Ovina Noronha v Department of Veterans' Affairs

[2013] FWC 1299

[2013] FWC 1299

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ovina Noronha
v
Department of Veterans’ Affairs
(U2011/11599)

DEPUTY PRESIDENT BOOTH SYDNEY, 8 MAY 2013

Termination of employment - alleged unfair dismissal - jurisdiction - whether termination was a genuine redundancy.

Introduction

[1] In this matter Mrs Ovina Noronha makes application pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to the termination of her employment from the Department of Veterans’ Affairs (DVA), a Commonwealth Government department.

[2] A conciliation was conducted on 18 October 2011 but did not resolve the matter.

[3] From the time immediately following the conciliation Mrs Noronha has been self-represented and DVA have, from the outset, been represented by Jason Noakes, solicitor, Norton Rose Australia.

[4] On 9 November 2011, the matter was listed for arbitration on 6, 7, and 8 February 2012 and directions issued to the parties in relation to filing of submissions, any witness statements and other documentary material. On 5 December 2011, Mrs Noronha requested that the application be “put on hold” due to her state of health. This request was supported by her treating doctor who wrote to Fair Work Australia (FWA), as it then was, on 4 January 2012. The hearing of the application was adjourned and Mrs Noronha was advised on the same day that Senior Deputy President Acton, Termination of Employment Panel Head, as she then was, had determined that the matter not proceed until a medical certificate was provided confirming that she was mentally and physically able to proceed with the application. On 28 September 2012, Mr Noakes, representing DVA wrote to FWA seeking a conclusion of the matter by way of hearing or dismissal of proceedings. On 2 October 2012, FWA wrote to Mrs Noronha asking her how she would like to proceed to which Mrs Noronha responded by letter dated 15 October 2012, to the effect that she wished to proceed. Amongst the material supplied on that occasion was a medical certificate supporting her decision but indicating that the matter should be conducted in a form that Mrs Noronha could tolerate such as a review of documents or a hearing by telephone with Mrs Noronha in his consulting rooms or those of her psychologist.

[5] On 24 October 2012 Mrs Noronha’s application was allocated to me to determine. In their Employer’s Response to Application for Unfair Dismissal Remedy of 17 October 2011 DVA indicated a jurisdictional objection to the matter proceeding on its merits on the grounds that Mrs Noronha was not unfairly dismissed because the termination of her employment was a case of genuine redundancy. This is a threshold issue in the conduct of Mrs Noronha’s case and DVA have the onus of proof in relation to this contention.

[6] As a result of consultations between my Associate, Mrs Noronha and her treating doctor and Mr Noakes it was agreed that this jurisdictional objection made by DVA to the application be determined based upon written submissions made by DVA and Mrs Noronha, commonly referred to as being a consideration “on the papers”.

[7] DVA provided FWA and Mrs Noronha with written submissions with extensive attachments in support of their contentions on 5 December 2012, Mrs Noronha supplied her response on 17 January 2013 and DVA replied in writing on 25 January 2013.

[8] On 28 February 2013 my Associate wrote to the parties to seek further information by close of business on 6 March 2013. A request by DVA for an extension was agreed and a reply was received from DVA on 13 March 2013, from Mrs Noronha on 18 March 2013 and further correspondence was received from DVA on 19 March and 3 April 2013.

[9] The parties’ submissions and the supplementary material contained in correspondence has all been made available to both DVA and Mrs Noronha and this material along with Mrs Noronha’s Application for Unfair Dismissal Remedy and DVA’s Employer’s Response to Application for Unfair Dismissal Remedy are the entirety of the materials that I have relied upon in coming to my decision.

[10] This decision concerns only the question of whether her termination of employment was or was not a case of genuine redundancy within the meaning of the Act and to the extent that I refer to the merits of her case I do so only to assist the consideration of this question.

[11] DVA have a complete defence to Mrs Noronha’s application if it is found that the termination of her employment was a case of genuine redundancy. If I so find, her application must be dismissed. On the other hand, if I find that her termination of employment was a not case of genuine redundancy then her application may proceed to an argument on the merits.

Competing contentions

[12] In brief the competing contentions of the parties are as follows:

• DVA contend that the termination of Mrs Noronha’s employment is a case of genuine redundancy. It is their submission that as a result of the 2005 national reorganisation Mrs Noronha’s job was no longer required to be done and her substantive position was abolished. They say they properly consulted her and the extensive efforts they made in support of her redeployment would be considered reasonable for the purposes of the Act.



• Mrs Noronha contends that she is not genuinely redundant. She says her return to work placement, the fact that the duties she was performing are still being carried out by others and a reference to her having a position in DVA as at 15 March 2005 and 4 May 2009 support this contention. She says DVA have not complied with their obligation to consult her and DVA did not make reasonable efforts to redeploy her.

