Nigel Brooks v Broadspectrum Australia Pty Ltd

[2018] FWC 3483

[2018] FWC 3483

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nigel Brooks
v
Broadspectrum Australia Pty Ltd
(U2017/13514)

DEPUTY PRESIDENT KOVACIC CANBERRA, 14 JUNE 2018

Application for relief from unfair dismissal – jurisdictional objection: dismissal was a case of genuine redundancy – dismissal found to be a genuine redundancy – application dismissed.

[1] The National Union of Workers (NUW) representing Mr Nigel Brooks (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 19 December 2017 alleging that Mr Brooks had been unfairly dismissed by Broadspectrum Australia Pty Ltd (Broadspectrum – the Respondent) on 8 December 2017.

[2] In its Form F3 – Employer Response to Unfair Dismissal Application the Respondent Broadspectrum raised a jurisdictional objection to Mr Brooks’ application, stating that his dismissal was a case of genuine redundancy.

[3] The application was heard on 26 April 2018. At the hearing Mr Matt Toner, a NUW Industrial Officer, appeared for Mr Brooks, while Mr Peter McNulty appeared with permission for the Respondent. Mr Brooks and Messrs Peter Mackintosh and Tony Clarke, both of who are employees of the Respondent and worked with Mr Brooks, all gave evidence for the Applicant. Mr Clarke was not required for cross-examination while Mr Mackintosh was sworn in but was not cross-examined by the Respondent. Mr Lindsay Morton, the Respondent’s National Manager Transport, Airfield Support Operations, Retail Stores and Petrol, Oil and Lubricant Defence Base Services; Mr Christopher Hicks, the Respondent’s Regional Manager for Retail Stores, Petrol, Oil and Lubricant Services for Northern NSW Region (which includes Canberra); and Ms Connie Carson, a Human Resources Business Partner with the Respondent, all gave evidence for the Respondent.

[4] For the reasons set out below I have found that Mr Brooks’ dismissal was a case of genuine redundancy. Accordingly, Mr Brooks cannot have been unfairly dismissed and his application will therefore be dismissed.

Background

[5] The Respondent has a contract with the Department of Defence (DOD) to provide stores and field support services at locations around Australia. Mr Brooks was employed by the Respondent from November 2014 to 8 December 2017 at its Duntroon site in the ACT as a Level 3 Stores Warehousing Supervisor/Senior Administration under the Transfield Services Defence Stores ACT Agreement 2014 1 (the Agreement). Mr Brooks had performed a near identical role with previous contractors and in total had performed similar roles at the site since around January 2000.

[6] On 22 August 2017 the Respondent announced that it intended to restructure its workforce at the Duntroon site and entered into a period of consultation with employees and the NUW in accordance with the Agreement. Throughout those consultations, the Respondent indicated that it intended to make up to five storeperson positions redundant while creating three new Team Leader positions and one new Planner position.

[7] Around mid-September 2017 the Respondent advertised the Team Leader and Planner positions. It is not disputed that Mr Brooks applied for the Planner position and that he was considered for both the Team Leader and Planner roles. However the Respondent contends that it did not receive an application from Mr Brooks for the Team Leader positions. Mr Brooks was in mid-October advised that he was not successful in obtaining any of the positions which he applied for.

[8] On 25 October 2017 the Respondent announced that three employees would be made redundant at the Duntroon site. Mr Brooks was one of those three employees. Also on that day Mr Hicks and Ms Carson met with Mr Brooks to advise him that he was to be made redundant. At that meeting Mr Brooks was handed a copy of the termination letter which included the following:

“Dear Nigel

Termination of employment due to redundancy

As discussed with you on 22 August 2017 our business and our client require us to continually review our structure to improve efficiencies and streamline our service delivery.

Arising from this requirement we have reviewed the current composition of our workforce and the company has made the decision to closer align the physical locations of our teams with the services we are providing, primarily with regards to delivery of Field Support. This decision has resulted in structural changes that will impact our operations at Duntroon and as communicated with you in August, will result in the reduction of up to 5 Storeperson positions whilst at the same time creating up to 3 new Team Leader Positions and 1 New Planner position.

The recruitment and selection process for the new roles has been completed and we are now required to proceed with the reduction of the storeperson positions, resulting in redundancies.

In order to select employees for redundancy, the company has undertaken an assessment and selection process and unfortunately, you have been selected for redundancy.

This letter serves as five weeks’ notice resulting in your termination of employment due to redundancy being effective as of 1 December 2017. You will be required to work your notice period.

Broadspectrum has sought internal redeployment opportunities within the company, however unfortunately at this stage no alternative roles have been identified. Broadspectrum will however, continue to seek redeployment opportunities for you, up to and including your termination date. To assist with this process, please complete the Redeployment Questionnaire provided to you with this letter and return this to HR Business Partner Connie Carson at your earliest convenience.” 2

[9] On 26 October 2017 Ms Carson sent an email to Mr Brooks in the following terms:

“Hi Nigel

Thank you for your time yesterday. As discussed, please see attached your redundancy documentation. I have also attached a copy of Broadspectrum’s current vacancies for your review, should you wish to apply for any of these positions please do so via the Broadspectrum careers page and notify myself of your application. As discussed in the meeting, we will continue to seek redeployment opportunities for you within the organisation up to and including 1 December, if you would like to complete the Redeployment Questionnaire and return a copy to myself this will assist with determining suitable roles for you.

