Pierre Desertiaux v QGC Pty Limited

[2021] FWC 6579

[2021] FWC 6579

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pierre Desertiaux
v
QGC Pty Limited
(U2021/4265)

COMMISSIONER HUNT BRISBANE, 10 DECEMBER 2021

Application for an unfair dismissal remedy.

[1] On 19 May 2021, Mr Pierre Desertiaux made an application for unfair dismissal remedy under s.394 of the Fair Work Act2009 (the Act) to the Fair Work Commission (the Commission) alleging he had been unfairly dismissed by his employer, QGC Pty Limited.

[2] The Respondent raised a jurisdictional objection to Mr Desertiaux’s application, that the termination of his employment was a case of genuine redundancy as defined in s.389 of the Act.

Background

[3] Mr Desertiaux commenced employment with the Respondent on 16 April 2014 as a QMI Specialist before he became a QMI Lead in 2016. QMI stands for quality measurement instrumentation. Mr Desertiaux was responsible for repair and maintenance of analytical instrumentation and maintaining regulatory compliance of flow metering equipment across the Respondent’s QCLNG facility. Mr Desertiaux performed his role strictly in accordance with the maintenance schedule or at the direction of his superiors.

[4] In late 2020, the Respondent implemented a program called Project Brigalow. While it largely denied it was a spill and fill of all relevant positions, it essentially was.

[5] Mr Desertiaux applied for the following roles:

•  QMI Technician (Midstream) (one position)

•  QMI Technician (Upstream) (one position)

•  Control Systems Engineer (four positions)

•  Lead Maintenance Technician (two positions)

•  LNG Technician (Midstream) (one position)

•  Production Technician (Prelude) (three positions)

[6] On 1 March 2021, Mr Desertiaux was informed that he had been unsuccessful in applying for any of the roles in [5]. He was informed that if a suitable role was not found for him by 19 March 2021, he would be made redundant. On 19 March 2021, he was informed that he was being made redundant. He worked through his notice period, ceasing work on 30 April 2021.

[7] Mr Desertiaux received the following payments on termination:

(a) severance payment of $109,990 gross;

(b) discretionary pro rata performance bonus of $6,074 gross;

(c) annual leave of $15,522.61 gross; and

(d) long service leave of $26,189.17 gross.

Hearing of the application

[8] I listed the matter for a Teams video hearing on 9 August 2021. Mr Garry Pinchen of A Whole New Approach Pty Ltd was granted leave to represent Mr Desertiaux. Mr Nicholas Ellery, Partner of Corrs Chambers Westgarth was granted leave to represent the Respondent. In addition to Mr Desertiaux, the following people gave evidence during the hearing:

•  Mr Allan Cooper, Maintenance Manager;

•  Ms Carolyn Au, Transition Lead;

•  Mr David Allen, Engineering Manager;

•  Mr Justin Golding, Operations Manager Common Systems;

•  Mr Ibrahim Shahin, Maintenance Execution Manager;

•  Mr Jose Mota, Upstream Asset Manager;

•  Ms Daphne Fei, Onshore Production Coordinator;

•  Ms Natalie Hurst, Employment Relations / Industrial Relations Advisor;

•  Ms Sofia Hansen, Employment Relations / Industrial Relations Advisor.

•  Ms Kimberley Melrose, Employment Relations /Industrial Relations Advisor.

[9] Mr Jason Buckingham, Electrical and Instrumentation Supervisor did not initially provide a witness statement, however it became necessary during the hearing to call him and have him give oral evidence. Following the hearing he filed a witness statement.

Legislation

[10] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.”

[11] Section 396 of the Act sets out the following:

“The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[12] As set out above in s.396 of the Act, a consideration as to whether the dismissal was harsh, unjust or unreasonable cannot occur if the dismissal was a case of genuine redundancy. If the Commission determines that the dismissal was a case of genuine redundancy, the application will be dismissed.

[13] Section 389 of the Act provides the meaning of genuine redundancy as follows:

“(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.”

[14] This decision determines the jurisdictional issue as to whether the dismissal was a case of genuine redundancy pursuant to s.389 of the Act.

Respondent’s evidence

Evidence of Mr Allan Cooper

[15] Mr Cooper is employed as a Maintenance Manager. He is responsible for managing the safe and effective execution of all maintenance and turnaround (shutdown) activities at the QGC LNG facility.

[16] In September 2020, the Respondent sent emails to the relevant workforce about its intent to restructure the workforce. Employees were invited to submit their insights into the restructure. Mr Cooper attended meetings with groups and individual employees between September 2020 and November 2020.

[17] Mr Cooper was tasked with forecasting work demands for midstream operations for a two-to-five-year period. In November 2020, the Respondent announced the restructure of its assets and the decision to make major changes to the structure and composition of its workforce – Project Brigalow.

[18] Mr Desertiaux was a QMI Lead Technician in the midstream operations (QMI Technician (Midstream)), reporting to Mr Jason Buckingham, Electrical and Instrumentation Supervisor. One other employee also performed the role of QMI Technician in the midstream operations.

[19] Upstream is where the gas is collected; midstream is the plant where it is converted to LNG. The two QMI Technicians (Midstream) were doing corrective work which has now reduced. While Mr Cooper did not consider there was enough work for two employees, he noted that Mr Desertiaux was not standing around, unproductive. He had been fulfilling a HSE role as chair for two-to-three years. It was determined that where the maintenance department had held the role of chair for around five years, it was now the production department’s opportunity to take on the chair role. Mr Cooper estimated that Mr Desertiaux required approximately three hours per week to fulfil his duties as the HSE chair.

[20] The Respondent used the term ‘shrinking pool’ to refer to a loss of roles. Two QMI Technician (Midstream) roles would reduce to one. It was determined that 1.1-1.2 QMI Technician (Midstream) roles were required. The fraction greater than one being 0.1-0.2 is managed utilising upskilled E&I technicians.

[21] Mr Cooper stated that in the 18 months prior to the dismissal, there had been only one QMI Technician (Midstream) for nine of those months due to leave being taken by Mr Desertiaux and his colleague, and due to the secondment of Mr Desertiaux. The total hours of work performed by the QMI Technicians (Midstream) combined was 2854 hours in 2019, and 2981 hours in 2020.