[13] DVA and Mrs Noronha supplied me with many of the same documents – reports, letters, emails and the like. However, they put forward different contentions based on these materials. I have drawn upon these materials to build up the factual matrix of this case upon which to draw my own conclusions about the merits of the competing contentions.

Factual circumstances

[14] Mrs Noronha commenced employment with DVA in 2001 working in a part time client service role in the Sydney office for 22.5 hours per week. Her area was called the Veteran Affairs’ Network (VAN) sitting within the Health & Corporate Branch and she was an APS4.

[15] In June 2003, she lodged a complaint regarding harassment in the workplace by co-workers and in September 2003 an investigation found that some of her complaints were proven.

[16] She commenced leave on 13 November 2003 on medical grounds.

[17] Comcare accepted liability for her condition, an Anxiety State, in July 2004.

[18] In 2005, while Mrs Noronha was on Workers’ Compensation leave, there was a reorganisation of the manner in which DVA conducted its service delivery operations. It was branded OneDVA and it involved changing from a State/location structure to a national structure, with national lines of business reporting to a national manager. Each work area was reviewed and functions were streamlined and consolidated. All client contact operations throughout the organisation were affected and that resulted in the reduction in a number of positions and a number of redundancies. The reorganisation involved a restructure of the VAN section in the Sydney office resulting in a reduction in the number of VAN/Client Contact employees and a number of positions at the APS3 and APS4 level being abolished. A communication strategy involving face to face group meetings, teleconferences, publication of material, and, where appropriate, individual meetings was undertaken by DVA.

[19] DVA submit that as a result of the reorganisation Mrs Noronha’s job was no longer required to be done and her substantive position did not exist following the 2005 reorganisation. Mrs Noronha disputes this conclusion. Mrs Noronha’s employment was not terminated at that time, DVA say, because she was absent from work on Workers’ Compensation leave. DVA submit that instead they were focussed on Mrs Noronha’s rehabilitation such that she could become fit for work and could then be considered for redeployment in DVA or elsewhere in the Australian Public Service (APS). There is considerable material before me to support that contention.

[20] Mrs Noronha remained on paid leave until 2007 when a return to work was attempted. This was unsuccessful as she was unable to enter the building for her work placement. She remained on leave until March 2009 when a return to work in the Corporate Service Centre was undertaken. This return to work was under strict conditions concerning the design of her work station. During this period Mrs Noronha says she experienced a number of incidents of harassment.

[21] On 15 September 2009 an incident occurred involving a work colleague approaching her work station and she made a complaint about it. Her complaint regarding this incident was independently investigated and her claim was not upheld.

[22] On 16 September 2009 she was placed on paid leave on the grounds that the physical environment within which she was working was about to be disrupted by renovations and her strict return to work conditions could not be supported.

[23] Following this resumption of leave DVA submit that they continued their efforts to support Mrs Noronha’s rehabilitation including the development of return to work plans by a case worker who had been assigned to her in January 2010 from the Commonwealth Rehabilitation Service (CRS). Material before me supports this submission.

[24] On 14 December 2009 a Medical Panel Assessment stated, “she is capable of working her pre-injury 22.5 hours per week but would not be appropriate for her to carry that out at the Department of Veterans’ Affairs”. Her psychiatrist and treating doctor agreed with this assessment. This was confirmed in a vocational assessment conducted on 16 June 2010 and reiterated by independent medical reviews in October 2011 and February 2011.

[25] On 21 May 2010 Ms Narelle Dota, Acting General Manager Corporate Division, wrote to Mrs Noronha and amongst other things advising her that the Secretary had agreed that she could be offered a Voluntary Redundancy.

[26] On 16 June 2010 a Vocational Assessment report was prepared by CRS to “establish alternative vocational options with a new employer”. It stated that “jobs within and external to the APS environment” were to be considered.

[27] On 14 July 2010 Ms Carolyn Spiers, Principal Legal Advisor, wrote to Mrs Noronha advising that the Secretary had, in response to her request for a review under s.33 of the Public Service Act1999, decided that an independent review would be undertaken to:

“(a) Examine the current culture, structure, working arrangements and working relationships within the New South Wales Office as it relates to your employment at that office including complaints of harassment, inappropriate behaviour and any performance or work issues arising as part of your return to work program; and

(b) Making findings and report on options to finalise all outstanding issues.”

[28] On 20 July 2010 Mrs Noronha’s treating doctor Dr Kafiris advised that she was fit to return to work under agreed restrictions on 37.5 hours per week.

[29] The report of the review by CPM Reviews was published on the basis of Staff-In-Confidence on 1 October 2010.

