Paul Ritchie v Parabellum International Pty Ltd
[2021] FWC 83
•19 JANUARY 2021
| [2021] FWC 83 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Paul Ritchie
v
Parabellum International Pty Ltd
(U2020/8821)
COMMISSIONER WILLIAMS | PERTH, 19 JANUARY 2021 |
Application for an unfair dismissal remedy.
[1] This decision concerns an application made by Mr Paul Ritchie (Mr Ritchie or the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 26 June 2020. The Respondent is Parabellum International Pty Ltd (Parabellum or the Respondent).
[2] At the hearing of this matter Mr Ritchie gave evidence on his own behalf and called Mr Jason Arthur (Mr Arthur) to give evidence. For the Respondent evidence was given by Ms Fiona Marie Sammels (Ms Sammels), the Human Resources and Projects Manager.
Factual Findings
The Respondent’s evidence
[3] Parabellum is contracted by Chevron to provide emergency services on the Gorgon Project (the Project).
[4] The Applicant was employed as an Emergency Services Officer (ESO) (Fire Fighter Level 3) working an even-time roster on the Red Swing on the Project on Barrow Island.
[5] The Applicant’s employment was subject to the terms of the Parabellum International (Emergency Services Industry) Barrow Island Agreement 2017-2021 [AE425621](the Agreement).
[6] In March 2020 Chevron advised that due to the decrease in oil and gas prices and negative impact from COVID-19 on the international market it was undergoing major cost cutting measures to reduce costs on the Project, including the Parabellum scope of works and positions.
[7] Consequently, in April - May 2020, Parabellum undertook a review of its operational requirements on the Project. This review identified that some roles on the Project were no longer viable and as such would be removed.
[8] As of April 2020, Parabellum had 26 site roles on the Project, which consisted of:
(a) 2 full time Senior ESO (SESO) roles;
(b) 4 full time Emergency Services Team Leader (Team Leader) roles;
(c) 20 full time ESO roles (with four of the ESOs being employed as full time-relievers employed primarily to cover employee leave). Of these 20, two reliever employees were employed on the Red Swing and two reliever employees were employed on the Blue Swing.
[9] The Applicant was one of the two relievers employed on the Red Swing.
[10] Following Parabellum’s review, and in consultation with the client, the decision was made to remove the SESO roles on the Project.
[11] Further, with many employees exhausting much of their annual leave, and the significant overhead cost of the ESOs, the decision was made to reduce the number of ESO roles on the Project by two, bringing down the number of ESO roles from 20 to 18. To achieve this and mitigate against any coverage issues on the two swings the decision was made to remove one ESO role from the Red Swing and one ESO role from the Blue Swing.
[12] As of 17 September 2020, Parabellum has only 22 internal roles on the Project down from the 26 roles as of April 2020.
[13] Following Parabellum’s decision to make changes to the structure and size of the workforce on the Project, Parabellum commenced the consultation process pursuant to the Agreement.
[14] Ms Sammels was responsible for the consultation process and undertook the following steps:
(a) On 28 May 2020, she emailed the Red and Blue Swing Team Leaders to advise that the Respondent would be commencing the consultation process and requesting that they each speak to their respective team members to set a time for the consultation to occur and to advise each employee that they may have a support person present during the consultation meeting.
(b) On 29 May 2020 she received an email from the Applicant’s Team Leader, advising the Applicant (amongst others) was available for his consultation meeting at 6.00 p.m. AWST, 29 May 2020.
(c) On 29 May 2020, at 6.00 p.m. AWST, she phoned the Applicant to commence the consultation process with him (Consultation Meeting). During that meeting she advised:
• that the market conditions had significantly changed; resulting in a massive decline in oil and gas prices and the detrimental impact this decline had on the client;
• that cost cutting initiatives had been introduced by the client throughout all of their projects internationally and within Australia;
• that the client is in the process of reducing its own personnel and contractor personnel by up to 30%. The client has even brought in personnel who are designed to look for as much cost cutting measures within the business as possible;
• that the cost cutting initiatives were quickly realised with the redundancy and removal of the SESO roles from Parabellum;
• that Parabellum is looking at ways to minimise impact of the proposed changes, however, as a consequence of these changes the Applicant’s role was under review and therefore his employment may end in redundancy;
• that no decision had been made on whose role may be made redundant. The Respondent advised the Applicant that the consultation period and the decision-making process will be made carefully and professionally, care and compassion for people’s wellbeing would be at the forefront;
• that Parabellum would explore any suitable alternative roles for which the effected person may be qualified and may be redeployed;
• the timeline of the consultation process;
• the availability of Parabellum’s EAP service;
• that the Applicant had the opportunity to raise any concerns or queries;
• the process moving forward, specifically:
• that the Applicant would receive a letter confirming content of the discussions during the Consultation Meeting; and
• opening an opportunity to provide any further responses as how he may be personally affected and advice on how the business could lessen the impact.