…

If you have any questions or concerns please do not hesitate to contact me.” 3

[10] Attached to Ms Carson’s email was a list of vacant positions across the Respondent’s enterprise. That vacancy list included several vacant storeperson positions outside the ACT.

[11] Ms Carson subsequently provided Mr Brooks with updated vacancy lists by email on 14, 20 and 28 November and 4 December 2017 4. The Planner position at Duntroon appeared in the vacancy lists attached to all but the 28 November 2017 email. Similarly, vacant storeperson positions appeared in the vacancy lists attached to the 14 and 20 November 2017 emails. Those vacant storeperson positions were all outside the ACT.

[12] On 17 November 2017 the NUW sent an email to Mr Morton asking that he provide specific details regarding the efforts taken to redeploy Mr Brooks and another NUW member. Also in that email the NUW stated that it did not believe that Broadspectrum had taken every possible step to redeploy Mr Brooks and the other member and that it felt that outside factors influenced the decision to terminate their employment 5. Mr Morton responded to that email on 22 November 2017 as follows:

“Mr Brooks and … were invited to apply and be considered for all available positions under recruitment at ACT Duntroon within the Defence Base Services contract. These opportunities included the Supervisor, Planner and Leading Hand positions. Mr Brooks and … were assessed as not competitive for these positions. Broadspectrum considered opportunities in other contracts held within the ACT however no positions have become available at this time.

The assessment of all staff impacted by the restructure was undertaken in a fair and equitable basis taking into consideration a range of factors including but not limited to the experience in supporting field activities, knowledge, performance, safety, conduct, initiative and teamwork. Mr Brooks and … received lower ratings overall than other Employees hence were made redundant along with a third Employee.

Broadspectrum can only act on actual vacancies and also take into consideration further opportunities to improve the efficiency and cost effectiveness of service delivery across the contract. Currently no vacancies exist that either Mr Brooks or … could be provided excepting for the Planner position which they have been assessed as not suitable nor capable of meeting all requirements...

Should an opportunity arise prior to the redundancies taking effect then all redundant employees will be considered for the position with consideration being in the order of merit of assessment. Both Mr Brooks and … have been provided with, and will continue to be provided with, the positions vacant within the broader business providing them with an opportunity to express an interest in any vacant roles.” 6

[13] On 21 November 2017 Mr Brooks was advised that his termination date would be pushed back to 8 December 2017 7.

[14] On 5 December 2017 Mr Brooks sent the following email to Ms Carson:

“Can you please provide An [sic] update as to the Planners position in Canberra, as I have applied for this position twice now and have not yet had any other feedback other than my application was received by…” 8

[15] Ms Carson responded late on 6 December 2017 indicating that she would like to give Mr Brooks a call to discuss his email and asking him to confirm his mobile phone number 9. Mr Brooks responded early the following morning10.

[16] After speaking with Mr Brooks on 7 December 2017 Ms Carson sent the following email to Mr Morton and Mr Hicks among others.

“Hi All

Please be advised I have spoken with Nigel this morning in response to his email below. In summary I advised him of the following:

•  I outlined that he was not successful in being shortlisted for the position, as he was not successful in the first round of interviews

•  This was based on a review of the interview notes and assessment of his scores from the interview panel

•  I apologised for the delay in him receiving this feedback and informed him that there was a miscommunication between the recruitment team and operations

•  Nigel then advised me that he felt the redundancy was a personal vendetta against him and that he had reported fraud and other activities in the past however nothing was ever done about it.

•  I reminded Nigel of the approach that was undertaken to determine which employees would be impacted and assured him that it was not a personal vendetta

•  I advised Nigel that I am not aware of the complaints made in the past, however if he wishes to lodge a formal grievance he should do so in writing to myself to ensure that it can be appropriately investigated.

•  Nigel was grateful for this feedback” 11

[17] Mr Brooks was dismissed on 8 December 2017.

The Applicant’s case

[18] In summary, Mr Brooks contended that it was reasonable in all the circumstances for the Respondent to redeploy him and that therefore his dismissal was not a case of genuine redundancy. Mr Brooks also contended that his dismissal was harsh, unjust and unreasonable.

[19] In respect of whether his dismissal was a case of genuine redundancy, Mr Brooks submitted that the decisions in Ulan Coal Mines Limited v A. Honeysett and others (Ulan) 12 and Technical and Further Education Commission (t/as TAFE NSW) v Pykett13 made it quite clear that the obligation is on the employer to redeploy an employee. Mr Brooks further submitted that there was no obligation on an employee to find a suitable job, apply for it and then compete with others for it and that the existence of these circumstances tended to demonstrate that the dismissal was not a case of genuine redundancy. Mr Brooks posited that the Respondent’s submissions acknowledged that there were positions available within its enterprise. Mr Brooks further posited that the emails of 14, 20 and 28 November and 4 December 2017 demonstrated this and that despite the numerous available positions identified by the Respondent in those emails it took no steps to identify which work he could have performed and made no offers of redeployment to him. This he noted was despite the fact that he had completed the redeployment questionnaire and had indicated to Ms Carson by phone that he was willing to consider positions outside the ACT.