[30] In December 2010 Mr Roger Wizenberg National Manager People Services Group wrote on a number of occasions to Mrs Noronha indicating that the recommendations of a report regarding her employment prepared by CPM Reviews had been accepted by the Secretary, explaining the reorganisation that had taken place in 2005 while Mrs Noronha was on leave, the impact on her position and offering her the opportunity for a Voluntary Redundancy.

[31] Mrs Noronha was formally offered a voluntary redundancy package on 4 February 2011. The offer was open for one month but notwithstanding Mrs Noronha’s indications of interest to DVA in the offer it was not accepted within the period and a request for an extension of time to consider the offer was declined.

[32] As a result the “involuntary termination process” was triggered and Mrs Noronha entered a “retention” period on 5 March 2011 and her “employment would terminate no earlier than September 2011, unless she was redeployed within the Australian Public Service”.

[33] DVA say that during the retention period they took “reasonable steps” to redeploy Mrs Noronha but this was unsuccessful. These included CRS seeking to organise job seeking training to assist Mrs Noronha to return to work outside DVA and to clarify her return to work goals along with identification of suitable vacant positions. This submission is supported by materials before me.

[34] From 6 August 2011, when DVA was advised that Mrs Noronha was not well enough to proceed with a case conference to discuss her situation, DVA discontinued these efforts.

[35] DVA terminated Mrs Noronha’s employment by reason of redundancy effective from 22 September 2011.

The legal framework and its application to the factual circumstances

[36] The assessment of whether a person’s dismissal was a case of genuine redundancy must be undertaken against the requirements of s.389 of the Act which reads as follows:

“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.”

[37] In order to discharge their onus DVA must establish that:

• Ms Noronha’s job was no longer required to be performed by anyone because of changes in the operational requirements of DVA and,



• DVA have complied with any obligation in a modern award or enterprise agreement that applied to Ms Noronha’s employment to consult about the redundancy and,



• It would not have been reasonable in all the circumstances for Ms Noronha to be redeployed within DVA or the enterprise of an associated entity of DVA.

I will address each requirement in turn.

Mrs Noronha’s job was no longer required to be performed by anyone because of changes in the operational requirements of DVA

[38] The case generally regarded as being of assistance in understanding the meaning of the phrase “no longer required the person’s job to be performed by anyone” is the decision of the Full Bench in Ulan Coal Mines Limited v Howarth and others. 1 (Ulan Coal Mines)

[39] This was an appeal against a decision at first instance by a Commissioner in which the Commissioner found that the dismissals before him were not cases of genuine redundancy as defined in s.389 of the Act because, amongst other things, it was not the case that the Company no longer wanted the jobs of the Applicants to be performed by anyone.

[40] The Full Bench explained the circumstances of Ulan Coal Mines as follows:

“The evidence before the Commissioner was that in the first half of 2009 the Company conducted a review of operations at its underground coal mine near Mudgee in New South Wales. The object of the review was to improve the productivity and efficiency of the enterprise. As a result of the review, various changes were decided upon, including ‘reducing the number of employees, outsourcing ancillary and intermittent functions, increasing the proportion of employees with trades qualifications in underground crews and redistribution of labour.’ In consequence some 38 mineworker positions (19 fixed term positions and 19 permanent positions), 6 staff positions and 75 contractor positions were determined to be surplus to requirements. As a result of the desire of the Company to increase the proportion of mineworkers with trades qualifications on some underground work crews, there was a need to increase the trade-qualified mineworker positions at the mine by 11.”

[41] The Full Bench considered the words in the Explanatory Memorandum and came to a conclusion about their meaning. The Full Bench stated at paragraphs 16 and 17:

“The Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy:

‘1547 Paragraph 389(1) (a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548 The following are possible examples of a change in the operational requirements of an enterprise:

• a machine is now available to do the job performed by the employee;



• the employer‘s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or



• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person‘s job no longer exists.’

It is noted that the reference in the statutory expression is to a person’s ‘job’ no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves ‘a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee’ (at p.308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

‘What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…’ (at p.308)

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the ‘job’ of that employee no longer exists.”

[42] The circumstances of DVA are analogous to those of Ulan Coal Mines. I accept that in 2005 there was a reorganisation of the manner in which DVA conducted its service delivery operations resulting in a reduction in the number of VAN/Client Contact employees and a number of positions at the APS3 and APS4 level being abolished. I accept that as a result of the reorganisation in 2005 Mrs Noronha’s job was no longer required to be done and her substantive position did not exist following the 2005 reorganisation. I accept that this occurred because of changes in the operational requirements of DVA.

[43] The circumstances prevailing in the Australian Public Service (APS) are different from those usually encountered in private sector employment. A position may become redundant without the corresponding termination of the employee who occupied the position on grounds of redundancy. In the APS the obligation upon the employer is to seek to redeploy the employee and only when this is not successful does the APS declare the employee as “excess” at which time certain other obligations in relation to consultation, offers of voluntary redundancy and ultimately involuntary redundancy are enlivened. It is not uncommon for these processes to take many years.