[15] During the Consultation Meeting, the Applicant raised queries such as the number of employees who will be made redundant, BA training, Chevron cutting costs etc.
[16] Following the completion of the Consultation Meeting, Ms Sammels emailed a consultation letter to the Applicant dated 29 May 2020 (the Consultation Letter). The Consultation Letter outlined what was discussed during the Consultation Meeting. The Consultation Letter also advised the Applicant that Parabellum would explore any suitable alternative roles for which he was qualified and may be redeployed to if his employment was made redundant. This was also discussed with the Applicant during the Consultation Meeting.
[17] The Applicant on 29 May 2020 at 8.15 p.m., contacted Ms Sammels to query:
• the monetary value of the redundancy package; and
• the leave entitlements under the redundancy package.
[18] On 30 May 2020, she emailed the Applicant advising him that the redundant employee would be paid their redundancy entitlement in accordance with the Agreement and that annual leave would be paid out based on the individual employee’s accrual.
[19] After this email, she did not receive any further queries from the Applicant.
[20] On 3 June 2020, Ms Sammels met with Ms Jessica Keogh (Ms Keogh), Parabellum’s COO and General Counsel, Mr Freeman and Mr Sykes to discuss the responses received from the ESOs on the Red Swing before any decision was to be made regarding redundancy.
[21] On 4 June 2020 she had another meeting with Ms Keogh to make a final decision regarding which ESO role was to be made redundant. It ultimately came down to the Applicant’s role or one other employee’s ESO role who, just like the Applicant, was employed as an ESO reliever to cover periods of leave and had been employed for approximately 10 to 11 months.
[22] Following scrutiny of the Applicant’s and the other ESO’s role, the decision was made to make the Applicant’s role redundant. The Applicant’s role was chosen because additional qualifications including a Diploma of Paramedical Science and a TAE 40016 training qualification which was now a required qualification under Parabellum’s new contract with Chevron, which the Applicant did not have.
[23] Before the Respondent made any final decision to terminate the Applicant’s employment for reasons of redundancy, Ms Keogh tasked Ms Sammels with reviewing any current job opportunities which the Applicant could be redeployed to within Parabellum.
[24] As the Manager of HR and Projects, Ms Sammels had extensive knowledge of all job opportunities within Parabellum, including all qualification and experience requirements for the relevant roles.
[25] As evidenced by the Applicant’s resume, the Applicant is a professional Fire Fighter (and Plumber) by trade with many years of experience in Fire Fighting, however, he lacks paramedical and/or healthcare qualifications and experience.
[26] The only open role which the Respondent had available at the time of the Applicant’s redundancy was a casual Pinjarra based drive in drive out Emergency Response Officer (ERO) role at Alcoa.
[27] The relevant qualifications required in the role are set out below. 1
“Alcoa Scope of Works
13. Qualifications
• Certificate IV in Health (ambulance) or equivalent
• Certificate IV in Health (ambulance) refresher within last 12 months
• Certificate IV in Health (ambulance) refresher annually
• Certificate 3 in Mine Emergency Response & Rescue or equivalent
• Certificate 2 in Security Operations
• Current Security License or Proof of Application
• Police Clearance (within 3 months)
• Vaccinations Hepatitis B (serology to confirm)
• HLTPAT00S Collect Specimens for Drugs of Abuse Testing or equivalent
• Dangerous Goods Security Card
• Current Western Australia Driver's License
• Contract staff must be able to demonstrate a minimum of two years emergency ambulance experience
• Alcoa One Induction
• Site Medical Centre Induction
• Mine Site Driving Permit
• Completion of Site ESO Training Package Maintain Competencies on Tracers Alcoa LMS System with a 90% target”
[28] The Respondent’s contract with Alcoa required each ERO to hold a Certificate IV in Health (ambulance) or equivalent with a minimum of two years emergency ambulance experience. As such, this role is usually appropriate for Paramedics or Medical ESOs.
[29] Based on this, Ms Sammels’ evidence was that the Applicant did not have the necessary skills, requisite medical qualifications nor emergency ambulance experience required by Alcoa and as such this role was also not suitable for him to be redeployed to. 2
[30] Her evidence was that with respect to the required medical qualifications, these are not qualifications which can be upskilled quickly, and each requires significant time in order to be obtained.
