ‘shadowed’ by other Assessor-Home employees would mean that he would be capable of performing the new role.

[56] In cross examination, Mr Necco accepted that Mr Ryan had been unhappy at the news of his redeployment as Assessor-Home and that the level of his response on 5 and 6 May 2014 was probably due to this news. He understood that Mr Ryan had attended training on 4 and 5 June 2014.

[57] Mr Necco said that he had not engaged on a one on one consultation with Mr Ryan as to his redeployment into the Assessor-Home role prior to 5 May 2014 as there were approximately 100 employees who were affected by the restructure. They had expressed their views in the ‘Colleague Forums’. However, if any employee felt uncomfortable doing this, they could have used the common email inbox for that purpose. Mr Necco was aware of Mr Ryan’s medical issues and said that the respondent had complied with its requirements in this regard, as it would for any other employee. It was up to Mr Ryan to bring to the respondent’s attention any specific issues related to his health which were relevant to his redeployment.

[58] In re-examination, Mr Necco said that Mr Ryan had had access to personal leave entitlements for his medical issues fairly continuously in the lead up to, and during the restructure process. The respondent had experience in dealing with non-work related injuries at work and was flexible in its attempts to accommodate such individuals.

[59] Mr Necco confirmed that Mr Ryan had had access to the ‘Role Matrix’ and position descriptions throughout the consultation process.

SUBMISSIONS

For the applicant

[60] In written submissions, the Union referred to cl 7.6 of the Agreement and put that if the requirements of this clause were not met in redeploying Mr Ryan to the Assessor-Home role, the further question remained as to whether Mr Ryan and the respondent could agree on other redeployment options in accordance with cl 7.9 or whether he should be subject to a redundancy package.

[61] The Union submitted that the evidence demonstrated that the new role was not ‘suitable alternative employment’ within the meaning of cl 7.6. The applicant believed that the relevant KPIs for the new position could impact on future annual salary increases and he had lost reasonable personal use of his TOT vehicle. Both of these factors were relevant as to whether there was a reduction in salary or classification level (cl 7.6(a)). He had never worked as an Assessor-Home and he had not had prior experience or formal training (cl 7.6(b)) in the role.

[62] In reference to whether Mr Ryan was able to perform the Assessor-Home role to a reasonable standard after training and time in the job, the Union noted that Mr Ryan had not been advised as to what constituted a ‘reasonable standard’ of performance in the new role. While he had received generally available information about the nature of his work in relation to quantity and allocation of phone calls, he had only received three days ‘on the job’ training, with five days further detailed training to come. Mr Ryan did not see how this would be sufficient. He also had concerns that his medical issues would prevent him from properly performing in the role, given that he was not able to remain seated for long periods of time.

[63] The Union put that the phrases ‘acceptable alternative employment’ and ‘suitable alternative employment were similar for the purposes of this arbitration; See: Australian Chamber of Manufactures v Derole Nominees Pty Ltd (1990) 140 IR 123 (‘Derole’); Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397 [PR977090] (‘Von Bibra’); and National Union of Workers v Tontine Fibres [2007] AIRCFB 1016. Given that the Union had been involved in bargaining for the Agreement, it is unlikely that it would have agreed to this phrasing, if it were inconsistent with existing case law.

[64] On the other hand, the Union said that Finance Sector Union of Australia v Allianz Australia Insurance Limited[2009] FWA 1243 (‘FSU v Allianz’) could be distinguished from this case as the evidence had been that the core competencies of the relevant roles were identical. Similarly Heath v National Australia Bank Ltd [2014] FWC 3944 (‘Heath v NAB’) could be distinguished as it had been found that the applicant’s role was not redundant and he had, in fact, been offered a choice of remaining in his role or moving to a different one.