[44] I have considered the circumstances of Mrs Noronha’s leave, unsuccessful attempts at return to work and temporary work placement during the period 2005 to 2011, when she was dismissed and I do not consider that the conduct of DVA during this time negated the fact of Mrs Noronha’s redundancy.

[45] I can see that it must be difficult for Mrs Noronha to appreciate that she was redundant when DVA restructured in 2005. She was absent from the workplace and did not experience any of the outward signs of the reorganisation such as the review and decision making that followed. There is no material put forward to suggest that she was contacted at the time and advised of the reorganisation or her redundancy. The rehabilitation support provided by DVA and the attempts at return to work may, ironically, have contributed to her belief that she was not redundant. However, I accept that these endeavours were well intentioned, consistent with good practice in managing injured workers and in part undertaken in compliance with the terms of the industrial instruments that provided her terms and conditions of employment. These endeavours do not mean that Mrs Noronha was not redundant.

[46] Accordingly, I find that DVA have discharged their onus in relation to s.389(1) of the Act.

DVA have complied with any obligation in a modern award or enterprise agreement that applied to Mrs Noronha’s employment to consult about the redundancy

[47] At the time of the national reorganisation Mrs Noronha was covered by the Department of Veterans’ Affairs Enterprise Agreement 2004-2005 (the 2004-5 Agreement). The relevant provision was Clause 33 - Managing Organisational Change as follows:

“33. MANAGING ORGANISATIONAL CHANGE

33.1. Effective achievement and management of change will assist DVA in ensuring organisational viability. DVA is committed to providing support for DVA employees throughout organisational, corporate and operational changes.

33.2. The principles for assisting in the effective implementation of change are:

• DVA will follow the Framework for Managing Change, which provides a process for managing change including the key or critical aspects of change;



• DVA will undertake meaningful consultation with employees, and ensure employee participation in the change process;



• DVA will provide timely information to assist employees to understand the rationale, details and anticipated impact of proposed changes;



• DVA will consider ways to reduce adverse impacts of the change;



• DVA will identify the risks associated with proposed changes (in line with DVA’s Risk Management Policy and Framework) and what mitigating strategies are or can be put in place; and



• DVA will work with employees to identify learning needs and develop and implement learning strategies.

33.3. DVA will consult with employees and, where they request, their nominated representatives in relation to organisational changes in accordance with the consultative arrangements outlined in section 37.”

[48] At the time of her termination, Mrs Noronha was covered by the DVA Collective Agreement 2009-2011 (the 2009-2011 Agreement). This agreement is a transitional instrument pursuant to Part 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and can be considered an “enterprise agreement” for the purposes of s.389(1)(b) of the Act.

[49] The relevant provision was Part I Organisational Change and specifically clause 432 as follows:

“EMPLOYEE SUPPORT AND CAREER TRANSITION

432 DVA will consult directly with employees whose positions may be affected by change.”

[50] DVA clearly had an obligation arising from both the 2004-5 and the 2009-2011 Agreements to consult employees about change that arguably includes change that results in positions being redundant.

[51] The Macquarie Concise Dictionary, Third Edition, defines “consult” as:

“1. To seek counsel from; ask advice of, 2. Refer to for information, 3. To have regard for (a person’s interest, convenience, etc) in making plans, 4. To consider or deliberate, take counsel, confer.”

[52] There is also guidance that can be obtained from cases before the Fair Work Commission (the Commission) that consider the term in an industrial relations context.

[53] In Ulan Coal Mine the Full Bench rejected the view of the Commissioner that the obligation to consult did not relate to mineworker employees generally but to the particular mineworkers who were dismissed due to redundancy. The Full Bench said at paragraph 25:

“The Commissioner considered that it was this group of mineworkers who are referred to in sub-clause 23.1 as being the employees who were “directly affected” (cl. 23.1(1)) or the “employees concerned” (cl. 23.1(3)) and that the sub-clause required that the discussions be held with them (par [49]).”

[54] The Full Bench said at paragraphs 28 – 32:

“[28] It is clear that the intention in those cases is that the employees and their representatives should be involved in the problems of redundancy as soon as a firm decision has been taken that retrenchments might be necessary (see TCR Case [1984] 8 IR 34, at 62-64). This intention can also be discerned from the wording of sub-clause 23.1 of the Agreement itself. The requirement is for discussions to begin “as soon as is practicable” after a definite decision is made about redundancies. The decision is described in the sub-clause as one which “may” lead to termination of employment (par 23.1(1)) and the discussions to be held will include consideration of the reasons for “proposed terminations” and measures to “avoid or minimise the terminations” (par 23.1(2)). The discussions as such will be of relevance to the entire workforce of an enterprise or at least to that part of the workforce whose work or jobs will be affected by terminations due to redundancy. In the present case, this would be the mineworker employees at the mine. These are the employees “directly affected” by the decision to change the size and composition of the mineworker workforce at the mine and the group with whom the Company must hold discussions. The discussions are envisaged to take place before the number of terminations is finalised and the particular employees to be retrenched are identified.