[31] Under cross-examination Ms Sammels agreed that there was no discussion with Mr Ritchie about these requirements for the Alcoa position or the existence of that position at all. 3
[32] Her evidence was that the role at Alcoa was an ad hoc casual reliever’s role not a full-time ongoing role. The role was to backfill Alcoa’s own emergency response officers. Consequently, the hours for this casual position would be offered at short notice and could amount to one shift a week or it might be four shifts a week. 4
[33] Even if the Applicant could get recognition for prior learning to meet the requirement of having a Certificate IV in Health (ambulance) this would take too long to be confirmed and in any event the Applicant had not completed a refresher of the Certificate IV in Health (ambulance) in the last 12 months. Separately, the Applicant did not have the minimum of two years emergency ambulance experience required.
[34] Ms Sammels says the role the Applicant referred to in his witness statement 5 was a casual short-term medical role with AngloGold Ashanti (Anglo) at Sunrise Dam, located in Laverton WA. This role was a short-term labour hire role until the end of June 2020. The role commenced on 30 April 2020 and ceased on 30 June 2020.
[35] Her evidence was that this role had already been filled by another Parabellum employee at the time of the Applicant’s redundancy and was no longer available.
[36] The reason the Respondent maintained the Anglo medical ESO advert on Seek, LinkedIn and Facebook is that the advertising cost approximately $330 per post and she wanted to make the most of the advertisement and fill her database with additional candidates for any future roles.
[37] At the commencement of July 2020, Parabellum was contacted by Regis Resources Limited (Regis) in relation to a potential new casual Emergency Response Coordinator role at its Rosemont Project, located 100 kms north of Laverton, WA. The opportunity only became a position on 8 July 2020 and commenced on 17 July 2020. As such, this position was not in existence at the time of the Applicant’s redundancy.
[38] Around 5 July 2020, Ms Sammels did mention to another employee, Mr Arthur, that there may be a role coming up soon (being the Regis role), but there was limited information regarding it. She did mention that the role may be a 2:1 roster, at which stage Mr Arthur advised that he would not be interested to explore it any further as it would require an interstate move as he would not be able to fulfil self-quarantine requirements that were currently in place in WA under that roster.
[39] On 9 July 2020 she posted an advertisement looking for an Emergency Response Coordinator to fill this role.
[40] After Ms Sammels had reviewed all potential roles and determined that there were no suitable alternative roles in which to redeploy the Applicant, she proceeded to terminate the Applicant’s employment for reason of redundancy.
[41] On 5 June 2020, Ms Sammels called the Applicant and spoke to him about his redundancy and that he was terminated. She says she advised the Applicant of the following:
(a) the market conditions had significantly changed; resulting in a massive decline in oil and gas prices and the detrimental impact on the client;
(b) cost cutting initiatives had been introduced by the client throughout all of their projects internationally and within Australia;
(c) the client is in the process of reducing its own personnel and contractor personnel by up to 30%;
(d) Parabellum has addressed ways to minimise the impact of these changes, however as a result of these initiatives implemented by the client all ESO roles within Red Swing went under a review, and after exhausting all possible opportunities within the business that fit the Applicant's qualifications/skillset unfortunately the Applicant's role and employment with Parabellum will be made redundant with immediate effect;
(e) the decision to make the Applicant’s employment redundant had nothing to do with the Applicant's performance or conduct, which had been excellent, and she thanked him for his hard work and service to Parabellum;
(f) a termination letter would be emailed to him confirming any monetary figures, access to EAP and general discussion about personal items and organising their return;
(g) she discussed the fact that Parabellum was tendering for ESO work on the East Coast and if any opportunities become available which suit his skill set, they can consider him for those roles.
[42] Parabellum has decreased its number of roles on the Project from 26 to 22. This has not changed.
[43] The reason however that Parabellum advertised for ESOs on Barrow Island, is that on 21 August 2020, Chevron advised it had received information that the Western Australian government that it was likely to close the WA border to all interstate FIFO employees imminently.
[44] She says because 12 of the current 22 employees on the Project reside interstate this would have a detrimental impact on Parabellum’s and, in turn, Chevron’s operations on the Project.
[45] Consequently, she posted an advertisement on 21 August 2020 to recruit local WA based employees should the WA borders close to all FIFO workers.
[46] Then on 24 August 2020, Chevron advised that the Western Australian government was no longer considering closing the border to all FIFO workers at this stage and so the advertised roles never needed to be filled.
[47] COVID-19 had a significant impact on all operations across the globe, including Parabellum’s operations and it is understandable that the Applicant raised queries during this period regarding quarantines. Further, the Applicant was not the only employee to raise queries and/or concerns regarding quarantine and/or quarantine payment during that period.
[48] As stated previously, the Applicant was employed from Perth Airport and was expected to be ready, willing, and able to perform his work on Barrow Island. This meant that the Applicant was required to be in Perth and ready to fly to site on each of his fly in days.