[22] Mr Desertiaux was an impacted employee, and accordingly, a discussion was held with him on 19 November 2020. Mr Cooper explained the role would be performed by one person. His evidence is that Mr Desertiaux was largely silent during the meeting, but did say, “I’m not sure how you think this role can be done by one person.”

[23] The Respondent appointed a selection panel for Project Brigalow. It consisted of the Asset Leadership Team (ALT) members, Asset Managers and Human Resources personnel. Mr Cooper was not on the panel. Mr Buckingham made a recommendation to the selection panel to have the other QMI Technician (Midstream) in the role, ongoing. This other QMI Technician (Midstream), did not apply for the ongoing role, but was nevertheless placed in the ongoing role, rather than being made redundant. Voluntary redundancies were not on offer, and the Respondent reserved its right to continue the second QMI Technician (Midstream) in the role the employee had already been performing. Mr Cooper gave oral evidence that the second employee would have been uncomfortable applying for the role as he is not, in Mr Cooper’s view, comfortable with confrontation.

[24] Mr Cooper considered retaining the other employee over Mr Desertiaux to be the ‘obvious choice’. His evidence is the other employee met all of the criteria for the role and had exceeded expectations. Mr Desertiaux was, according to Mr Cooper, not meeting expectations in his role based on his past performance review.

[25] Mr Cooper endorsed Mr Buckingham’s recommendation. Mr Cooper did not have any further involvement in any redeployment opportunities for Mr Desertiaux.

[26] Mr Cooper stated that on the rare occasions a two-person task is required, an arrangement is made so that a QMI Technician (Upstream) can support the QMI Technician (Midstream). Since the dismissal, this assistance has been provided approximately two days per month on average by an existing E&I Technician. His evidence is that the area has a backlog of around five weeks, with a target backlog of eight-to-twelve weeks. He considers that there is enough capacity without a second employee employed.

Evidence of Ms Carolyn Au

[27] Ms Au commenced employment with the Respondent in 2018 and has since been employed in various roles. She has been the Transition Lead since 1 April 2021. Between 18 May 2020 and 1 April 2021, and at the time of the redundancy process, she was performing the role of Midstream Asset Manager. As Midstream Asset Manager, her role was to ensure the safe operation of the Respondent’s Midstream LNG Asset.

[28] Ms Au’s duties involved ensuring all personnel were efficiently coordinating operations of the “QGC’s Midstream LNG Asset” (Asset), including receiving gas and processing the gas into LNG before shipping it. She was responsible for ensuring that people understood what their roles were within the business and ensuring that the Asset was working safely and effectively. She had a reporting line of 180 QGC employees and approximately 100 contractors.

[29] Project Brigalow was initially a confidential process within the Respondent. Ms Au was not involved in the process of deciding which roles were redundant and the reorganisation of the structure. She described there being an ‘arm’s length’ distance maintained between the Asset Managers and the reorganisation. There was a representative for each area, including midstream operations, in the discussions about reorganisation.

[30] Once Project Brigalow was announced, managing the organisational structure was a key aspect of Ms Au’s role. Some employees were identified as impacted and were part of a ‘shrinking pool’. For example, there may have been 10 employees performing a role and as part of the restructure, the organisation only required eight roles. These 10 employees were considered impacted. Impacted individuals were then asked to apply for roles in the organisation.

[31] Impacted individuals could apply for up to five roles. Individuals could apply for roles in their existing team, but if they felt they had an interest or an ability to perform a role in another team they were also allowed to apply for those roles. Once applications had been made, an assessment and selection process began to ascertain which employees would be successful candidates for the available roles.

[32] Ms Au was the Asset Leadership Team Member (ALT Member) for midstream operations. She also sat on selection panels for other areas of the business. She described her role as being an ‘independent leader’ to ensure that the other areas of the business were not unfairly swayed towards their own people.

[33] The selection panels were at senior leadership level within the business. The panel consisted of a chair, ALT Members, independent leaders, Line Managers and at least three Human Resources personnel from the business. Hiring Managers were responsible for making an initial employee selection, depending on who they thought was most suitable for the role based on the team members performing the role and the applicants for those roles. The Hiring Manager would then present the recommendation to the selection panel for the position.

[34] The selection panels were given objective selection criteria and position descriptions for each role. The selection panels reviewed employees against key criteria considered to be important skills and capabilities for the strategic direction of the Respondent. With the selection panels Ms Au was on, the assessments were workshopped. Her evidence is that they discussed the criteria and how people were scored. Once they were comfortable with the scoring, they reviewed the rankings and successful applicants to ensure they reached consensus on who comprised the top applicants.

[35] The ultimate final endorsement by the leading ALT member (the Vice President East and QGC) occurred in a final separate session which covered all the assets and departments.

[36] The Midstream Selection Panel was responsible for filling the QMI Technician (Midstream) role located on Curtis Island. As part of the restructure, the role was an impacted role, meaning the overall number of comparable roles reduced across the organisation, reducing from two positions to one position.

[37] Ms Au was not involved in-depth with the restructure design, but from a technical perspective, she is of the view that the organisation did not need two people performing the role.

[38] Ms Au noted that Mr Desertiaux applied for the role and the other employee did not. Her evidence is that the Respondent determined that the selection panels were obliged to appoint the most appropriate person into the role. There were two incumbents for the position, so both were presented as candidates to the Midstream Selection Panel.

[39] Ms Au’s evidence is that the other employee was a far better candidate than Mr Desertiaux. Both Mr Desertiaux and the other employee were qualified for the role and were incumbents. However, the other employee had a much better performance record than Mr Desertiaux. The other employee ranked higher than Mr Desertiaux in all aspects of performance. The other employee consistently performed at a level above expectation and was ranked ‘above expectations’ or ‘exceeds expectations’ for all assessment criteria in his most recent performance review in the role. Mr Desertiaux had some performance issues which were outlined in the Human Resources records system.

[40] The Midstream Selection Panel found that the other employee was the preferred candidate for the one role. Ms Au agreed with this decision.