[65] In oral submissions, Mr D Peddie of the Union submitted that the respondent had failed to involve Mr Ryan in one on one consultation as to his redeployment. If the respondent had done so, then it may have formed a different view as to his suitability for the Assessor-Home role. He had simply been told as to the plans for his redeployment. While his response had been ‘abrupt’, this was ‘out of character’ and an understandable reaction to the bad news. He sought that the respondent reconsider its decision. If it was not possible to redeploy Mr Ryan in a more appropriate position, then he should be retrenched. While the positions in which Mr Ryan had indicated his interest were promotions, he had been in his position as Building Support Consultant for a number of years and he would have been suitable for a similar role at a higher level.

For the respondent

[66] In written submissions, the respondent outlined the history of the restructure and the consultation process with its employees and the criteria of cl 7.6 of the Agreement. The respondent, through Ms Zanetic, had worked through an extensive ‘organisation design process’ to ensure that any redeployments were to ‘suitable alternative’ roles in accordance with cl 7.6 of the Agreement.

[67] In the case of Mr Ryan, the respondent submitted that the Assessor-Home role was in the same classification band and at the same salary as the Building Consultant role (cl 7.6(a)) After reviewing his employment history and the comparative analysis of the position descriptions, the respondent was satisfied that Mr Ryan had the requisite skills and experience to perform the role, to a reasonable standard, after training and time in the job (cl 7.6(b), (c)). He had had training on 4 and 5 June 2014 and had been informally trained by ‘shadowing’ other employees. The respondent had also retained a training coach. Mr Ryan remained based at the office in Newcastle (cl 7.6(d)).

[68] The respondent accepted that the duties performed under each role were different, but the skills and competencies of each position were similar. This contributed to a finding by the respondent that the new role constituted ‘suitable alternative employment’. The respondent clarified that rather than KPIs being referable to phone usage or volume of calls, they were referable to adherence to a set schedule. It was acknowledged that the KPIs were different for the different roles, but this was not unreasonable. While a screen showed how many persons were ‘on hold’, it was denied that this was indicative of a call centre environment.

[69] The respondent outlined the salary sacrifice arrangements for TOT vehicles and emphasised that its policy was that a TOT vehicle is attached to a role, rather than an employee. Affected employees had been offered a choice of transitional arrangements (see para [39]). While Mr Ryan had requested a reimbursement of $2,000 for a car he had purchased in 2013, this was outside the scope of the transitional arrangements and he had simply returned his TOT vehicle. He now received 2/7 of the running cost of the vehicle in his take home salary.

[70] The respondent claimed that it had sought guidance from the applicant’s treating doctor as to how to best approach his injuries and assist in his fitness for, and return to work. It had ordered a wireless headset to enable him to get up and walk for 15 minutes every hour in accordance with the advice of Prof. Ghabrial. It was not anticipated that Mr Ryan’s injury would be an impediment to performing his new role.

[71] The respondent contested that the meaning of ‘acceptable alternative employment’ and ‘suitable alternative employment’ were similar and that the case law referring to the former phrase was not relevant to this case. Really, the case was that Mr Ryan did not want the Assessor-Home role, not that it was not suitable, which was demonstrated by the evidence of Mr Necco. Mr Ryan’s preferences were not determinative to this case; See: FSU v Allianz; and Heath v NAB.

[72] The respondent submitted that the evidence of Ms Zanetic demonstrated that it had complied with the consultation clause of the Agreement (cl 9.2) by way of its ‘Colleague Forums’ and the subsequent review of feedback from employees.

[73] In oral submissions, Ms L Dowling noted that the respondent had successfully redeployed approximately 70 employees out of the 96, who were affected by the restructure. It was estimated that Mr Ryan’s annual salary sacrifice for his TOT vehicle was approximately $3,800 per annum, which he now received as take home pay. In any event, this benefit did not constitute ‘salary’ for the purposes of cl 7.6(a) of the Agreement.

[74] Ms Dowling said that Mr Ryan was a very capable employee with a good performance record. She rejected a characterisation of the new workplace environment as being a ‘call centre environment’. In any event, given that Mr Ryan had spent 80% of his time in the office during the previous year, having an entirely office-based role was not a drastic change for him.