[49] The Applicant decided to go to Victoria during his off-duty period and as such he was required, pursuant to the Emergency Management Act 2005, to quarantine for 14 days on his return to WA as a FIFO worker. This position was confirmed in an email by the legal department of the WA Police which advised that Parabellum’s employees are deemed FIFO workers, not emergency services workers, requiring them to quarantine for 14 days.
[50] Ms Sammels’ evidence was that at no stage did the Applicant’s querying of quarantine or quarantine payments have any impact on the decision to make his role redundant. Further, Mr Arthur who was also made redundant during this period did not raise any queries or concerns regarding quarantine or quarantine payments and his employment was made redundant.
[51] Ms Sammels’ evidence was that a First Responder qualification is not nationally accredited. Whereas the Certificate IV in Health (ambulance) is a nationally accredited qualification. 6
[52] Obtaining a Certificate IV in Health (ambulance) or equivalent would normally take approximately 12 months in the classroom environment and then requires 80 clinical hours practicum. 7
[53] Ms Sammels’ evidence was that it was not possible for Mr Ritchie to retrain to meet Alcoa’s needs. Firstly, during this period, because of COVID-19, no registered training organisations were delivering medical training and no ambulance services nor emergency department were allowing people to come in to get their required 80 hours clinical experience. In addition, the Respondent’s contract with Alcoa for this ESO position was only for 12 months. 8
[54] Ms Sammels in her previous employment worked for an employer who held the emergency services contract with Alcoa for six years. Her evidence was she is fully aware of Alcoa’s requirements. In her experience there is no flexibility on Alcoa’s part in accepting a candidate for a vacant position who does not meet all the minimum qualifications Alcoa has specified. 9
The Applicant’s evidence
[55] Mr Ritchie’s evidence is that he had been a firefighter with the Melbourne Metropolitan Fire Brigade for 26 years.
[56] He has an array of qualifications and specialist skill certificates as detailed in his resume. 10
[57] He was first employed with the Respondent as an ESO in June 2019.
[58] The role involved the provision of an emergency services response in the event of incidents on the Project.
[59] The Respondent understood the Applicant lived in Melbourne. He says he has the option to permanently live in Western Australia via a friend who he sometimes stays with and who maintains an ongoing offer to reside at his residence for as long as required. He preferred though to remain based in Melbourne as he has two adult sons there, one of whom resides with him and is presently overcoming illness and requires extra attention in his rehabilitation.
[60] The Applicant says in early 2020 there had been some general discussion amongst his crew around the renewal of the Respondent’s contact with Chevron which they understood was due to expire in September 2021.
[61] In March 2020 he was directed by the Respondent to come to Perth early for his swing due to possible COVID-19 isolation requirements.
[62] On 5 April 2020 two SESOs were terminated by the Respondent. As the Applicant understood it, the reason was that Chevron had told the Respondent it no longer required SESOs at site but that all ESOs were still required.
[63] During May, the arrangements for isolation and payments related to this were the subject of change and became a matter disputed by Mr Ritchie.
[64] On 11 May 2020 the Applicant emailed the Respondent’s HR Manager, Ms Sammels, asking about payment for his isolation period. He says she replied indicating that no further payment would be made and offered EAP services if he needed them. He believes the issue had become a significant source of tension between the Respondent and himself.
[65] His evidence was that on 29 May 2020 he received a phone call from Ms Sammels who indicated she was calling to commence a consultation process as the Respondent intended to remove one position from the Red Swing, the swing he worked on.
[66] In this conversation the Applicant says there was no discussion regarding his skills, qualifications or performance and no discussion regarding the possibility of being redeployed elsewhere if his role came to an end.
[67] That night he received a letter from the Respondent’s COO and General Counsel, Ms Keogh regarding consultation.
[68] The letter relevantly read as follows.
“Consultation regarding the potential redundancy of your position with Parabellum International
Further to our conversation on 29 May 2020, the purpose of this letter is to confirm the findings of a recent review by Parabellum International of its operational requirements and what this potentially means for you.
Market Conditions
Recently, there has been a rapid fall in commodity prices (particularly oil and gas), leading to Chevron “the client” exercising major cost cutting initiatives not just of their contractors, but also of their own staff.
As you are aware, there have been recent decisions made by the client which has resulted in the removal and redundancy
of the Senior ESO’s of Parabellum International from the project as part of their cost cutting initiatives.
Parabellum International will look for ways to minimise the impact of this change, however as a consequence of these initiatives by the client your position at Parabellum International is under review and may be made redundant.
Should your position be made redundant, Parabellum International will explore any suitable alternative positions within the business for which you are qualified and may be re-deployed.