[20] Mr Brooks also submitted that he should have been redeployed into one of the Team Leader roles as he had more knowledge, skills and experience than the persons that were appointed to the positions and that the Respondent had failed to comprehensively explain why he was not successful for those positions.

[21] As to the Planner position, Mr Brooks contended that:

•  the position requirements as outlined in the job advertisement incorporated those already performed by Field Team Leaders, a position which he had previously performed;

•  the Respondent had never had any discussions with him about areas where he may not have met the position requirements and whether he could undertake training to address those alleged deficiencies; and

•  he had been interviewed for both the Team Leader and Planner roles but that the Respondent had merely “gone through the motions” in interviewing him.

[22] With regard to the various emails sent to Mr Brooks by Ms Carson with vacancy lists attached, Mr Brooks contended that no adverse inferences could be made about his interest in those roles for a number of reasons, including that Ms Carson’s email of 14 November 2017 indicated that the Planner and Team Leader roles were still vacant. Mr Brooks submitted that as he remained of the view that he had the relevant skills and experience to successfully obtain the Planner position he did not indicate an interest in other positions.

[23] Mr Brooks considered that there were other positions or jobs within the Respondent’s enterprise to which it would have been reasonable in all the circumstances to redeploy him to. Those jobs included the Team Leader and the Planner positions at the Duntroon site and several storeperson roles outside the ACT which were available at the time of his dismissal. Mr Brooks further submitted that had redeployment been offered within the ACT he would have accepted it and had it been offered outside the ACT he would have seriously considered the offer.

[24] At the hearing Mr Brooks relied on his written submissions. More specifically, Mr Brooks posited that this matter focussed on the narrow issue of whether it would have been reasonable in all the circumstances for him to have been redeployed within the Respondent’s enterprise, contending that the answer to that question was yes. Drawing on the decision in Ulan, Mr Brooks also submitted that there was a clear difference between sending vacancies to an employee and redeploying the employee. Among other things, Mr Brooks also highlighted that the selection criteria used in the Employee Assessment Process were very vague and subjective, adding that both Mr Munro and Mr Barrington who oversaw that Process had issues with him. As to remedy, Mr Brooks sought reinstatement with an order for continuity of service and the payment of lost wages.

[25] Mr Brooks provided two witness statements 14. Key aspects of those statements were that:

•  in August 2017 the Respondent announced that it intended to restructure the workforce at its Duntroon site;

•  the Respondent did not agree to a NUW proposal that employees be given the opportunity to express an interest in voluntary redundancy before any employee was made involuntarily redundant;

•  on 24 August 2017 the Respondent issued an Employee Information Bulletin which set out the criteria against which employees would be assessed for the purposes of determining who would be selected for redundancy;

•  he understood the Employee Assessment Process was conducted in late August but did not have any input into the assessment;

•  he believed that he would not have been selected for redundancy had the Respondent used objective selection criteria which properly took into account employees’ skills, qualifications and experience;

•  he applied for the new Team Leader and Planner positions but was unsuccessful, adding that he was not provided any feedback as to why he was not offered any of those positions;

•  he felt that the interview panel for the Planner position, i.e. Mr Hicks, Ms Carson and Mr Bob Field (Supervisor – Sydney West Region, Defence Base Service Contract with the Respondent), was simply going through the motions in interviewing him and that it had been pre-determined not to offer him any of the positions;

•  he believed that the staff members who were appointed to the Team Leader positions were less experienced and not as skilled or qualified as he was, adding that the Planner position was still vacant at the time of his dismissal;

•  he understood that there were roles almost identical to his role available at the Respondent’s DOD locations in Puckapunyal in Victoria and Canungra in Queensland;

•  he would of accepted a position interstate had it been offered to him;

•  he thought that he had the skills and experience to obtain one of the Team Leader positions or the Planner position and therefore did not go to great lengths to apply for the other vacant positions that were sent to him;

•  he recalled completing the Respondent’s Redeployment Questionnaire and giving it to a colleague who he understood would give it to management, adding that he was unsure as to whether or not that person had passed it on;

•  he told Ms Carson over the phone that he would be willing to consider positions outside the ACT;

•  he was deployed to Whyalla in South Australia between 20 November and 2 December 2017 during which time he did not have access to his work email account, adding that on his return to Canberra he was unable to access his work email account until the afternoon of 7 December 2017 due to work pressures; and

•  it was not until he accessed his work email account on the afternoon of 7 December 2017 that he saw Ms Carson’s emails of 20 and 28 November and 4 December 2017 advising him of job vacancies with the Respondent, adding that he did not respond to those emails as the next day was his last day.