[41] In her role as Midstream Asset Manager, Ms Au was responsible for determining suitable redeployment opportunities for employees within midstream operations who did not receive a role as part of the initial selection panel process. She maintained a register that contained all the names of ‘at risk’ employees in midstream operations. Ms Au continued to try to match them up with vacant roles. Ms Au’s evidence is that she did not find any suitable roles for Mr Desertiaux through this process

[42] In cross-examination, Ms Au stated that the upstream role had been vacant for some months and it was a matter for the business whether it needed to be filled or not. She stated it was her experience in Australia with the Respondent that it is not encouraged for employees to step down a level.

Evidence of Mr David Allen

[43] Mr Allen is employed as an Engineering Manager. Prior to that role, he performed a temporary midstream/upstream Engineering Integration Lead Role for the organisational transition of the Respondent’s Engineering department. In this transition role, he was the Hiring Manager for any impacted roles in the Engineering department.

[44] In the midstream/upstream Engineering Integration Lead Role, he was responsible for managing the integration of what were previously separate midstream and upstream Engineering departments into a single Engineering department, defining ways of working and managing changes to systems, processes and procedures for the new Engineering department.

[45] In his duties for Project Brigalow, Mr Allen was the Hiring Manager for the LNG Control System Technician Role. This particular role sat within the Engineering organisation and was advertised for applications. This particular role was part of a ‘shrinking pool’ in the restructure, moving from two roles to one role.

[46] As Hiring Manager, Mr Allen was responsible for receiving applications, screening applicants and making recommendations to the selection panel as to the preferred candidates. Candidates for the particular role were assessed according to a position description which was provided to Mr Allen by Human Resources. There were a number of prerequisites for the role, including a requirement that the individual have knowledge of and experience with LNG control systems.

[47] Candidates were also assessed against a template provided by QGC’s Human Resources department. Using the template, Mr Allen ranked candidates according to objective criteria including experience, succession and organisational stability to support the recommendation to the selection panel.

[48] There were four candidates for the role; Mr Desertiaux and three other candidates. Two of the other candidates were performing the role prior to the restructure. Mr Allen shortlisted the two candidates who were performing the role prior to the restructure for the selection panel’s consideration and he ranked them. They were both performing well in the role. They had the background in the control systems work required for the role.

[49] Mr Allen did not shortlist Mr Desertiaux or the other candidate as he had two strong candidates who met the role requirements and had proven experience in the role. Mr Desertiaux had less experience than the two incumbents working with the required control systems. Mr Desertiaux’s experience was as a QMI/metering maintenance technician. Mr Allen’s evidence is that a QMI/metering maintenance technician is very different to the LNG Control Systems Technician role. A QMI/metering maintenance technician role involves the maintenance of quality measurement instrumentation, whereas the role he was filling requires an understanding of overall control systems including logic and all of the hardware in that system. The control systems used at QGC are applicable to a broader range of process variables than quality alone.

[50] Mr Allen’s evidence is that it is possible that Mr Desertiaux could have been developed into the role, but there was only one role available and he had two incumbents with strong performance and proven experience in the area. The successful candidate was performing the role extremely well.

[51] Mr Allen presented the candidates to the selection panel. The candidate Mr Allen ranked as his number one candidate was accepted in the role after consideration by the selection panel. The second highest ranked candidate was made redundant as there were no other redeployment opportunities available for him. After submitting his rankings, Mr Allen was not involved further in the redeployment process for Mr Desertiaux.

[52] In oral evidence, Mr Allen stated that the two incumbent candidates were performing well, and Mr Desertiaux only held part of the skills required for the role.

Evidence of Mr Justin Golding

[53] Mr Golding is employed by the Respondent in the role of Operations Manager for Common Systems. In this role he oversees all of the Respondent’s upstream operations supporting and utilities assets. This includes Automation & Telecommunications, Gas & Water Transmission Pipelines, Upstream Control Room, Power Generation, High Voltage Network, and Water Operations.

[54] Mr Golding has oversight of approximately 170 employees and contractors.

[55] Mr Golding stated that the intent of the Brigalow Project was to simplify the Respondent to achieve a flatter, lower cost, more efficient organisation comprised of more integrated natural teams, centralised provision of shared services, clearer accountabilities, and faster decision making. The Respondent needed to urgently achieve a step change in competitiveness due to changed economic conditions and joint venture partner expectations.

[56] He stated that the review process yielded a new organisational design which impacted a number of existing team members whose roles substantively changed in scope, were reduced in number or were eliminated entirely. Affected employees were invited to apply for vacant roles in the new organisational structure. Hiring Managers were responsible for reviewing candidate applications and ranking them before making a recommendation up to selection panels.

[57] Selection panels were established to manage final selection decisions for all roles to be filled in the new organisational structure. This included placing impacted individuals into new roles, where available. The selection panels were made up of company leaders including the applicable business unit leadership team members, independent Asset Leadership Team Members, and Human Resources personnel. In some instances, a member of the selection panel was also the Hiring Manager for a given role.

[58] Mr Golding was the Hiring Manager for the Control System Engineer roles (Engineer roles), of which there were four roles available, and QMI Technician (upstream) role (QMI upstream role), of which there was one role available. As Hiring Manager, he was responsible for reviewing candidates for roles and assessing their suitability for the role against the objective criteria set by the Respondent.

[59] Candidates were scored against criteria such as experience, succession and stability. Mr Golding described the review as a ‘desktop selection’ process. To inform his review, he had an individual’s CV and talent card (an internal profile from the HR system). Where he did not have direct knowledge of a candidate and he was able to, he had conversations with an individual’s current manager or discipline leader who had more knowledge than Mr Golding about the candidate.

[60] After reviewing this material and speaking to relevant managers, Mr Golding ranked the candidates, largely based on technical ability with consideration of any additional performance or behavioural feedback that he had received (where available). He then provided his rankings and recommendations to the selection panels, along with commentary on the candidates.