Consultation
Before any final decision is made, we would like to consult with you about the potential redundancy of your position, what this decision means for your employment, what Parabellum International can do to support and assist you at this time to minimise the impact of the proposed redundancy of your position and the possible termination of your employment. We also would like to provide you with the opportunity to raise any matters that you would like Parabellum International to take into account in respect of any proposed redundancy.
For this purpose, we propose to enter into a period of consultation with you and ask you to give us your views about the impact of the proposed changes from now until Wednesday 3rd June 2020 06:00hrs, and invite you to do so by emailing Fiona Sammels Manager - Human Resources and Projects - … or calling her mobile number direct … to provide those views direct.
Once the consultation period has concluded a decision will be made (after carefully considering the information, views and any ideas obtained from the employees effected and after assessing this against business requirements) in regards to the proposed changes, and as such, you will receive formal notification as to whether these changes will directly affect you…”
[69] On the morning of 5 June 2020 whilst waiting to leave for the airport he received a call from Ms Sammels at 10.40 a.m. She indicated that he was the person chosen to be made redundant. He asked if this is actually a redundancy and she replied, “yes it’s a redundancy”.
[70] He asked how they arrived at choosing him and she indicated it was a merit-based judgement. He questioned this and suggested, in terms of years of experience, he would possibly have the most with around 30 years professional service. He also noted he had more qualifications than the others and that there had never been any issues with his performance or conduct.
[71] Ms Sammels then indicated they had exhausted all avenues to find him alternative work within the company on other projects but did not detail what attempts had been made.
[72] After the phone call he looked on Seek and found a job being advertised by Parabellum for an ESO position in at Kalgoorlie, WA.
[73] Later that day, 5 June 2020, he received a termination letter as follows.
“Re: Notice of termination of your employment by reason of redundancy
Further to our discussions on 29th May 2020, the letter emailed to you dated 29th May 2020, and Email correspondence 30 May 2020, it is with much regret that Parabellum International confirms that your position on Barrow Island as Emergency Services Officer has been made redundant and that your employment with the company will end immediately.
As you are aware, this redundancy has arisen because of rapid fall in commodity prices (particularly oil and gas) and Chevron exercising cost cutting initiatives not just of their contractors but their own staff. You would have witnessed these initiatives most recently where our Senior Emergency Services Officers’ roles were unfortunately made redundant on the project.
After several attempts and utilizing our database of clients and inroads we have been unsuccessful in finding you alternative employment which is suitable to you at this time.
As such, please see below redundancy entitlements and payments that will be applicable to you on the end of your employment:
Gross pay | Super payment applicable Y/N | |
Salary for days worked May/June 2020 | $12,835.02 | Y |
Travel allowance for May 2020 | $500.00 | N |
Annual leave payout | $8,785.10 | N |
Payment in lieu of notice (4 weeks) | $10,132.91 | Y |
TOTAL | $ 32,253.03 | |
Please return all company property in your possession at the end of your employment, which includes any company issued equipment, PPE and any access cards.
Please note that our EAP – Lifeworks is readily available should you wish to have a confidential chat at any point, and we attach the flyer for their service with this letter…”
[74] Mr Ritchie’s evidence is that he does not accept that his ESO role is redundant. He says it is currently being advertised and it is an essential role that cannot be removed.
[75] On 21 August 2020, whilst attempting to look for work, he noticed an advertisement on Seek from Parabellum calling for ESO positions for Oil & Gas which is the same position on site from which he was made “redundant”.
[76] Mr Ritchie does not seek reinstatement but wants to be compensated for the income that he has lost as a result of the dismissal.
[77] In response to the Respondent’s witness evidence Mr Richie’s further evidence, relevantly, was that no offer was ever put to, nor were any questions asked of him regarding his willingness to explore other opportunities including his willingness to remain in Western Australia if such opportunities were offered. No names of other sites including the Alcoa site were mentioned.
[78] No request was made of him to submit or update his resume and no mention was made that it would be a merit-based review.
[79] When he started with the Respondent, the ESO role did not require him to have a Diploma of Paramedical Science or a TAE-Training qualification. In his resume it is clear that he is a highly experienced First Responder. He says he was trained by the Melbourne Ambulance Service. His evidence is that his medical experience is above or at least equal to the requirements referred to by Ms Sammels. 11
[80] He says with respect to the Pinjarra based role available at Alcoa at the time he was being considered for redundancy he had never heard about this role. He says he has all of the qualifications listed for this Alcoa role except for the Certificate IV in Health (ambulance).