[26] In his oral evidence Mr Brooks reiterated aspects of his witness statements and attested inter alia that:

•  he did lodge an application for the Team Leader positions, though he was unable to find a copy of his application;

•  he did not confirm with the Respondent that it had received his completed redeployment questionnaire;

•  at the time of the 14 November 2017 email he was aware that he had not been successful in obtaining the Planner position but had received no definitive advice regarding the Team Leader positions, adding that at that time he was not interested in leaving the ACT;

•  having regard to the termination letter given to him on 25 October 2017 (see paragraph [8] above) it was reasonable to accept that he knew he had not been successful in obtaining one of the Team Leader positions;

•  he considered himself a “shoe-in” for appointment to one of the Team Leader positions or the Planner position;

•  until he was handed the redundancy letter he did not think he would be made redundant;

•  he did not apply for any other positions other than the Team Leader and Planner positions due to the fact that they were not local and he was not comfortable in relocating, reiterating that when he received Ms Carson’s email of 14 November 2017 he was not interested in leaving the ACT;

•  in hindsight he should have expressed an interest in jobs outside the ACT, adding that if he knew the search for a job (following the termination of his employment) would be so difficult that he would have considered a job move;

•  he could not recall when he had the conversation with Ms Carson in which he indicated that he was willing to move from the ACT;

•  he agreed that Broadspectrum had said it would seek redeployment opportunities up to and including the date of his termination and that he did not raise his wish to apply for any vacancies when he reviewed Ms Carson’s email of 4 December 2017;

•  he did not reply to Ms Carson’s emails of 26 October and 14 November 2017 because he felt the process had been constructed in a way to get rid of him, adding that he considered that Mr Morton had a personal vendetta against him and that he felt it was fruitless to respond to the emails as the decision had been made to get rid of him;

•  he had not entirely bought out of the process after he had been told he would be made redundant, noting that it was a difficult time for him;

•  he had accessed the 4 December 2017 vacancy list which had been emailed to him before 7 December 2017 given that he responded to Ms Carson’s email on 5 December 2017 (see paragraph [14] above); and

•  if he had been offered a job straight up it would have been a serious consideration.

[27] Mr Macintosh and Mr Clarke deposed in their witness statements 15 that they believed that Mr Brooks was suitable for the Planner and Team Leader roles. I attach little weight to their evidence in this regard as they had no insight into the attributes which applicants required to succeed in those roles.

The Respondent’s case

[28] The Respondent submitted that it made all reasonable attempts to redeploy Mr Brooks into a suitable alternative role and highlighted that Mr Brooks expressed no interest in advertised roles at locations outside the ACT.

[29] The Respondent also submitted that Mr Brooks was interviewed for both the Team Leader and Planner positions but in respect of the former positions was ranked below other internal candidates and therefore unsuccessful. Mr Brooks was also assessed as unsuitable for the Planner position as he scored average or below average against the required selection criteria. Further, it was determined that Mr Brooks did not hold the required supervisory skills to undertake the position. The Respondent further submitted that whilst retraining for Mr Brooks was considered it was determined not to be a viable option given the significant gap in the requirements for the position and Mr Brooks’ skills and the strategic importance of the role to the long-term success of the contract with the DOD. The Respondent maintained that following the interview process Mr Hicks contacted Mr Brooks directly and provided feedback as to why he was unsuccessful.

[30] Beyond that, the Respondent submitted that:

•  it did not decide which employees would be made redundant until the completion of the recruitment process on 20 October 2017 when the final review of the assessment and selection process took place;

•  the Planner position was not filled at that time as all of the applicants who were interviewed did not meet the required criteria nor did they possess the required levels of technical competencies critical to the position;

•  at no stage during the consultation process did Mr Brooks indicate or express an interest in any roles located outside the ACT nor did he respond to any of the emails providing vacancy lists with an expression of interest for the vacant roles; and

•  at no time did it state that Mr Brooks had been selected for redundancy due to his performance, though it acknowledged that he had been informed that he fell within the lowest scoring quartile in the Employee Assessment Process.

[31] With regard to the merits of Mr Brooks’ unfair dismissal application, the Respondent noted among other things that on 21 October 2016 Mr Brooks received a first and final written warning for serious misconduct and on 17 November 2017 received a further written warning in relation to a safety incident in which he was involved. Also in November 2017 Mr Brooks was involved in a separate serious safety incident whilst working on assignment in South Australia. The Respondent submitted that Mr Brooks was interviewed as part of an incident investigation with the investigation finding that Mr Brooks was at fault. However no disciplinary action was taken as Mr Brooks had already ceased employment due to redundancy at the time the investigation concluded.