[61] Mr Golding also sat on all of the selection panels for Upstream Operations as a member of the Upstream Operations Leadership Team. As a result of being both Hiring Manager and a selection panel member for the Engineer roles and the QMI upstream role, Mr Golding presented his candidates and assessment summary to the panel. He then left it to the wider panel to decide whether his recommendations were supported or not supported. The selection panels collectively made the final decisions regarding successful candidates for the roles.

[62] There were four candidates for the Engineer roles. These roles require specific technical experience with numerous types of control system hardware and software. These roles undertake maintenance activities but are also involved in the design and execution of changes to the control system to correct issues, optimise performance, and introduce new functionality. The implementation of changes to the control system requires a high level of technical expertise due to the potentially serious safety and asset damage consequences to operating hydrocarbon facilities if this work is not done correctly. This requirement is what differentiates the role from the scope typically undertaken by a technician conducting maintenance in the field.

[63] When completing his assessment of Mr Desertiaux, Mr Golding recalled that his CV did not reflect the necessary level of control system engineering experience or relevant qualifications to meet the requirements of the Engineer roles. Mr Golding determined that Mr Desertiaux was not technically competent for the role. He had strong QMI/E&I technician level experience over the last ten plus years but did not have a number of the key requirements of the Engineering roles. For example, he did not have direct experience in an equivalent control system engineering role, experience with the broad range of control system technologies employed in Upstream Operations or experience with software development. Mr Golding considered that the breadth of these gaps versus the core requirements of the role exceeded what might reasonably be remedied through additional training.

[64] The Engineering roles are job group level 5, therefore as Mr Desertiaux was in a job group level 6 role at time of his application, appointment to the Engineering roles would involve a promotion. Given the breadth of his competency gaps for the Engineering roles, Mr Golding could not support a promotion. Mr Golding did not shortlist Mr Desertiaux for the role because he did not meet the criteria in the position description for the Engineer roles and therefore was also not eligible for promotion.

[65] The selection panel for the Engineer roles agreed with Mr Golding’s assessment and recommendation not to place Mr Desertiaux in the Engineer roles.

[66] In reply evidence, Mr Golding stated that Mr Desertiaux’s skill and experience gaps exceed what might reasonably be remedied through additional training. Mr Golding’s evidence is that Mr Desertiaux’s declared skills and experience do not make him competent to perform the Control System Engineer role with reasonable training.

[67] Where Mr Desertiaux states that he is highly experienced with control systems from a number of manufacturers in roles from commissioning to maintenance, Mr Golding stated that the Control System Engineer role is a system engineering position, requiring higher level competency than commissioning and maintenance roles which are typically undertaken by technician level resources.

[68] Mr Golding stated that the upstream control system is substantially larger and more complex than the system used by the midstream facility. There is some overlap of technology, but the configuration and setup of the upstream control system is entirely different and unique.

[69] Mr Golding provided many rebuttals to Mr Desertiaux’s evidence relevant to his experience and how it is not suitable for the Engineering roles. He was not cross-examined on this.

[70] The Respondent had not, at the time of the hearing, filled the Engineer roles internally as no internal candidates have been able to meet the required skillset. These roles continue to be staffed by the incumbent contractor resources who have been undertaking these duties since before Mr Golding commenced his role as Operations Manager Common Systems.

[71] Mr Desertiaux also applied for the QMI Upstream Role position which was one of nine such staff positions in Upstream Operations. Prior to Project Brigalow, the QMI Upstream Role had been vacant since March 2020 due to an internal promotion. As the QMI Upstream Role had been vacant, it was advertised as an available role. Mr Desertiaux was the only applicant for the role.

[72] Mr Desertiaux was performing a similar role in the Midstream operations, so he met all criteria in the position description for the QMI Upstream Role. However, Mr Desertiaux’s role was a job group level 6. The QMI Upstream Role was a job group level 7. This means that Mr Desertiaux’s current role was at a higher job grade than the QMI Upstream Role. He would have to be downgraded to undertake the QMI Upstream Role.

[73] Mr Golding recommended Mr Desertiaux for the QMI Upstream Role to the selection panel, on the basis that he was technically capable, but noted that a job grade reduction would be required. When the QMI Upstream Role went to the selection panel, other selection panel members provided feedback that Mr Desertiaux had received a ‘Lower’ performance rating in 2020 and did not display the right behaviours. The selection panel then decided that downgrading and selection of Mr Desertiaux for the QMI Upstream Role was not supported.

[74] Accordingly, no suitable candidate was identified for the vacant QMI Upstream Role. Shortly after the selection process, it was decided that the QMI Upstream role should be removed from the organisation. During the Brigalow design work, the Upstream QMI team was only lightly reviewed and the opportunity to reduce staffing levels was overlooked until the above process prompted deeper discussion on the present need for the additional QMI Upstream Role. Consequently, it was decided to remove this vacant role from the organisation given that the team had successfully managed without this resource for 12 months.

[75] Mr Golding’s evidence is that the QMI Upstream Role is now not a required position at QGC. This position is not being performed by anyone at QGC and all work has been redistributed to other team members.

[76] In cross-examination, Mr Golding noted that during the panel discussion for the QMI Upstream role, Mr Desertiaux was considered technically very good, however it was noted that there had been some interpersonal issues. Ms Au particularly noted that his 2020 rating was low. The panel’s view was that he was not to be selected.

Evidence of Mr Ibrahim Shahin

[77] Mr Shahin is employed by the Respondent in the role of Maintenance Execution Manager. His duties are to manage the resources and all execution across the Maintenance Team in the Respondent’s Upstream operations. His role also involves ensuring the Respondent has trained and competent people executing maintenance activities.

[78] During Project Brigalow, he was appointed Hiring Manager for two Lead Maintenance Technician Roles (Lead Roles). The Lead Roles were newly created roles as a result of the restructure and sat within the campaign team. The campaign team undertake the regular 24 month and 48 month services, so there is a dedicated team performing the same services.

[79] The Lead Roles are required to be the most technically competent person in the area. The Lead Roles need to be able to coach and enable work execution by the technicians on site. The Lead Roles for the campaign team need to be even more technically competent as they are working across Instrumentation and Electrical as well as Mechanical components of the services. The Lead Roles for the campaign team need to have a continuous improvement mindset and a strong ability to engage a wide range of stakeholders and co-ordinate resources, parts and contractors with ease.