[75] In reply, Mr Peddie submitted that work of the Assessor-Home position was largely focused on phone based work. This work was new to Mr Ryan. He had had some management, coaching and development duties in his previous role which he had enjoyed and which was not present in the new role. Mr Peddie also emphasised the ‘pre-programmed’ nature of the work. This was in contrast to the flexibility and autonomy which Mr Ryan had experienced in his previous job.

CONSIDERATION

[76] There could be no serious argument put that the applicant’s position as a Building Support Consultant was not truly redundant on 9 June 2014. Mr Ryan’s redundancy arose as a consequence of a review undertaken by IAG of its operational requirements which impacted on 96 employees. The respondent deemed Mr Ryan as being suitable for the position of Assessor-Home. In this respect, I refer to what Hatcher VP recently said in Low v Menzies Group of Companies[2014] FWC 7829 at para 16:

‘[16] The second submission is not relevant to my consideration. It is not the function of the Commission, in determining whether a dismissal is a case of genuine redundancy, to form a view about the merits of the decision to make a position redundant. Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.’

[77] While acknowledging that this role has different functional duties to Mr Ryan’s former role, the respondent maintained the roles are comparable and Mr Ryan has the skill set and capabilities to perform the new role to a ‘reasonable standard’. It follows that if Mr Ryan did not accept the new role, he could resign, but he would not be declared redundant for the purposes of any redundancy payments payable under the terms of the Agreement.

[78] As a first step, I find that Mr Ryan’s position as a Building Support Consultant was made redundant for operational reasons. The essential question for the Commission to determine is whether the new role as an Assessor-Home was ‘suitable alternative employment’ within the meaning of cl 7.6 of the Agreement. The corollary of a negative answer to this question is that the respondent would undertake inquiries as to any other suitable alternative positions and, if one could not be found, Mr Ryan would then be made redundant and paid full redundancy entitlements.

[79] As will be apparent from the wording of the definition in the Agreement of ‘suitable alternative employment’, two relevant considerations were discussed in this case. The first of these concern whether Mr Ryan has the skills and experience to perform the new role to a ‘reasonable standard’ and, secondly, if he does not possess the skills, would he be able to perform the role to a ‘reasonable standard’ after a period of training and time in the new job.

[80] While considered in slightly different contextual setting and industry (banking), Moore J in Hawkins v Commonwealth Bank of Australia (1996) 66 IR 322 (‘Hawkins’) said this at pp 348-350:

‘Of critical importance in determining whether the new position was a directly comparable one, is the meaning of the word ‘‘unreasonable’’. Any judgment as to whether the change of duties are significant enough as to be unreasonable would, in my opinion, need to be objective and would involve questions of degree. The language of the definition does not suggest that the unreasonableness of the change in duties turns on the opinion of the employee or the Bank. The word ‘‘unreasonable’’ is found in an adjectival phrase, ‘‘significant enough as to be unreasonable’’, qualifying the nominal phrase ‘‘change of duties’’. The adjectival phrase identifies the extent or magnitude of the change of duties which, if exceeded, renders the new position not directly comparable. Whatever is comprehended by ‘‘unreasonable’’, it requires, as a measure of reasonableness, reference to the existing skills, or future skills after training, and abilities of the officer concerned. It is plain that if the new position requires the performance of a range of new duties and the employee does not possess the skills to discharge those duties, or is unlikely to acquire them after training, then the change of duties is significant enough as to be unreasonable. That is because it is unreasonable to call upon an employee to do work they are unlikely to be able to do with any measure of success. I should add that I do not see any material difference between ‘‘skills’’ and ‘‘abilities’’. Those words appear to be repetitive unless ‘‘skills’’ is intended to describe capacity to do a task that depends on some form of training and ‘‘abilities’’ is intended to describe a more ethereal aspect of a person’s capacity to do particular work. However nothing, in my view, turns on any difference in meaning between those words.