[32] In its oral submissions the Respondent contended that Mr Brooks’ dismissal was a case of genuine redundancy because it would not have been reasonable in all the circumstances for it to redeploy Mr Brooks within its enterprise. The Respondent also rebutted aspects of Mr Brooks’ submissions and evidence. For example, the Respondent contended that Mr Brooks’ evidence that he would have considered a position outside the ACT lacked credibility. The Respondent also submitted among other things that Mr Brooks’ unsuitability for the Planner position had not been challenged and highlighted Mr Hick’s and Ms Carson’s evidence that retraining would not have enabled Mr Brooks to successfully perform that role in a reasonable period. In doing so the Respondent characterised Mr Brooks’ storeperson role as a “blue collar role” while the Planner position was a “white collar role”. In its submissions, the Respondent drew on the decisions in Ulan and Mr Justin Fisher and others v Downer EDI Mining Pty Ltd (Fisher) 16.

[33] As to remedy, the Respondent submitted that reinstatement was not appropriate, particularly in circumstances where the investigation report into the safety incident in South Australia in November 2017 had concluded that a significant safety breach had occurred. The Respondent further submitted regarding remedy that any compensation which the Commission might award should be minimal.

[34] Ms Carson provided two witness statements 17. In her first witness statement, Ms Carson set out the chronology of events leading up to Mr Brooks’ dismissal on 8 December 2017 whilst in her second witness statement she provided further detail in respect of aspects of those events. Key aspects of her witness statements were that:

•  the Respondent in late August 2017 initiated the consultation process regarding the proposed restructure to take place at the Duntroon site in accordance with the Agreement;

•  around mid-September 2017 the Respondent advertised the Planner and Team Leader positions, with all employees at the Duntroon site provided with an Employee Information Bulletin on 13 September 2017 which detailed the advertised positions and encouraged employees to apply;

•  Mr Brooks was interviewed for the positions on 10 October 2017;

•  three internal candidates were appointed to the Team Leader positions;

•  Mr Brooks was not appointed to a Team Leader position as he was ranked below the other internal candidates;

•  Mr Brooks was also unsuccessful in seeking appointment to the Planner position as he did not demonstrate that he had the strategic understanding and required technical competencies essential for the position, adding that Mr Brooks also did not demonstrate that he had the required management capabilities resulting in him receiving a below average or average score against the selection criteria;

•  retraining for Mr Brooks was considered but given the seniority of the Planner position and its strategic importance it was determined that this was not a viable option;

•  Mr Brooks was subsequently identified as one of three employees who would be made redundant;

•  Mr Brooks was advised of this in a meeting with Mr Hicks and herself on 25 October 2017;

•  at that meeting she informed Mr Brooks that the Respondent would commence the redeployment process and requested that Mr Brooks complete the redeployment questionnaire and review a copy of the vacancy list that was provided to him, adding that she also asked Mr Brooks to advise her should there be any positions that he would like to consider for redeployment outside of the ACT;

•  following that meeting she provided Mr Brooks with an electronic copy of the documents handed to him at the meeting;

•  at no stage during the consultation process was Mr Brooks informed that his redundancy was due to his performance, though he was informed that his role had been impacted as he fell within the lower scoring quartile in the employee assessment process;

•  Mr Brooks did not complete the redeployment questionnaire;

•  she emailed all potentially redundant employees updated company vacancy lists on 14, 20 and 28 November and 4 December 2017;

•  Mr Brooks did not express any interest in redeployment opportunities in respect of the positions shown on the vacancy lists;

•  on 7 December 2017 she returned a call from Mr Brooks during which, in response to a question from him, she confirmed that he had been unsuccessful in obtaining the Planner position;

•  at no time during that phone conversation did Mr Brooks indicate to her that he was interested in positions outside the ACT or discuss redeployment;

•  also during that phone conversation Mr Brooks indicated that he felt the Respondent had a personal vendetta against him, adding that she tried to reassure him that this was not the case;

•  she was not aware that Mr Brooks did not have access to his Defence email account while he was deployed in the field from 20 November to 4 December 2017, adding that she did not receive an out of office reply from Mr Brooks indicating that he was unable to access his emails during this period; and

•  she considered the lack of response from Mr Brooks regarding the redeployment questionnaire and his failure to contact her to discuss positions outside the ACT as indicating that he was not interested in any positions outside the ACT.

[35] In her oral evidence Ms Carson attested inter alia that:

•  the Respondent tried to keep the recruitment process for the Team Leader and Planner positions and the redundancy process separate;

•  she disagreed that the Respondent was going through the motions when it interviewed Mr Brooks or that it had already made the decision not to offer him a Team Leader position;

•  she never received a redeployment questionnaire completed by Mr Brooks;

•  Mr Brooks had never indicated to her that he was willing to move interstate, adding that she had no recollection of Mr Brooks mentioning interstate roles during their phone conversation on 7 December 2017;

•  she agreed that the criteria used as part of the Employee Assessment Process were subjective measures, later adding that employees were aware of those criteria and had provided no comments on them when invited to do so;

•  the Employee Assessment Process involved several steps, with the initial step being an assessment by Mr Barrington and Mr Munro (both of whom were Supervisors with the Respondent who were familiar with the Duntroon site) followed by a review by Mr Hicks and Ms Carson who in turn had a conversation with Mr Morton and Mr Matthew Cook (the Respondent’s Human Resources Manager for NSW, Victoria and Tasmania) regarding the outcome, with both of the steps after the initial assessment designed to mitigate against any bias in the assessment of employees;

•  whilst the Team Leader and Planner positions were very different they had similar requirements which was why the same interview questions were relevant;

•  the Respondent had considered retraining for Mr Brooks in respect of the Planner position but did not discuss the issue with him;

•  there were a number of positions in the various vacancy lists which Mr Brooks would have been suitable for, later adding that Mr Brooks had not been directly offered any storeperson positions as he had not completed the redeployment questionnaire nor provided any feedback in respect of the various vacancy lists; and

•  over the period September to December 2017 she was involved in redundancies involving over 100 employees, adding that redeployment opportunities had to be considered for those other employees as well and that it was possible that some of those employees would also have wanted to be considered for vacant storeperson positions.