[29] The benefit of having discussions at an early stage of the process is that it will allow the employees an opportunity to influence such decisions and to put proposals as to measures to avoid or minimise the terminations and to mitigate any adverse effects of the terminations on the employees concerned. In some cases, the discussions and consultations may cover the basis on which employees to be retrenched due to redundancy will be selected. However in the present matter this is determined by the Agreement to be according to seniority. Were it not for this factor, we consider there might be more weight to the Applicants’ submissions concerning more individualised consultation in connection with the impending retrenchments.

[30] In the present case, the Company held discussions about the restructure and consequent redundancies with the entire workforce, including the mineworkers who were dismissed. There was evidence that each of the Applicants was present during the consultation meetings. The CFMEU as the representative of the employees was also involved and the discussions covered the matters referred to in paragraph 23.1(2) of the Agreement, namely the reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate adverse effects.

[31] We do not consider, in the particular circumstances of the present matter and having regard to the obligation under sub-clause 23.1 of the Agreement, that a further round of discussions was required to be held by the Company with the employees to be dismissed, either separately or as a group. This does not mean that such separate discussions might not be worthwhile and appropriate e.g. as part of the consideration of measures to mitigate the adverse affects of terminations or to ensure that opportunities for other employment and assistance are properly examined. However they are not part of the discussions envisaged and required under sub-clause 23.1 of the Agreement and that is the test in these particular circumstances. In different circumstances this will of course vary according to the terms of particular awards and agreements.

[32] The Commissioner found that the Company had complied generally with the obligation in the Agreement by consulting with the CFMEU and the mineworker employees generally about the redundancies. This was sufficient to satisfy the requirement in s.389(1)(b) of the Act.”

[55] The conclusions of the Full Bench in Ulan Coal Mines remain pertinent. DVA was not required to personally consult with Mrs Noronha about the reorganisation but to consult the class of employees “whose positions may be affected by change” in a similar manner as Ulan Coal Mines was require to consult with mineworkers.

[56] However, the assumption implicit in this approach is that the individuals concerned would be amongst the group being consulted.

[57] The Full Bench said: “In the present case, the Company held discussions about the restructure and consequent redundancies with the entire workforce, including the mineworkers who were dismissed.” 2

[58] Mrs Noronha was on leave at the time of the 2005 reorganisation and so was not amongst the group of employees in receipt of information, attending meetings and discussing the proposed change with DVA.

[59] DVA submit that there are no specific obligations in the Act regarding consulting with employees on sick leave but that guidance may be obtained from the requirements of the Act in relation to employees absent from work on unpaid parental leave. Section 83 provides that “the employer must take all reasonable steps to give the employee information about, and an opportunity to discuss, the effect of the decision on that position”. I accept that this is a reasonable analogy.

[60] Did DVA take all reasonable steps to give Mrs Noronha information about, and an opportunity to discuss, the effect of the decision to restructure DVA on her position?

[61] I accept that DVA met their consultation obligations based on the actions they took at the time of the reorganisation in 2005 to consult collectively with employees whose positions may be affected by change. DVA cannot say whether any steps were taken to involve Mrs Noronha in this form of consultation. However, in the light of the ongoing communication with Mrs Noronha between 2005 and 2011 about her rehabilitation, her return to work, her work placements and the offer of voluntary redundancy I find that DVA provided her individually with countless opportunities for consultation about her situation. That Mrs Noronha was not present on the occasions when DVA consulted with all employees is unfortunate and it would have been good management practice to tailor this stage in the consultation process to the needs of employees who were absent from the workplace for whatever reason. However, I do not regard the absence of her involvement in the general consultation process as justifying a finding that DVA failed to consult as required by the 2004-5 Agreement.

[62] DVA contend that their consultation obligation was enlivened in 2011 when the 2009-2011 Agreement applied. They provided comprehensive submissions and materials revealing extensive communication with Mrs Noronha in accordance with the redeployment and retrenchment provisions (see below) of the 2009-2011 Agreement.

[63] They make the following submission:

“44. The respondent addressed and satisfied all of the consultation requirements of the Collective Agreement in effecting the Applicant’s redundancy in that it:

(a) advised the Applicant her position was likely to become excess to requirements;

(b) discussed with the Applicant potential redeployment opportunities (as discussed further in paragraphs 49 to 64 below);

(c) explored with the Applicant whether she was interested in accepting voluntary redundancy;

(d) advised the Applicant that her position was excess to requirements.