In the present case the relevant question is how the definition is intended to operate if the change in duties is such that the employee plainly has the skills and ability to perform them as Hawkins conceded in relation to the new position, but the skills required reflect only some of the employee’s skills. Two points can be made. First, it is likely that it was contemplated by the parties to the Agreement that the directly comparable position would be at a similar level of responsibility within the Bank and of broadly similar significance to the Bank in terms of the Bank’s operations. This may be inferred from the express requirement that the position be at the same classification. The second is that the three elements in the definition, which are classification, change of duties and location, are, in my opinion, designed to establish minimum standards for the benefit of the employee. This may be inferred not only from the subject matter of the elements but the effect of cl (e)(iii) which has been discussed earlier. The employee is deprived of certain benefits under the Agreement if he or she is offered and rejects a directly comparable position. The definition is framed so as to ensure that the loss of those benefits occurs only if the employee is offered a position that he or she might be reasonably expected to accept because it satisfies those standards.

Given that the definition serves this purpose, it is probable that the parties intended the word ‘‘unreasonable’’ to comprehend not only situations where the changed duties or a significant number of them could not be performed by the employee either immediately or after training, but also any other unreasonable effect on the employee arising directly from and relating directly to the employee’s skills and abilities. It would thus operate in situations where the performance of the changed duties would require the use of only a limited range of the employee’s skills with the potential that the skills would be lost by the employee over time. That is, the range of his or her skills would diminish over time in the offered position because he or she was no longer called upon to exercise them. The loss of those skills may indirectly bear upon the employee’s prospects of promotion in the Bank. There may be other consequences flowing from the offered position requiring the use of a limited range of the employee’s skills which are comprehended by the expression ‘‘significant enough to be unreasonable’’ but they are not readily apparent.

However given that the offered position needs to be at the same classification to satisfy the definition, I do not consider it is likely that the parties intended unreasonableness to be measured by reference to loss of status arising from the use of only some of the employee’s skills. The case advanced by the applicants was that the position offered to Hawkins was, in essence, that of a salesman. The gravamen of the applicants’ case on this issue was that the broad managerial role Hawkins performed, and thus the skills he used, would no longer form part of his duties. There was no suggestion that those skills would be lost to him while performing the duties of a relationship executive. Rather the limited skills he would use as a salesman had a bearing on his own perception of the status of the position, the possible perception of its status by others within the Bank and how that might affect his prospects of promotion to the position he aspired to occupy within the Bank. It could also have a bearing on the perception of those with whom he might deal outside the Bank. Each of these matters really concerns the status of the offered position and they are not, in my opinion, matters to which the relevant part of the definition was directed. Accordingly, the position of relationship executive graded at the SE level was a directly comparable position.’

[81] On the other hand, Madgwick J considered the offer of a new position which he considered to be a new contract in Westen v Union des Assurances de Paris (1996) 88 IR 259 at p 161:

‘The applicant perceived, and in my view correctly perceived, that there was a considerable change in the nature of the new position he was being offered. He was, in effect, to become a senior, specialist claims clerk, whose considerable experience and expertise might be available to other people, outside his team, dealing with claims, but it would be at the option of those other people to consult him or not. Continuing to call him a Claims Manager did not make him one.

He was thus offered new and different employment from what he had contracted for. He declined it, as was his contractual right. The respondent by its officers made clear that it would not continue to employ him to do his previously-contracted work. He was entitled to, and did, treat the contract of employment as breached in a fundamental way by the respondent and to regard it as terminated at the instance of the employer.

I agree, subject to a gloss, with the learned authors of The Law of Employment (3rd ed, Law Book Company, 1990), Macken, McCarry and Sappideen (at p 188):

“In the absence of a contract allowing it, the employer cannot force changes [of job or regrading] on an employee. An attempt to do so will involve the employer in breach of contract if the [employee] presses her or his requirements . . .”