[81] He says he does do not believe that, if properly considered, this would have been an issue given his First Responder experience and qualifications. 12
[82] Whilst Mr Ritchie agrees he does not hold a Certificate IV in Health (ambulance) he believes he would be credited with recognition of prior learning for previous training and experience and he does not believe he would be required to do the 80 hours practical which is also required for a Certificate IV. He believes his skills and experience are above this Certificate IV level. 13
[83] The Applicant’s evidence was that the two SESOs who were made redundant were offered positions at Alcoa. Both of them declined the offer. His evidence was neither of them had a Certificate IV in Health (ambulance). He says he was also aware of another employee deployed to Alcoa who did not have a Certificate IV in Health (ambulance). 14
[84] With respect to the Applicant’s evidence that two SESO’s and one other person, none of whom held a Certificate IV in Health (ambulance), had been offered a position at Alcoa I note this evidence is hearsay and was first given orally at the hearing.
[85] The relevance of the Applicant’s evidence regarding these persons is limited because there is no evidence as to what particular position they had been offered at Alcoa and importantly whether that position had qualification prerequisites that were the same as the Alcoa position Ms Sammels refers to in her evidence.
[86] In addition, there is no evidence as to what these three persons’ qualifications were at the time. Accepting they did not hold a Certificate IV in Health (ambulance) it is possible, for example, that they had previously been credited with recognition for prior learning to a level equivalent to the Certificate IV, assuming this was a qualification requirement for the position they had been offered. Or perhaps they held another different qualification that was the equivalent or higher than the Certificate IV in Health (ambulance).
[87] None of these persons themselves were called to give evidence to clarify this.
[88] I do not accept the Applicant’s evidence regarding these persons and their experiences at Alcoa contradicts Ms Sammels’ evidence about the position at Alcoa which she considered the Applicant was not qualified for. Her evidence concerned a particular vacancy at Alcoa which was available at the time of the Applicant’s redundancy and the particular qualifications for that position.
[89] Mr Ritchie believes that since being terminated his role has been advertised twice on Seek on 21 August 2020 and 22 September 2020 however, he did not apply for those advertised positions. He says he did not apply because he has no interest in the Respondent given the way he says they treat their employees. He says he would not go back to work for the Respondent “when they are currently sacking or their employees”. 15
[90] His evidence was if the Respondent called him, he would not accept a position. 16
[91] He said he would not apply for a position with the Respondent nor would he recommend anyone apply to them. He says is absolutely disgusted with the way they treated people. 17
[92] He believes there were other employees of the Respondent who were offered the position at Alcoa who did not have the Certificate IV in Health (ambulance). 18
Submissions
The Respondent
[93] The Respondent submits that the Applicant cannot have been unfairly dismissed because the dismissal was a case of genuine redundancy as prescribed in section 389 of the Act.
[94] There is little contest that the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the enterprise.
[95] The evidence clearly supports a finding that the Respondent complied with its obligations under the Agreement which included the model consultation term.
[96] The Respondent undertook a detailed process with respect to consultation.
[97] The Respondent submits assertions by the Applicant that a different process of consultation should have occurred does not demonstrate the Respondent has failed to comply with its consultation obligations.
[98] Any disagreement by the Applicant as to the process for selection the Respondent undertook is not relevant for the purposes of determining whether a genuine redundancy as prescribed in section 389 of the Act occurred.
[99] The Respondent submits that the Commission should conclude that it was not reasonable in the circumstances to redeploy the Applicant. There was only one available position at the time which was the vacancy at Alcoa.
[100] It is submitted the Respondent rightly concluded that the Applicant could not be redeployed to this role because he did not hold the qualifications required and it was not possible for him to be trained or otherwise gained these qualifications in a sensible timeframe given Alcoa’s needs.
[101] Consequently, the Respondent submits that the Commission should be satisfied that the criterion of section 389 of the Act have been satisfied and the dismissal was indeed a case of genuine redundancy and so could not be an unfair dismissal.
The Applicant
[102] The Applicant acknowledges that at the time of the termination of his employment there was a reduction by one in the number of ESOs employed.
[103] The Applicant however submits that the consultation obligations were not satisfied. It is submitted that the Respondent failed to divulge relevant information throughout the process which denied the Applicant the opportunity to influence the outcome both in terms of his selection for redundancy and in terms of a proper consideration by the Respondent of possible redeployment.
[104] It is submitted that there was an obligation to make the Applicant aware that the Alcoa role was available.
[105] The Applicant submits that whilst he did not hold the Certificate IV in Health (ambulance) he possessed qualifications that are equivalent in his opinion.
[106] The Applicant was denied any opportunity to comment on his suitability for the role. He was denied the opportunity to demonstrate recognised prior learning which could have been properly recognised and assessed and any additional training necessary would have enabled him to satisfy the prerequisites.