45. The Respondent submits that it has met its consultation obligations to the Applicant as set out in the Collective Agreement.” 3

[64] I accept this submission.

[65] Taking these two periods of consultation together I believe that DVA have complied with their obligations arising from the 2004-5 and 2009-2011 Agreements to consult about the redundancy. Accordingly, I find that DVA have discharged their onus in relation to s.389(1)(b) of the Act.

It would not have been reasonable in all the circumstances for Mrs Noronha to be redeployed within DVA or the enterprise of an associated entity of DVA

[66] Guidance on the meaning of s 389(2) of the Act was considered by the Full Bench in Ulan Coal Mines v Honeysett and Others 4 in paragraphs 26-28 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.

[27] Secondly, it is implicit in the terms of s.389(2)(b) that it might be reasonable for an employee dismissed by one employer to be redeployed within the establishment of another employer which is an entity associated with the first employer. It follows that an employer cannot succeed in a submission that redeployment would not have been reasonable merely because it would have involved redeployment to an associated entity. Whether such redeployment would have been reasonable will depend on the circumstances. The degree of managerial integration between the different entities is likely to be a relevant consideration.

[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. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. 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.” (my emphasis)

[67] At the time of Mrs Noronha’s dismissal the 2009-2011 Agreement contained an obligation upon the employer to, inter alia, consider the redeployment prospects of a potentially excess employee.

[68] The relevant provision of the 2009-2011 Agreement was as follows:

“REDEPLOYMENT AND RETRENCHMENT

436 The following will apply to the management of organisational change in DVA:

(a) the DVA change management framework will be used;

(b) the Secretary will advise any employee, in writing, if he or she is likely to become excess;

(c) the Secretary will take reasonable action to assess the redeployment prospects of the potentially excess employee;

(d) discussions with the potentially excess employee will be held to consider:

(i) redeployment opportunities, taking into account the Secretary’s assessment, for the employee concerned; and

(ii) whether the potentially excess employee is interested in voluntary retrenchment;

(e) during these discussions, the employee may choose to be accompanied by a person of their choice;

(f) prior to the conclusion of these discussions, employees who are not potentially excess may be invited by the Secretary to express interest in voluntary retrenchment, where those retrenchments would facilitate the redeployment of excess or potentially excess employees;

(g) subject to the entitlement of excess employees, potentially excess employees will be considered in isolation for all DVA vacancies at their regular level, and prior to those vacancies becoming a merit selection;

(h) where more than one potentially excess employee applies for a vacancy, the potentially excess employees will be considered in isolation, but the selection decision will be based on the comparative merits of the potentially excess employees;

(i) where potentially excess employees are considered in isolation for a vacancy, they need only demonstrate that they will be able to satisfactorily perform the duties, with training and development, within a reasonable time frame (ordinarily within 3 to 6 months).

437 The Secretary may advise the employee in writing that they are likely to become excess and declare the employee excess to requirements:

(a) after the completion of discussions in clause 436 or

(b) if the employee or the employee’s representative decline to attend discussions – no less than 1 month after the Secretary has told the employee that the employee is likely to become an excess employee.

438 The Secretary may make assistance available to employees for financial and/or career counselling in accordance with 435.

DETERMINING EXCESS STATUS

439 An employee may be declared excess if:

(a) there is a greater number of employees at a particular classification level than is necessary for the efficient and economical working of DVA;

or

(b) their services cannot be effectively used because of technological or

other changes in work methods, or other organisational changes in DVA;

or

(c) the employee is not willing to move to or perform duties at another

locality where their usual duties are reassigned, and the Secretary

determines that these provisions will apply to that employee.

VOLUNTARY RETRENCHMENT

440 Where the Secretary invites an excess employee to consider an offer of

voluntary retrenchment, the employee will have 1 month within which to accept the offer. If the employee accepts the offer the Secretary will issue a Notice of Termination at or after the end of that period and not before, unless the employee agrees to the Notice of Termination being given earlier.

441 Only one formal offer of voluntary retrenchment will be made to an excess employee.

442 Where an employee has not already received the following information, within that month the employee must be given information on the:

(a) amount of severance pay, pay in lieu of notice and paid up leave credits;

(b) amount of accumulated superannuation contributions;

(c) options open to the employee concerning superannuation;

(d) taxation rules applying to the various payments; and

(e) financial/career counselling to assist the employee to make an informed decision on accepting an offer of voluntary retrenchment. From 1 January 2009 or the date of operation of this Agreement, whichever is the later, reimbursement of the cost of such financial/career counselling is normally limited to a combined maximum of $850 (unless exceptional circumstances warrant an additional amount), and is not available if already accessed previously in this process.