[80] Although Mr Shahin was the Hiring Manager for the Lead Roles, he did not review and rank the candidates as he was on paternity leave at the time. Mr Gary Cardiff, Maintenance, Reliability & Turnaround Manager effectively took on the role as Hiring Manager on his behalf. Mr Cardiff undertook an assessment and review of the candidates and presented to Mr Shahin with an initial shortlist of candidates for the Lead Roles. He had ranked the shortlisted candidates from one to three.

[81] Mr Shahin reviewed Mr Cardiff’s shortlisted candidates and approved his shortlist and rankings. Mr Cardiff provided this to the selection panel on Mr Shahin’s behalf, which he understands was approved by the selection panel.

[82] There were seven candidates for the Lead Roles; Mr Desertiaux and six others. When Mr Cardiff presented his top three rankings to Mr Shahin, Mr Desertiaux was not in these rankings. Mr Shahin did not review Mr Desertiaux’s application because he was not shortlisted. Mr Shahin only reviewed the candidates who ranked within the top three.

[83] Mr Shahin’s evidence is that he spoke with Mr Cardiff who advised him that Mr Desertiaux was not selected for the Lead Roles because the position required skills that he did not have. Mr Desertiaux had a lack of experience at lead level and in managing a team. There were better suited candidates appointed to the role. The candidates ranked one and two were the successful candidates after consideration by the selection panel. The successful candidates were performing lead roles prior to the restructure and they had a mechanical background and a long history with performing these services.

[84] Mr Shahin’s evidence is that Mr Desertiaux had an instrumentation background but was not familiar at all with performing these services before. He stated that it is possible that Mr Desertiaux could have performed in the Lead Roles if he received additional training, however, it would have been difficult. The Lead Roles are required to be the most technically competent roles in an area and Mr Desertiaux would not have been the most technically competent. Mr Desertiaux was not familiar with the kit or the equipment.

[85] On 23 March 2021, Mr Shahin was asked by Ms Catherine de Gannes, Human Resources, if he had any suitable roles in his team that Mr Desertiaux could perform. Mr Shahin informed Ms de Gannes that he did not have any remaining roles after the restructure.

[86] In oral evidence, Mr Shahin stated that the two employees who were given the two Lead Roles were subject matter experts and had performed the work hundreds of times.

Evidence of Ms Kimberley Melrose

[87] Ms Melrose is employed by the Respondent as an ER/IR Advisor. Ms Melrose reports to Ms Catherine McGonigle, ER/IR Advisor who is employed by Shell Australia Pty Ltd (Shell).

[88] The Respondent is a venture operated by Shell. As part of the Shell group, Shell employees assist in managing the Respondent’s processes and vice versa.

[89] Employees in the upstream operations of the QGC are employed by QGC Pty Ltd.

[90] In 2020, QGC made the decision to restructure its assets; ‘Project Brigalow.’ Project Brigalow was the result of a Shell global requirement to review the QGC Asset to reduce cost, and ensure the structure and manning numbers were sustainable in the medium to long term. Project Brigalow was one of the first assets reviewed globally with a proposed new structure commencement date of 1 April 2021.

[91] There were many positions impacted by the restructure that reduced the overall number of roles available across the business. As a result, some individuals were identified as being ‘impacted’, meaning that their roles were removed or changing by at least 30%. Ms Melrose recalls that Mr Desertiaux’s role was part of a ‘shrinking pool’. The role he was performing prior to the restructure, QMI Lead (Midstream), was reduced from two role to one role and the title was changed to ‘QMI Technician’. There was another employee also performing the role of QMI Lead (Midstream).

[92] The QMI Lead (Midstream) role was reduced from two roles to one role because QGC could not justify the workload for two QMI Leads in Midstream operations in the new organisational structure.

[93] During Project Brigalow, individuals that weren’t ‘impacted’ were ‘mapped’ to roles. If the role was part of a shrinking pool, an employee could not be ‘mapped’ to a role. In that situation, the remaining role would remain vacant and employees would need to be considered for that role. Any vacant roles were advertised so that those in impacted roles could apply. Impacted individuals were permitted to apply for up to five vacant roles.

[94] After individuals applied for vacant roles in the ‘WorkDay’ recruitment system, Hiring Managers were required to review the candidates. Hiring Managers were responsible for shortlisting candidates and then ranking the shortlisted candidates. Hiring Managers provided their rankings to the selection panel. Selection panels were comprised of a number of QGC leaders and Human Resources personnel. The selection panels were separated into business functions, managed by a specific Asset Leadership Team Member (ALT Member). Within these functional panels the roles were then reviewed in job grade groupings.

[95] There were panels established for QGC’s Technical team, Upstream operations, and Midstream operations, and subsequently for job grades and positions within those areas. The selection panels always had one independent leader from another area of the business to ensure that an area of the business was not biased towards the team members in their area. The selection panels were also made up of a diverse group of leaders ensuring different genders, ages, cultures and technical experience.

[96] The selection panels reviewed the rankings provided by the Hiring Managers and the information on the candidates. The selection panels had a number of objective criteria that they were required to assess employees against. The selection panel would then determine employee suitability for the roles. The outcome of the selection panels was then independently reviewed by all ALT Members, to ensure that the outcomes were based on objective criteria and not influenced by any potential biases.

[97] The ALT Members held an endorsement session to review and approve the outcomes of the selection panels. The ALT Members endorsed the outcomes of the selection panels. The ALT Members were also provided with a list of roles which remained vacant and a list of ‘At Risk’ employees, being employees who had not obtained roles as part of the selection panel process.

[98] Selection panels took place from 9 February 2021 to 15 February 2021. Ms Melrose was appointed to sit on all selection panels during the restructure for job grade 3 and below. As the representative for ER/IR on the panels, Ms Melrose was responsible for supporting the review process and ensuring risks for impacted employees were mitigated. During the panel, Ms Melrose considered impacted individuals who had not yet been placed in a role. If there were roles in the organisation that were not currently filled, effort was made to see if any of those ‘At Risk’ individuals would fit into vacancies.