[36] Mr Hicks also provided two witness statements 18. In those statements Mr Hicks provided an overview of the background to the restructure at the Duntroon site and the consultation process undertaken with affected employees. Among other things, Mr Hicks deposed that there were three Team Leader positions that were filled by internal applicants, with the successful candidates ranked above Mr Brooks in the evaluation process. As to the Planner position, Mr Hicks deposed that Mr Brooks was interviewed for the position on 10 October 2017 but failed to display the level of professionalism and management focus required to fill the role. Mr Hicks also deposed that it was not deemed feasible to train or up skill Mr Brooks to deliver the outcomes required of the Planner position. While Mr Hicks acknowledged that Mr Brooks had worked in this field within the DOD for many years under a number of contracts, his evidence was that Mr Brooks’ experience had not provided him with the strategic acumen to fill the Planner position. Mr Hicks further deposed that he advised Mr Brooks shortly after the final decision was made regarding the Planner position on 16 October 2017 that he had been unsuccessful. Mr Hicks stated that he essentially outlined that the target for the role needed strengths in the areas of innovation and ‘better ways’ and strong management and communication skills, adding that Mr Brooks had not performed well in these areas at interview.

[37] Beyond this Mr Hicks deposed that:

•  on the day staff were notified of their selection for redundancy they were provided with the Respondent’s redeployment pack which gave them the opportunity to be included as a priority for any open positions elsewhere within the business; and

•  to the best of his knowledge Mr Brooks did not complete the paperwork and return it to the Human Resources representative nor did he at any time make any effort to enquire about any positions in Queensland or any other location.

[38] In his oral evidence Mr Hicks attested among other things that:

•  no employees were declared redundant prior to the end of the recruitment process;

•  the redundancy process was not a convenient way to get rid of Mr Brooks;

•  he was involved in the decision as to who undertook the Employee Assessment Process, adding that he was not aware that Mr Munro had issues with Mr Brooks that would have impacted on his assessment of Mr Brooks;

•  he believed the criteria used in the Employee Assessment Process were capable of objective measurement or assessment, adding that in respect of safety for instance measures such as an employee’s engagement in tool box talks, safety record and ability to identify hazards in the workplace were all measures capable of objective measurement;

•  he disagreed that internal applicants were not given any preference over external candidates, stating that to the best of his knowledge two Team Leader positions had only been advertised internally;

•  he did not recall saying to Mr Brooks that he was selected for redundancy due to his performance;

•  when Mr Brooks was redeployed to Whyalla he was required to move between Edinburgh and Whyalla and would have had access to his work email account at the Edinburgh base; and

•  Mr Brooks never expressed to him interest in any vacant jobs or jobs outside the ACT.

[39] Mr Morton provided two witness statements 19 in which he provided an overview of the services which the Respondent provides to the DOD and the outcome of the review of the field support service delivery model. Specifically, Mr Morton deposed that the review identified the need to restructure the ACT workforce and that the proposed restructure would address cost drivers and inefficiencies by establishing a dedicated Planner and several Team Leader positions resulting in improved management and control. Mr Morton stated that the restructure involved the possible reduction of up to five storeperson positions and the creation of up to three new Team Leader positions and a new Planner position. Mr Morton further deposed that approval to proceed with the restructure proposal was provided on 16 August 2017 with both employees and the NUW advised of the proposed restructure on 22 August 2017. Mr Morton said a decision was made to proceed with the restructure on 30 August 2017 after having regard to the feedback provided by employees. Mr Morton deposed that impacted employees were given preference for the Team Leader positions and also considered for the Planner and other positions. With regard to the Planner position, Mr Morton deposed that as a change in culture was required by all parties, a strong candidate able to influence and perform at the required level was vital to the success of the restructure.

[40] In his oral evidence Mr Morton attested that he had no issues or run ins with Mr Brooks, adding that he had no reason to have anything against Mr Brooks. Mr Morton also highlighted the difference between the Planner role and that of a storeperson, describing the Planner position as a senior position requiring the incumbent to work with the client to plan and coordinate activities whereas a storeperson’s role was about physical execution on the ground. More particularly, Mr Morton attested that the Planner was not required to execute on the ground and in terms of attributes was required to have a good understanding of military operations and business and commercial acumen, particularly in terms of balancing contractual versus customer requirements. The Planner was also required to interface with senior levels of the DOD regarding planning and innovation. Beyond this Mr Morton:

•  described his role in the recruitment process as one of review in that he only saw the paperwork for the preferred candidates for the Supervisor, Team Leader and Planner roles;

•  stated that he did not take an active role in the Employee Assessment Process, adding that he was presented with a list of names and their assessment and that he had no concerns with the process;

•  rejected the proposition that the whole process was rigged from the start to get rid of Mr Brooks; and

•  attested that the Employee Assessment Process had no relationship to the recruitment process.