[107] It would then have been reasonable in all the circumstances for him to be redeployed to the Alcoa role.
[108] It is submitted that what occurred was not a case of genuine redundancy and the jurisdictional objection of the Respondent should be dismissed.
The legislation
[109] Section 385 of the Act states that a person cannot have been unfairly dismissed if the dismissal was a case of genuine redundancy.
[110] Section 389 of the Act prescribes what is a genuine redundancy.
[111] These sections are set out below.
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair
Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Consideration”
“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.”
[112] Considering what section 389 of the Act prescribes, I firstly am satisfied that the evidence demonstrates that the Respondent no longer required Mr Ritchie’s job to be performed by anyone because of changes in the operational requirements of the enterprise.
[113] There is no challenge to the background to this matter that Chevron, the Respondent’s client, as a result of changed circumstances underwent significant cost cutting and the Respondent itself then undertook a review and as a result of the changed operational requirements decided that some jobs were no longer required.
[114] The Respondent decided that four positions were no longer required. Two of those were ESO roles. The Respondent’s selection process determined that one of the ESO roles no longer required was that occupied by Mr Ritchie.
[115] Consequently, Mr Ritchie was notified that the Respondent no longer required his job to be performed by anyone because of changes in the Respondent’s operational requirements.
[116] Secondly, I am satisfied that the Respondent complied with its obligations in the Agreement, including the model consultation term to consult about the redundancy.
[117] There is no factual dispute as to the process undertaken in terms of consulting with employees generally and Mr Ritchie in particular.
[118] There are many ways an employer can go about consultation that would satisfy its obligations to do so. The fact that others may believe different steps or actions could or should have been taken to consult is not to say the employer has not complied with its obligations.
[119] It is not open for the Applicant to contest being selected to be made redundant by attempting to impugn the Respondent’s selection process.
[120] A Full Bench of Fair Work Australia, 19 decided that the process for selecting individual employees for redundancy is not relevant to whether a dismissal was a case of genuine redundancy as follows:
“[27] The terms of s.389 of the FW Act suggest the process for selecting individual employees for redundancy is not relevant to whether a dismissal was a case of genuine redundancy. The relevant Explanatory Memorandum confirms as much. Setting aside jurisdictional pre-requisites and the matters in s.396(a) to (c), FWA only needs to consider s.387(a) concerning whether there was a valid reason for a person’s dismissal related to the person’s capacity or conduct if one or more of the criteria in s.389 of the FW Act, which sets out the meaning of genuine redundancy, have not been met. The criteria in s.389 which have not been met can be taken into account in FWA’s consideration as to whether the dismissal was harsh, unjust or unreasonable as part of s.387(h), being “any other matters that FWA considers relevant”.
[28] We think it unlikely that it was intended that FWA’s consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct would extend to the process for selecting the person for redundancy when:
(i) the process for selecting a person for redundancy is not relevant to FWA’s determination of an unfair dismissal remedy application if the s.389 criteria for a case of genuine redundancy are met, and
(ii) any unmet criteria in s.389 of the FW Act can be taken into account as part of s.387(h) in FWA’s consideration as to whether the dismissal was harsh, unjust or unreasonable.
[29] To conclude otherwise would mean that where an employer met the s.389 criteria for a genuine redundancy the process for selecting the person for redundancy would not be a matter FWA would consider in respect of an unfair dismissal remedy application. However (unless the application was otherwise determined) an employer who did not meet the s.389 criteria because, for example, they failed to consult as required by s.389(b) of the FW Act would have both the failure to consult and the process for selecting the person for redundancy considered in any unfair dismissal remedy application.” (References omitted)
[121] I am bound by this Full Bench authority and consequently any complaints about the selection process are not relevant to determining the jurisdictional objection in this matter that the dismissal was a case of genuine redundancy.
[122] Finally, I will turn to consider whether it was reasonable, in all of the circumstances, for the Applicant to be redeployed within the Respondent’s enterprise or an associated entity of the Respondent.
[123] The possibility of redeployment for an employee whose role has been made redundant requires there be a job available which is suitable, in the sense that the employee has the skills and competence required to perform it immediately or with a reasonable period of retraining.
[124] I find on the evidence the only job available at the relevant time where redeployment of the Applicant could be considered was the position at Alcoa in Pinjarra. This was a casual position where the incumbent would be rostered to work on an ad hoc basis for an uncertain and variable number of shifts in any week.
[125] The client, Alcoa, had specified a set of particular minimum qualifications that were required for the position.
[126] The Applicant had some but not all of those qualifications.
[127] The Respondent’s view was that the Applicant did not have the following necessary qualifications.