[99] Mr Desertiaux applied for five roles during the restructure.

(a) QMI Technician (Midstream) Role

There were two candidates for the QMI Technician (Midstream) role, Mr Desertiaux and one other candidate. Both Mr Desertiaux and the other candidate were performing the role prior to the restructure. Mr Desertiaux was not selected for the role. The other candidate was a standout candidate and ranked higher than Mr Desertiaux on all of the role requirements. Ms Melrose is aware that there were some concerns with Mr Desertiaux’s performance. Mr Desertiaux’s past performance review indicated that he was not meeting all of the expectations in his role. The other candidate was the preferred candidate because he had exceeded all expectations in past performance reviews and was a stronger performer.

(b) QMI Technician (Upstream) Role

Mr Desertiaux was shortlisted for the QMI Technician (Upstream) role by the Hiring Manager. However, as this role was a job grade lower than Mr Desertiaux’s current grade, the selection panel did not endorse him to be downgraded. He was not endorsed for downgrading as he was not meeting all of the expectations of his current role. If an individual is ‘downgraded’ within Shell, their job grade changes but their remuneration remains the same. If the downgrade was approved, Mr Desertiaux would have been paid significantly more than other QMI Technicians in Upstream.

After the selection panel process closed, the QGC business considered the remaining vacant roles and challenged them. It was decided that the QMI Technician (Upstream) role would be removed from the organisation given that the Upstream operations team had successfully managed without the role for 12 months prior to the restructure.

Ms Melrose stated that the QMI Technician (Upstream) role that was advertised as part of the selection panel process is not required at QGC. The role is not being performed by anyone at QGC (as it is not a required role). Some other roles which were advertised but were vacant after the selection panel process were also removed as part of Project Brigalow. These roles are also not being performed by anyone at QGC as they are not required.

(c) Lead Maintenance Technician Role

Ms Melrose stated that Mr Desertiaux was not appointed to the Lead Maintenance Technician role because he lacked the necessary technical skills to perform the role. The Lead Maintenance Technician role was in the Upstream Operations business. Mr Desertiaux was working in the Midstream Operations. Midstream and Upstream are completely different. To work in the Lead Maintenance Technician role, the individual was required to have knowledge of the Upstream operations.

QGC needs Leads to be senior technical experts. As the Lead Maintenance Technician role was technically complex, it is Ms Melrose’s evidence that Mr Desertiaux would have required a lot more training to be able to perform this role. It was determined that he was not a technical expert, and he lacked the knowledge of the upstream operations. To move from Midstream to Upstream would have been difficult in this role.

Ms Melrose held the view that the Lead Maintenance Technician role was not appropriate for someone who didn’t have the required experience within the Upstream business as it was a technically complex role. The Lead Maintenance Technician was also a newly created role responsible for the newly created campaign maintenance team. The role would be responsible for being a technical expert working across the Surat Basin, on equipment that varies considerably across the regions. This meant that the role needed to be performed by an individual that knew the Upstream business.

(d) Control System Engineer Role

Ms Melrose stated that Mr Desertiaux’s talent and competency profile was not suitable for the Control System Engineer role. There were four applicants for four available Control System Engineer roles and none of the applicants had the specific skillset required for this role. Due to the highly technical systems QGC uses, the Control System Engineer role requires a specific skillset. Mr Desertiaux did not have any experience as a Control System Engineer, and as this role is critical for the Upstream business, these skills cannot be learned on the job. Ms Melrose also understands that Mr Desertiaux was not qualified for the Control System Engineer role. An engineering qualification was not mandatory but was preferred, unless the employee had other experience that demonstrated this technical competence.

This role would have been a promotion for Mr Desertiaux. The Control System Engineer role was a job group 5, whereas Mr Desertiaux was employed as a job group 6. Individuals at job grade 5 level were usually qualified engineers.

(e) LNG Control Systems Technician Role

Ms Melrose stated that there were four candidates for the LNG Control Systems Technician Role, Mr Desertiaux and three other candidates. Two of the other candidates were already performing the role prior to the restructure. One of these incumbents was selected for the LNG Control Systems Technician Role. Mr Desertiaux was not successful in this role because according to Ms Melrose, he did not have the required skills, nor did he have any experience in control systems. The incumbent who was the successful candidate was a strong performer and had the background in control systems work required for the role.

[100] Ms Melrose stated that the individuals who were not successful in obtaining a role during the selection panel process were considered ‘At Risk’ individuals. Mr Desertiaux was considered an ‘At Risk’ individual. Ms Melrose stated that she worked closely with Ms de Gannes, who was also the Talent Representative for Project Brigalow and managed the list of ‘At Risk’ individuals.

[101] Ms Melrose and Ms de Gannes created a list of the roles remaining vacant. For any vacant roles that were not filled during the resourcing period, they continued to see if they could match ‘At Risk’ individuals to these roles. Ms Melrose stated that they also monitored any resignations across the business and whether ‘At Risk’ employees could be moved into these roles. Ms Melrose and Ms de Gannes met with each ALT Member to make sure there were no other options for ‘At Risk’ employees.

[102] Ms Melrose stated that the Project Brigalow redeployment process continued until 30 April 2021, which was the last day on payroll for most ‘At Risk’ employees. Ultimately, there were 26 individuals for whom the Respondent could not find roles, and who were made redundant.

[103] In cross-examination, Ms Melrose recalled during the panel discussions that Mr Desertiaux’s values had been discussed. It was considered that he did not appear to have an issue with honesty and integrity, however there were concerns regarding his respect in the workplace as he had challenged some decisions.

[104] Regarding downgrading of roles, Ms Melrose stated that it very rarely happens in Shell, as the global pay policy requires the employee to retain the higher payment despite the lower classification. She stated that a downgrade for Mr Desertiaux was not supported by the panel, given Mr Desertiaux’s behaviours.

Evidence of Ms Daphne Fei

[105] Ms Fei is employed as an Onshore Production Coordinator. She stated that in late February 2021, Mr Desertiaux applied for a Production Technician role on Prelude, Shell’s floating LNG facility off the coast of Western Australia.