The statutory framework

[41] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Mr Brooks is a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are therefore ss. 385 and 389 which provide as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

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

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.

[42] There is no dispute that Mr Brooks was dismissed, so s.385(a) of the Act is satisfied. Mr Brooks contends that his dismissal was harsh, unjust or unreasonable, so s.385(b) is relevant. The Respondent is not a small business employer, therefore s.385(c) is not relevant. The Respondent contends that the termination is a case of genuine redundancy, so s.385(d) applies. Therefore, in determining whether Mr Brooks was unfairly dismissed, I must first consider whether his dismissal was a case of genuine redundancy as per s.385(d) and s.389 of the Act. If so, the dismissal was fair and his application will be dismissed. If not, I will then need to determine whether Mr Brooks’ dismissal was harsh unjust or unreasonable.

Consideration of the issues

[43] In this case it is not disputed that the Respondent complied with its consultation obligations under the Agreement or that the Respondent no longer required Mr Brooks’ job to be performed by anyone because of changes in its operational requirements. However, what is disputed is whether it would have been reasonable in all the circumstances for Mr Brooks to have been redeployed within the Respondent’s enterprise as per s.389(2)(a) of the Act .

[44] The Full Bench in Ulan considered the interpretation and operation of s.389(2) of the Act stating as follows:

“[26] First, s.389(2) must be seen in its full context. It only applies when there has been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer’s capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.

…

[28] Thirdly, the question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal … The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.

…

[31] … The Commissioner also found no evidence that any of the relevant employees would have been unwilling to be redeployed to one of the other mines. It must be said that all of the evidence was not one way on this issue and, as Ulan’s submissions indicate, some of the employees in particular did not display a great deal of energy in following up on vacancies which Ulan brought to their attention. Nevertheless we think it was open to the Commissioner to find that if offered redeployment they would have accepted it.

…

[33] In relation to the appeal by Messrs Murray, M. Butler and C. Butler, we note that in each case the Commissioner found that the employees were not interested in taking up a job far from where they lived. Accordingly he found that it would not have been reasonable for them to have been redeployed to any of the associated entities. These findings also were open on the evidence and did not involve any error in interpretation of the section.

[34] It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.” 20 (Underlining added)

[45] In this case the evidence indicates that:

•  Mr Brooks was assessed as not suitable for appointment to any of the Team Leader positions or the Planner position;

•  Mr Brooks did not apply for any other positions within the Respondent’s business;

•  conversely, the Respondent did not offer Mr Brooks another position in the business;

•  at the time of Mr Brooks’ dismissal there were no vacant storeperson jobs listed in the most recent vacancy list which was forwarded to him on 4 December 2017, though the Planner position appeared on that vacancy list;

•  Mr Brooks was advised by Ms Carson during their phone conversation on 7 December 2017 that his second application for the Planner position had been unsuccessful; and

•  the Planner position was a more senior role than Mr Brooks’ storeperson position with that reflected inter alia in the remuneration attaching to the Planner position which was some $15,000 above Mr Brooks’ annual wage under the Agreement.

[46] As noted in Ulan the question of whether redeployment would have been reasonable is to be applied at the time of the dismissal. As noted above, the vacancy list forwarded to Mr Brooks on 4 December 2017 did not list any vacant storeperson roles in the Respondent’s business. In the absence of Mr Brooks identifying any other positions listed in that vacancy list as positions to which he could have been redeployed or which he was interested in, the question which the Commission needs to determine is whether it would have been reasonable to redeploy Mr Brooks to the Planner position. Mr Morton’s evidence was in essence that the Planner role was both more senior and different to that of Mr Brooks’ substantive role as a senior storeperson and that the remuneration for the Planner position was $15,000 above Mr Brooks’ annual wage under the Agreement. A comparison of the relevant classification descriptor in the Agreement 21 and the key responsibilities and key experiences and skills for the Planner position as set out in the job advertisement22 is set out below.

LEVEL 3 STORES WAREHOUSING SUPERVISOR/SENIOR ADMINISTRATION

Planner (Logistics) – ACT job

Qualifications/Skills

An employee at this level has achieved all the competencies/qualifications of levels 1

and 2, and in addition:

● Responsible for the supervision of the overall service and proper conduct of employees in accordance with SSDS policy and contract service outcomes as specified by the relevant Statement of Work.