• Certificate IV in Health (ambulance) or equivalent
• Certificate IV in Health (ambulance) refresher within last 12 months
• A minimum of two years emergency ambulance experience
[128] The evidence is that the Applicant does not hold a Certificate IV in Health (ambulance).
[129] It was argued, for the Applicant, that he would have been able to demonstrate, if he was given the opportunity, that he held an equivalent qualification by virtue of recognition of his prior learning.
[130] Recognition of prior learning involves assessment by a registered training organisation assessor of information provided by someone about their existing skills, work experience and qualifications to determine whether any credit, partial or full, towards a particular qualification will be awarded for that prior learning.
[131] The Applicant’s opinion was that his prior learning would have been recognised as the equivalent of this Certificate IV in Health (ambulance) qualification. Nothing other than his opinion has been provided to the Commission as evidence regarding this issue.
[132] Relevantly, the evidence is that during this period, because of COVID-19, registered training organisations being the organisations that undertake assessments for recognition of prior learning were closed.
[133] Whilst the evidence is that the usual completion time for a Certificate IV in Health (ambulance) is 12 months, the Applicant gave evidence that even if the lack of this qualification was a problem he could have quickly and easily been trained up to this level.
[134] Even assuming credit towards the Certificate IV would be granted in recognition of his prior learning, the facts remain that the registered training organisations to undertake that assessment of his prior learning and to which he would then need to attend for refresher training were closed.
[135] Considering these circumstances my conclusion is that it would have been many months, at best, before the Applicant would have been able to possibly demonstrate that he held the equivalent of a Certificate IV in Health (ambulance) and so met this element of the minimum qualifications for the Alcoa role. Even if this had occurred the evidence is he was not able to complete the required 80 hours of clinical experience in any event.
[136] In addition, the second qualification requirement the Applicant could not immediately satisfy was that he had not completed the Certificate IV in Health (ambulance) refresher within the last 12 months. If he had been assessed as holding the equivalent of this Certificate IV in Health (ambulance) by virtue of being given a partial or even a full credit for his prior learning it would still have been necessary for him to undertake further training to satisfy this refresher requirement. Again, given the registered training organisations were closed during this period this would not have been able to be satisfied within a reasonable period.
[137] Finally, and noting that each of these qualifications must individually be satisfied for an employee to have met Alcoa’s qualifications, there is no evidence that the Applicant had a minimum of two years emergency ambulance experience.
[138] I accept the evidence that each of these qualifications for this role were mandatory and would not be waived by Alcoa.
[139] My conclusion is the Applicant did not have the competence, in terms of the required formal qualifications, for the Alcoa role and he could not within a reasonable period of retraining achieve these.
[140] It was not therefore reasonable in all of the circumstances to redeploy the Applicant to the Alcoa position nor to any other position within the Respondent’s enterprise, enterprises, or an associated entity.
Conclusion
[141] As explained above I am satisfied that the Respondent no longer required Mr Ritchie’s job to be performed by anyone because of changes in its operational requirements.
[142] I am also satisfied that the Respondent complied with its obligations under the Agreement that applied to Mr Ritchie to consult about the redundancy.
[143] I am also satisfied that it would not have been reasonable in all the circumstances for Mr Ritchie to be redeployed within the Respondent’s enterprise or within an associated entity.
[144] My decision consequently is that Mr Ritchie’s dismissal was a case of genuine redundancy within the meaning of section 389 of the Act.
[145] Because Mr Ritchie’s dismissal was a case of genuine redundancy by virtue of section 385 of the Act, he has not been unfairly dismissed.
[146] This application will be dismissed and an order [PR726053] to that effect will now be issued.
Appearances:
M Sayers of Slater and Gordon representative for the Applicant.
A Toohey of Clayton Utz representative for the Respondent.
Hearing details:
2020.
Perth:
October 20.
Final written submissions:
Applicant, 4 November 2020
Respondent, 27 October 2020
Printed by authority of the Commonwealth Government Printer
<PR726052>
1 Exhibit R1, Attachment 11.
2 Transcript at PN48.
3 Ibid, PN100.
4 Ibid, PN169 to PN172.
5 Exhibit A2 at paragraph 41/
6 Transcript at PN44.
7 Ibid, PN45.
8 Ibid, PN46 and PN146.
9 Ibid, PN128, PN138, PN139, PN141 and PN142.
10 Exhibit A2, Annexure PR-1
11 Exhibit R1 at paragraphs 25 and 26.
12 Transcript at PN270.
13 Ibid, PN310 and PN 333.
14 Ibid, PN334 and PN335.
15 Ibid, PN316 to PN318.
16 Ibid, PN319.
17 Ibid, PN320, PN321 and PN328.
18 Ibid, PN334 and PN335.
19 [2012] FWAFB 5241.
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