[106] Approximately 12 internal employees from Shell companies applied for three Production Technician roles. On 17 March 2021, seven of the applicants were shortlisted for interview. This did not include Mr Desertiaux as he did not meet the requirements of the role. He had maintenance experience in instrumentation and electrical, but that did not correlate for the experience required for a production technician role.

[107] Ms Fei’s evidence is that Mr Desertiaux would have required years of experience to competently perform the job. Ultimately no employees were offered the three roles as the Offshore Installation Manager determined that none of the applicants had the required experience for the roles.

[108] In cross-examination, Ms Fei stated that the required qualification would be a Cert III or IV, or 10 years’ operational experience.

Evidence of Ms Sofia Hansen

[109] Ms Hansen is employed by Shell Australia Pty Ltd (Shell) as an ER/IR Advisor. She is responsible for proactive employee-related engagements, including managing performance and addressing behavioural issues, responding to employee grievances and conducting investigations.

[110] Ms Hansen learned from Ms Hurst that in 2020, Mr Desertiaux raised a grievance regarding his performance rating and limited career progression opportunities via the Shell Grievance Procedure (First Grievance). Ms Hansen was not involved in investigating the First Grievance.

[111] On 1 April 2021, Mr Desertiaux raised a second formal grievance with the Business Integrity Department (BID) through Shell’s Global Hotline (Second Grievance). Mr Jet van Dijck from the BID then forwarded the grievance to Ms Catherine McGonigle by email.

[112] On 7 April 2021, Ms Hansen received the Second Grievance case report. Her understanding of the Second Grievance was that Mr Desertiaux alleged that he had not been treated fairly during the Project Brigalow restructure and resourcing process. He alleged that he was qualified for the two QMI roles for which he applied, including his own role (QMI Technician (Midstream)) and another role (QMI Technician (Upstream)) but was not successful because he had been actively blocked from reemployment and redeployment.

[113] Mr Desertiaux also alleged that his First Grievance had not been fully concluded.

[114] Ms Hansen was appointed Lead Investigator for the Second Grievance. She and Ms McGonigle decided that Ms Hansen would do an initial review to understand if there was a basis for a full investigation in relation to the Second Grievance. Ms Hansen spoke to three individuals to inform her assessment for the initial review. Sometime between 1 April 2021 and 10 May 2021, she had a conversation with Ms Hurst, as Ms Hurst was responsible for investigating the First Grievance.

[115] They spoke about the investigation and outcome, including Mr Desertiaux’s performance. Ms Hurst informed Ms Hansen that her investigation found that there were concerns with Mr Desertiaux’s performance and one of the recommendations from her investigation was placing him under a Performance Improvement Plan. After speaking with Ms Hurst, Ms Hansen was satisfied that the First Grievance had been thoroughly investigated and closed out.

[116] Ms Hansen also discussed the matter with Mr Greg Woworr, the Recruiter for the QMI Technician (Midstream) role, and Mr Golding. After speaking with them, Ms Hansen was satisfied that Mr Desertiaux was not treated unfavourably as he alleged. She formed the view that QGC correctly followed all reorganisation processes and obligations on Project Brigalow and that his redundancy was the outcome of a fair process. She was also satisfied that his First Grievance was concluded. She did not consider that a full investigation into the Second Grievance was required. On 10 May 2021, Ms Hansen wrote to Mr van Dijck, closing out her review. Mr van Dijck informed her that the case been closed in the Global Hotline.

[117] In cross-examination, Ms Hansen stated that she was satisfied that the other employee had been awarded the QMI Technician (Midstream) role, and the Upstream role had never been filled. She noted that Project Brigalow’s purpose was to reduce costs. She considered that the role had not been filled for a long period of time and she did not feel further investigation was warranted.

Evidence of Ms Natalie Hurst

[118] Ms Hurst is employed by Airswift Pty Ltd and contracted to QGC Pty Limited as an ER/IR Advisor. She is responsible for providing employment relations and industrial relations advice to the Shell business, which includes Upstream, Midstream and Prelude.

[119] In December 2020, Mr Desertiaux sent a grievance to HR Operations regarding:

(a) his final end of year review not being conducted fairly by his supervisor, Jason Buckingham on the basis that no conversations were held around underperformance but the online end of year review reflected performance concerns, as did his final ranking; and

(b) he was not provided with career progression opportunities, (together, the Grievance).

[120] Ms Hurst was asked to investigate the Grievance. In doing so she interviewed:

(a) Mr Desertiaux;

(b) Jason Buckingham, Maintenance Supervisor and Mr Desertiaux’s supervisor;

(c) Peter Young, Maintenance Superintendent and Mr Buckingham’s manager; and

(d) Allan Cooper, Midstream Maintenance Manager and Mr Young’s supervisor.

[121] After meeting with the above interviewees and reviewing relevant documents, she found:

(a) On 16 November 2020, an end of year review conversation was held between Mr Buckingham and Mr Desertiaux. In that conversation, Mr Buckingham told Mr Desertiaux that he was struggling for motivation and it showed, and that overall he was not performing at the level of a job group 6;

(b) Mr Desertiaux read his online performance review and was unhappy with what he read. He then requested a further meeting with Mr Buckingham and Mr Young to discuss;

(c) In the meeting on 1 December 2020, Mr Buckingham and Mr Young told Mr Desertiaux that his attitude is not at the level of a job group 6 and he had a negative attitude. Mr Desertiaux had previously been made aware of these issues by Mr Young in May 2019 and Mr Cooper in February 2020;

(d) Mr Desertiaux also did not achieve two of his seven performance goals. The goals not achieved were low flow cut-offs and QMI backlog reduction CM and PM backlog;

(e) Mr Buckingham, Mr Young and Mr Cooper all agreed that Mr Desertiaux’s performance concerns remained; and

(f) Mr Desertiaux did not meet all of his performance goals for 2020.