INVOLUNTARY TERMINATION

Retention Periods

453 The Secretary will not involuntarily terminate the employment of an excess employee under section 29 of the Public Service Act 1999, unless they otherwise agree, until the following retention periods have elapsed:

(a) 13 months service where the employee has 20 or more years of service or is over 45 years of age; or

(b) 7 months service for others.

454 The retention period will commence on the earlier of the following:

(a) the day the employee is advised in writing by the Secretary that he or she is an excess employee; or

(b) 1 month after the day on which the Secretary invites the employee to elect to have their employment voluntarily terminated under clause 440 of this Agreement.

455 During the retention period:

(a) the Secretary will continue to take reasonable steps to find alternative employment, including movements at level, for the employee;

(b) excess employees will be considered in isolation for all DVA vacancies at their regular level, and prior to those vacancies becoming a merit selection;

(c) where more than one excess employee applies for a vacancy, the excess employees will be considered in isolation but the selection decision will be based on the comparative merits of the excess employees;

(d) where excess employees are considered in isolation for a vacancy, they need only demonstrate that they will be able to satisfactorily perform the duties, with training and development, within a reasonable time frame (ordinarily within 3 to 6 months); and

(e) after taking the above steps, the Secretary may, after giving 4 weeks notice to the employee, reduce their classification as a means of securing alternative employment. If this occurs prior to the end of the retention period the employee will continue to be paid at their previous level for the balance of the retention period. Their previous level will include the salary of a higher work level, where the employee has been performing work at a higher level for a continuous period of at least 12 months immediately preceding the date on which he or she was reduced in classification level, provided the employee would have continued to act but for the excess employee situation. Their previous level will also include allowances or loadings in the nature of salary, that are paid during periods of leave and on a regular basis.

456 During the retention period the employee will:

(a) take reasonable steps to find alternative employment; and

(b) actively participate in learning and development activities, trial placements or other arrangements agreed to, to assist in obtaining a permanent placement.

457 The retention or notice periods relating to the reduction in classification of an excess employee or notice of involuntary termination will be extended by any periods of certificated personal leave due to the illness of the employee during these periods.

458 The excess employee will be provided with assistance in meeting reasonable travel and incidental expenses incurred in seeking alternative employment where these expenses are not met by the prospective employer.

459 Where the Secretary believes there is insufficient productive work available for an excess employee during the retention period, the Secretary may, with the agreement of the employee, terminate their employment under section 29 of the Public Service Act 1999 and pay the balance of the retention period as a lump sum.

460 An excess employee will be given 4 weeks’ notice (or 5 weeks for an employee over 45 years of age with at least 5 years continuous service as defined in clause 448 of this Agreement) where it is proposed that they will be involuntarily terminated. Wherever possible the notice period will be concurrent with the retention period.

461 An excess employee will not have their employment terminated involuntarily:

(a) before they have been invited to consider an offer of voluntary termination of employment, or

(b) if they have agreed to have their employment voluntarily terminated but the Secretary refuses to approve it; and/or

(c) if there are other employees performing similar work at the same level in their location who have previously agreed to have their employment terminated, been refused, and still wish to accept voluntary termination of employment.”

[69] In the context of s.389(2) of the Act it is worth noting that the redeployment obligations arising from the 2009-2011 Agreement are triggered by the decision to identify a position as “excess” rather than a dismissal. The processes set out in the 2009-2011 Agreement are necessarily preliminary to the decision to dismiss an employee. It is reasonable to conclude that they are in the Agreement to mitigate and obviate the effect of redundancy on the employment tenure of the employees who held the redundant positions. My task is not to determine whether DVA complied with all its obligations under the 2009-2011 Agreement in respect of Mrs Noronha but rather confine myself to the questions that are relevant to determine whether Mrs Noronha’s dismissal was a case of genuine redundancy in terms of the Act. The standard that must be met is that contained in the Act. However, I consider the application of the redeployment provisions of the Agreement to Mrs Noronha as useful in deciding whether redeployment would have been reasonable at the time of dismissal in 2011.

[70] A review of the factual circumstances of Mrs Noronha’s case contained earlier in my decision, when compared to the pathway set out in these provisions supports DVA’s contention that it made reasonable attempts to redeploy Mrs Noronha in compliance with the Agreement. Mrs Noronha disagrees citing absence of job offers and work trials. Mrs Noronha complains that the Secretary did not advise her in writing of her “excess” status as required by the provisions of the Agreement nor did the Secretary meet with her. DVA points out that the Secretary can delegate, and it is clear that Mrs Noronha was communicated with by people with appropriate authority, Mr Roger Wizenberg, amongst others.