The gloss is that this must not be taken to propound undesirable inflexibility: there must be some reasonable give and take. In a rapidly changing world, it would be uncommon for the parties to a contract of employment to envisage no change in aspects of the job. But employers’ perceptions as to what are the important aspects of jobs they have promised employees and later wish to change may not coincide with the perceptions of the employees, nor of independent observers, such as courts to which the employees might, in due course repair. Serious, non-consensual intrusions upon the status or responsibilities, as well as upon the remuneration, attaching to a job may well be held to amount to a repudiation of the contract of employment, and their actuality will not be denied merely by the retention of the job’s title. That is the drift and the tenor of cases such as Beck v Darling Downs Institute of Advanced Education (unreported, Supreme Court of Queensland, No 3865 of 1988, Dowsett J, 20 April 1990) and Quinn v Jack Chia (Australia) Ltd (1991) 43 IR

So it is here. Mr Westen’s employment was terminated by the respondent’s having indicated that it would not continue to be bound by the contract it had with him as to his employment.’

[82] Richards SDP in Von Bibra put the principles applicable here in a different way when he said at para [26]:

‘...the objective test of acceptability appears to be that the alternative work bears a sufficient comparability to the original work and is not unreasonably removed from the employee’s original duties, skills set, qualifications, experience and other terms and conditions of employment. The test is not whether or not the employee is capable of carrying out the new employment as such, it is whether there is sufficient correlation between the relevant indicia of the current work and the alternative employment as proposed.’

[83] While these, and many other decisions of the Commission concerning the offer of alternative employment deal with the notion of ‘comparable employment’, in this case the word used is ‘suitable’ (alternative employment). The Macquarie Dictionary defines the word ‘suitability’ as ‘to be appropriate or suitable; accord; satisfactory, agreeable, acceptable or filling’. ‘Comparable’ is defined as ‘capable of being compared; to represent as similar or analogous, liken (to).’ While I agree the words have a slightly different meaning (‘suitable’ having a wider and more general meaning than ‘comparable’), I think, for the purposes of this case, that they may be interchangeable. Accordingly, the above authorities are apposite.

[84] At this juncture, I would wish to stress that a ‘suitable alternative position’ or comparable alternative position do not mean the same position. Self-evidently, if this was so, the words would have no work to do because no one would be transferred to the same position (which had just been made redundant).

[85] It is also helpful to take account of factors which are generally not held to be considerations of whether a position is a ‘comparable position’. In Heath v NAB, I described these factors as:

feelings of a loss of status or importance within an organisation;

whether the employee dislikes the new role;

whether the employee feels uncomfortable about the new role; and

whether the employee is unhappy or dissatisfied with the process of consultation leading to a position being made redundant.

[86] In summary, then, the test of what is a ‘comparable role’ is an objective one, not a subjective one based on personal hypothetical views. In Derole, a Full Bench of the AIRC said at p 128:

‘What constitutes “acceptable alternative employment” is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.

Yet, the use of the qualification “acceptable” is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.’

[87] As to the process of consultation, while there was some passing reference to being dissatisfied with the process, I do not consider that such a claim can be justified in this case. Invariably, an employee will complain about a process which leads to a decision which they do not like. Conversely, rarely would an employee complain when a process leads to an outcome they are happy with, even if the process is flawed.

[88] I turn now to the facts and circumstances of this case to determine whether the position of Assessor-Home is a ‘suitable alternative position’ in Mr Ryan’s circumstances. True it is that Mr Ryan lost the benefit of a salary sacrifice vehicle because of the nature of the new position. However, the fact is that in so doing, his salary actually went up - albeit only marginally. But, in any event, I do not consider that the loss of a salary sacrifice vehicle is a relevant factor for the purposes of the definition of cl 7.6 of the Agreement. Sub-para (a) speaks only of the position being at the same classification and ‘does not involve a reduction in salary’. There is no identification in this sub-paragraph of a loss of entitlements, other than salary. As just mentioned, there was no reduction in salary.