[122] In relation to career progression opportunities, Mr Desertiaux’s key concern was that he was being rejected for an electrical apprenticeship. After her witness interviews and review of the relevant documents, Ms Hurst found that the electrical apprenticeship was not being supported as:

(a) QGC does not hire apprentices and trainees directly;

(b) Mr Desertiaux’s current role did not require an electrical licence;

(c) The individual development plan is focused on supporting an employee to achieve a high standard in their current role. It is only once that is achieved that the focus can be shifted to the next assignment;

(d) Mr Desertiaux was not performing the role to the expected standard and obtaining an electrical apprenticeship would not assist him to perform to a high standard as the areas for development were not technically based;

(e) The successful completion of an electrical apprenticeship would, at best, provide Mr Desertiaux with a job group 7 role, which was below Mr Desertiaux’s current job group 6 role.

[123] Ms Hurst recommended that:

(a) Mr Desertiaux be placed on a performance improvement plan so that he could clearly understand the areas of performance and attitude he was not meeting;

(b) career development conversations could commence once the performance improvement plan had been initiated and improvements had been documented; and

(c) Mr Desertiaux be permitted to apply for roles in Upstream, ensuring he followed business guidelines in applying for roles outside of Midstream (where he worked at the time).

[124] On 20 January 2021, Ms Hurst met with Mr Desertiaux to share with him the findings of the investigation. She told him once Mr Buckingham returned from leave they would discuss the recommendations. On 10 February 2021, Ms Hurst and Mr Buckingham met with Mr Desertiaux to discuss the performance improvement plan. Mr Desertiaux asked for some time to review the document that was provided to him, to which the business agreed.

[125] Mr Desertiaux recommended some changes to the performance improvement plan on 11 February 2021 which were made to the document. On 18 February 2021, Ms Hurst was copied into email correspondence between Mr Buckingham and Mr Desertiaux around some queries that Mr Desertiaux had. Mr Desertiaux returned a signed copy of the performance improvement plan on 19 February 2021. Ms Hurst was informed by Mr Buckingham and saw review documentation to confirm that he and Mr Desertiaux met to discuss Mr Desertiaux’s performance and conduct on 8 March 2021, 22 March 2021 and 15 April 2021.

[126] On 14 March 2021, Ms Hurst was forwarded an email from Mr Young attaching a letter from Mr Desertiaux to Buckingham, dated 11 March 2021 which reads:

“Jason

I found out through the grapevine yesterday that the QMI position has not been filled. I’m still awaiting official feedback, but I am led to believe this is only because of my grade 6 level.

I spoke to my wife last night and we agreed we needed to put our thoughts on paper for consideration.

As you and I know the past year has been challenging for several reasons. The back end of 2019 and the start of 2020 was certainly the lowlight of my entire career, life and marriage. However, looking back it could also be the turning point I needed for a decay that had set in long before. It is now clear to me that my mental health had been declining for a long period before I began to seek help at the very end of 2019. I can accept I lost perspective of what was realistically possible within the bounds of my current employment and probably caused yourself and others distress, please accept my apologies for this and extend them to all others I have affected. I am happy to do this face to face if given the chance, as I sincerely do wish to make amends and if at all possible, continue my employment with Shell.

I do believe every cloud has a silver lining and the experience will remain valuable lesson to me going forward.

I understand now the lower rating given to me, is a reasonable response to behaviours displayed. I also understand why I didn’t get selected for my current role. I simply didn’t deserve it. I am pleased [name] got the role. I’m sure he’ll do a great job and I’m happy to support you both for as long as I’m able.

I’d like to give you a personal view on 2019/20. As I’ve already touched on, I was really struggling around the turn of the year. I think I hit the bottom around February 2020, but I also believe with the help of medication and EAP counselling, this was also when I began to recover. By June, I feel I was beginning to make noticeable progress in my recovery. Ironically from my perspective, my injury in July, was a good thing. The period away from work gave me the time I needed to reflect and recover. By the time I returned in October I was in a better place than I had been in a very long time.

Sadly, I returned to a backdrop of project Brigalow which, I feel I’d be safe to say, we have all found to be challenging. However, throughout this period I have tried to maintain my spirit and I’d hope you have found me to be a better version of the person I began the year as. I understand we have had our differences over the performance rating but I hope you can now see a little better, after reading this far, why I was having trouble accepting the rating given. If I were to rate myself today I’d go with ‘acceptable’ but I do see that is not reflective of the entirety of the 2020 journey. I’d like to have the chance to improve further in 2021 and return to strong, which brings me to my request.

If the only block for me being placed in the upstream role is my grade, I’d thankfully accept the grade 7 position and readily accept the monetary loss of my island allowance or similar. I respectfully, ask this is taken forward through the chain to the Brigalow panel for consideration.

To my family, it would mean life could continue in Gladstone with minimal disruption to the happy life we have established here and avoid the potential effects on the education of my children if we had to move. This in turn may restrict access to the children’s only living grandparent. To me, this would mean the world to my continued recovery.

From a business perspective, I believe I have a lot to offer the upstream role and potentially have unique attributes owing to my history. I’d bring strength to their team with my technical ability and be well placed to consider issues affecting the QCLNG facility for example the oil currently being seen on the train inlets. The company has invested a great deal of money in my training and would need to repeat this training for another technician, whereas I could hit the ground running. I believe I would be a welcome member of the team based on recent conversations with our upstream colleagues. I would also offer the unique benefit as an emergency replacement or technical support for others, should [name] fall ill or leave QCLNG. My QCLNG familiarity would potentially bring the two teams closer together, my knowledge of who is who and systems familiarity should help expedite issues and benchmark best practice between the two teams. Likewise, I would also be a familiar point of contact for the site in the event of issues.

In essence, I’m asking for a second chance. I don’t honestly know if I deserve it but for the good of my family, I feel compelled to ask.

3 Jones v Department of Energy and Minerals [1995] IRCA 292 (16 June 1995), [(1995) 60 IR 304 at p. 308 (Ryan J)]; cited with approval in Ulan Coal Mines Limited v Howarth and others[2010] FWAFB 3488 (Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32].

4 Ibid.

5 [2010] FWA 674.

6 [2010] FWAFB 3488.

7 (1995) 60 IR 304.

8 Ulan Coal Mines Limited v Honeysett (2010) 199 IR 363 at [28].

9 [2017] FWCFB 6847 at [20].

10 [2014] FWCFB 714, (2014) 240 IR 130 at [36].