● Demonstrate a positive supportive attitude towards management and peers

● Other duties as directed from time to time within the Stores classification

● Certificate IV in management, or working towards completing

● Certificate III in Business Administration or equivalent

Key responsibilities includes (not limited to):

● Direct engagement with RMC Field Ex Operations Planning team

● Internal BRS Service Delivery Planning

● Manage Field Ex Communications

● Coordinating and Roster Field Support Staff

● Monitoring Service Delivery through the full ‘service delivery cycle’

● Cost monitoring, reporting and management

● Field stores associated SCA Management

● Field Ex Reporting

● Staff Management

Key Experiences & Skills

● Significant experience in delivery of Defence training and or contracted service delivery

● Minimum C class licence

● Hold and maintain a Defence Security Clearance

● Ability to access and operate MILIS

● Experience in either a Defence or Defence Contracted supervisory role.

● Demonstrated supervisory and organisational skills.

● Demonstrated experience in collaborative and consultative processes.

[47] The above comparison supports Mr Morton’s evidence that the roles are different, with the Planner position including several requirements not included in the Level 3 classification descriptor in the Agreement, e.g. cost monitoring, reporting and management and demonstrated supervisory and organisational skills.

[48] Further, Ms Carson’s evidence was that Mr Brooks did not demonstrate that he had the strategic understanding and required technical competencies essential for the Planner position, or that he had the required management capabilities. Similarly, Mr Hicks evidence was inter alia that Mr Brooks at the interview for the Planner position failed to display the level of professionalism and management focus required to fill the role and that despite Mr Brooks having worked in this field within the DOD for many years his experience had not provided him with the necessary strategic acumen for the position. Both Mr Hicks’ and Ms Carson’s evidence was that retraining for Mr Brooks had been considered but had been rejected. It was not disputed that the issue of retraining had not been discussed with Mr Brooks. Lastly, there is no material before me which leads me to question the validity of the interview panel’s conclusion that Mr Brooks was not suitable for appointment to the Planner position or that he could perform successfully perform the role with a reasonable period of training.

[49] While I accept that there were various vacant storeperson positions to which Mr Brooks could have been redeployed that appeared in the vacancy lists provided to him on 26 October and 14 and 20 November 2017, based on an examination of the vacancy list provided to Mr Brooks on 4 December 2017 there were no such vacant positions at the time of his dismissal. Further, Mr Brooks did not identify any such positions.

[50] As observed by Commissioner Cambridge in Fisher “The securing of reasonable redeployment involves the genuine and earnest approach of both employer and employee.” 23 While it is arguable that the Respondent could have and perhaps should have directly canvassed redeployment options with Mr Brooks, in circumstances where other than applying for the Team Leader and Planner positions Mr Brooks effectively did not engage in the redeployment process I am not sure that doing so would have made any difference. Also relevant in this regard is Mr Brooks’ evidence which was to the effect that for much of the period from when he was told he would be made redundant until the date of his dismissal he was not open to moving outside the ACT.

[51] Finally, I would note that where there is a conflict between Mr Brooks’ and Ms Carson’s evidence I have generally preferred the latter’s evidence because it was supported by other materials. For instance, Ms Carson’s evidence that Mr Brooks did not indicate in their phone conversation on 7 December 2017 that he was interested in positions outside the ACT is supported by her email of the same day to Messrs Morton and Hicks (see paragraph [16] above). Conversely, Mr Brooks did not adduce any evidence to support his claim that he completed the redeployment questionnaire and gave it to another employee to pass onto management.

[52] In summary, the above analysis does not support a finding that it would have been reasonable in all the circumstances for Mr Brooks to have been redeployed within the Respondent’s enterprise. As such, Mr Brooks’ dismissal was a case of genuine redundancy. As stated by the Full Bench in Ulan “if the dismissal is a case of genuine redundancy the employer has a complete defence to the application.” 24

[53] In those circumstances a more fulsome exploration of the submissions and evidence regarding the merits of Mr Brooks’ application is unnecessary.

Conclusion

[54] Having regard to all of the material before the Commission and for the reasons outlined above, I consider that Mr Brooks’ dismissal was a case of genuine redundancy. Accordingly, Mr Brooks cannot have been unfairly dismissed and his application will therefore be dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

Mr M. Toner for the Applicant

Mr P. McNulty for the Respondent

Hearing details:

2017

Canberra

April 26.

 1   AE412028

 2   Exhibit 9 at Attachment L

 3   Ibid

 4   Ibid at Attachments M-P

 5   Exhibit 16 at Attachment J

 6   Ibid

 7   Ibid at Attachment I

 8   Exhibit 9 at Attachment Q

 9   Ibid at Attachment R

 10   Ibid

 11   Ibid at Attachment S

 12 (2010) 199 IR 363

 13 (2014) 240 IR 130

 14   Exhibits 1 and 2

 15   Exhibits 5 and 6 respectively

 16   [2013] FWC 8020

 17   Exhibits 7 and 8

 18   Exhibits 10 and 11

 19   Exhibits 14 and 15

 20 (2010) 199 IR 363 at [26]-[34]

 21   AE412028 at clause 1 of Appendix 1

 22   Exhibit 1 at Attachment E

 23   Ibid at [77]

 24 (2010) 199 IR 363 at [26]

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