[89] It seems to me that Mr Ryan’s major complaint is that in his 20 years experience, he has never worked in what he now regards as purely a ‘call centre’ role. This is a rather odd, incongruous submission, given the role Mr Ryan had prior to obtaining the Building Support Consultant’s role was primarily office and phone based work and that even the Building Support Consultant role involved a significant proportion of office based work. The truth is that in both jobs, Mr Ryan has to deal with customers and stakeholders. The difference was that as an Assessor-Home, he is not dealing with them ‘face to face’. I cannot comprehend how that might be said to be materially different, such as requiring a different set of skills or expertise. I agree with the respondent’s submission that while the duties required for the two positions were different (albeit only marginally), the real question is whether the skills and competencies required were different. I think not. Perhaps it is more a case of Mr Ryan just preferring to deal with customers directly, and not over the phone. Nevertheless, I do not consider the Union’s submissions in this respect to be an appropriate, legitimate or reasonable basis for refusing the alternative position.

[90] Mr Ryan also argues he has lost autonomy in his new role such as to be able to organise his work and breaks to accommodate his medical restrictions. In my view again, there is no sound basis for refusing the Assessor-Home’s role simply because he may have lost a certain freedom or autonomy to organise his work to suit his needs. I hazard a guess that Mr Ryan simply does not like the greater level of direct control and supervision, an office type environment obviously lends itself to. This cannot be a basis for refusing the new role. In my view, while I accept the respondent’s submission that Mr Ryan is a very capable employee with a good work record, some of his more curious ‘out of character’ reactions to the restructure’s effect on him (including threatening to go to the media) bear all the hallmarks of a person simply unhappy with and not liking his new role. As stated earlier, this is not a relevant consideration as to whether a redeployed position is a ‘suitable alternative position’.

[91] It was also implied that Mr Ryan was being set up to fail so that the respondent could discipline him and ultimately dismiss him. There was no evidence to support such a proposition. It merely represents a hypothetical opinion Mr Ryan has brought to bear to justify his arguments in this case. In any event, the wording of cl 7.6 only requires being able to perform the new functions to a ‘reasonable standard’. While I accept that this assessment would be a ‘judgement call’ of management, it is hardly an onerous hurdle to overcome. In any event, if such an assessment was made unfairly, capriciously or with mala fide intent, Mr Ryan would have recourse to other provisions of the Act in respect to remedy. Moreover, I note that the respondent has offered Mr Ryan training as to any aspect of the new role he feels less confident about performing. This opportunity should not be rejected or squandered.

[92] I also detect that Mr Ryan felt aggrieved by having unsuccessfully applied for more senior roles. While I understand and appreciate Mr Ryan’s disappointment in this respect, ‘suitable alternative employment’ does not mean a more senior role. There is no doubt, in my mind, that the respondent values Mr Ryan’s work and experience, but did not consider him suitable for a more senior role at this time. This does not mean he should not aspire to promotion and he should actively do so in the future. However, that he was denied a more senior role at this stage, is not a basis for refusing an otherwise ‘suitable alternative position’.

[93] Perhaps of more significance to the applicant’s case is his medical restrictions. The respondent has, in my view, made genuine and appropriate attempts to address his doctor’s concerns. He is not required to remain seated for hours on end and has been provided with a wireless headset, so he can move around and stretch. These adjustments address Prof. Ghabrial’s concerns as expressed in para [20] above. In any event, I accept that the respondent will continue to monitor Mr Ryan’s medical conditions and make further adjustments, should they be necessary and reasonably able to be accommodated.

[94] Having carefully weighed all of Mr Ryan’s concerns as to his new Assessor-Home role, I am unable to draw a conclusion that it is not a ‘suitable alternative position’. Accordingly, there can be no basis for finding that IAG has not complied with the relevant terms of the Agreement and, in the result, there are no grounds for making the determination sought by the Union (see para [3]) above.

[95] The matter is concluded on that basis.

DEPUTY PRESIDENT

Appearances:

Mr D Peddie and Mr N Singh of the Finance Sector Union of Australia for the applicant.

Ms L Dowling for the respondent.

Hearing details:

2014:

Sydney

10 October.

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