[71] The Agreement set a high standard in relation to the redeployment of “excess” employees. It is clear that between 2005 and 2011 DVA were consistently and actively involved in facilitating Mrs Noronha’s rehabilitation, her attempts at return to work, the development of return to work plans and opportunities to improve job seeking skills. It could be said that they followed the Agreement to the letter in the process of offering voluntary redundancy and in the process of involuntary termination.

[72] I find that DVA’s efforts in seeking redeployment opportunities for Mrs Noronha were reasonable and, particularly in the light of medical advice that she not be employed in DVA, it would not have been reasonable in all the circumstances for Mrs Noronha to be redeployed within DVA.

[73] It remains to consider whether it would have been reasonable for her to be redeployed within the enterprise of an associated entity of the employer.

[74] Are other Commonwealth departments considered “associated entities” for the purposes of the Act?

[75] Section of the Corporations Act 2001 states:

“associated entity has the meaning given by section 50AAA of the Corporations Act 2001.”

[76] The Corporations Act 2001 contains section 50AAA as follows:

“Associated entities

(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.

(2) This subsection is satisfied if the associate and the principal are related bodies corporate.

(3) This subsection is satisfied if the principal controls the associate.

(4) This subsection is satisfied if:

(a) the associate controls the principal; and

(b) the operations, resources or affairs of the principal are material to the associate.

(5) This subsection is satisfied if:

(a) the associate has a qualifying investment (see subsection (8)) in the principal; and

(b) the associate has significant influence over the principal; and

(c) the interest is material to the associate.

(6) This subsection is satisfied if:

(a) the principal has a qualifying investment (see subsection (8)) in the associate; and

(b) the principal has significant influence over the associate; and

(c) the interest is material to the principal.

(7) This subsection is satisfied if:

(a) an entity (the third entity) controls both the principal and the associate; and

(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.

(8) For the purposes of this section, one entity (the first entity) has a qualifying investmentin another entity (the second entity) if the first entity:

(a) has an asset that is an investment in the second entity; or

(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.”

[77] In Ulan the Full Bench appeared to consider it relevant that an “employer is part of a group of associated entities which are all subject to overall managerial control by one member of the group.” 5 Against this test I do not believe that Commonwealth Government departments would be considered “associated entities”.

[78] However, against an examination of the Corporations Act 2001, the Commonwealth Government may, in the terms of s.50AAA(7) be a “the third entity” controlling both the principal (DVA) and the associate (another Commonwealth Government department). If this is the case then the dismissal of a Commonwealth Government employee in one department may not be a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within another Commonwealth Government department.

[79] DVA contend that Commonwealth Government departments and agency heads/employing authorities are not “associated entities” for the purposes of s.389(2) of the Act. DVA say that s.20 of the Public Service Act 1999 and s.795 of the Act operate together to clarify that while the legal employer of APS employees is the Commonwealth, staffing powers are vested in agency heads (secretaries of the departments).

[80] Even if this is wrong I consider that it would not have been reasonable in all the circumstances for Mrs Noronha to be redeployed within another Commonwealth Government department. DVA, through CRS, actively sought opportunities for Mrs Noronha elsewhere in the APS. In the event they were unsuccessful in their attempts. It is true that these efforts ceased upon Mrs Noronha’s termination. However, it would be perverse if all the efforts between 2005 and 2011 to support Mrs Noronha were of no consequence to a consideration of the reasonableness of redeployment efforts at the point of dismissal.

[81] Therefore, it would not have been reasonable for Mrs Noronha to be redeployed within the enterprise of an associated entity of DVA.

[82] Accordingly, it could not be held in terms of s.389(2)(a) and (b) of the Act that Mrs Noronha’s termination of employment was not a genuine redundancy and DVA have discharged their onus in this regard.

Conclusion

[83] I indicated at the outset of my consideration in this matter that to discharge their onus DVA had to establish that:

• Mrs Noronha’s job was no longer required to be performed by anyone because of changes in the operational requirements of DVA and,



• DVA have complied with any obligation in a modern award or enterprise agreement that applied to Mrs Noronha’s employment to consult about the redundancy and,



• It would not have been reasonable in all the circumstances for Mrs Noronha to be redeployed within DVA or the enterprise of an associated entity of DVA.

[84] For the reasons outlined above I regard that onus as having been discharged in regard to each point and I consider Mrs Noronha’s dismissal to be a case of genuine redundancy in terms of s.389 of the Act. Accordingly, her dismissal was not unfair within the meaning of s.385 of the Act and her application is dismissed.

DEPUTY PRESIDENT

Final written submissions:

3 April 2013

 1   [2010] FWAFB 3488

 2   Ibid. at PN30

 3   Employer’s Submissions in Relation to Jurisdictional Objection (That the Dismissal of the Applicant Arose Due to Genuine Redundancy) at PN44-45

 4   [2010] FWAFB 7578 at PN26-28

 5   Ibid. at PN35

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