Sharlene Lindsay v Department of Finance and Deregulation
[2011] FWA 4078
•14 JULY 2011
[2011] FWA 4078 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sharlene Lindsay
v
Department of Finance and Deregulation
(U2010/13120)
COMMISSIONER WILLIAMS | PERTH, 14 JULY 2011 |
Application for unfair dismissal remedy.
[1] This matter is an application made under s. 394 of the Fair Work Act 2009 (“the Act”) alleging that the Applicant Ms S Lindsay was unfairly dismissed.
[2] The Applicant had worked as an electorate officer in the office of Dr Jensen M.P. who is the Federal Member for Tangney.
[3] The parties agree the Respondent in these proceedings is the Commonwealth of Australia, represented by the Department of Finance and Deregulation. This is because Senators and Members of the Parliament of Australia employ their own electorate officers, on behalf of the Commonwealth of Australia, in accordance with section 20 of the Members of Parliament (Staff) Act 1984 (Cth). The Department of Finance and Deregulation (the Department) exercises management responsibilities on behalf of the Commonwealth of Australia under the direction of the Special Minister of State in relation to the employment of electorate officers by Senators and Members.
[4] This application was the subject of a conciliation conference with a Fair Work conciliator however it was not settled at that point and has been referred on for hearing.
[5] At the hearing, Mr S Heathcote appeared for the Applicant and Ms L Black appeared for the Respondent.
Background
[6] The Applicant commenced employment with the Respondent on 8 June 2008 in the position of Senior Advisor Electoral Office Manager.
[7] On 30 August 2010, the Respondent advised the Applicant by email that the staffing arrangements in the office were being restructured. The email explained that the Applicant’s position was not being retained and the Applicant would have to reapply for one of the other positions being offered.
[8] At a meeting on 6 September 2010, Dr Jensen told the Applicant that the office was being restructured, that her position was no longer required and that she was welcome to apply for another position.
[9] The Applicant did not apply for any of the new positions in the restructured office.
[10] On 28 September 2010 the Applicant received a letter of termination advising that her employment had been terminated on 23 September 2010.
The Applicant’s Submissions
[11] The Applicant is 45 years of age with 20 years of management experience and 22 years of media and public relations experience.
[12] On 26 August 2010 the Applicant went on sick leave to undergo major surgery.
[13] On 30 August 2010, whilst on sick leave, the Respondent advised the Applicant, by email, that:
(a) the office was being restructured;
(b) the Applicant’s position of office manager was not being retained; and
(c) the Applicant would have to reapply for one of the other positions being offered.
[14] On 2 September 2010, while still absent on sick leave, the Applicant was advised by email that she was to attend a meeting with the Respondent on Monday 6 September 2010 regarding the restructure.
[15] At the meeting on 6 September 2010, the Respondent told the Applicant that the office was being restructured, that her position was no longer available, and that she would have to apply for another position.
[16] The Applicant was provided with no other information regarding the restructure.
[17] On Thursday 23 September 2010 the Applicant’s employment was terminated.
[18] The Applicant learned of the termination on 28 September 2010 when she received a letter of termination (the letter was undated but the envelope was postmarked 24 September 2010).
[19] The Applicant was a more than satisfactory employee who had knowledge, skills and experience that would have equipped her to undertake any of the jobs that were included in the new office structure.
[20] The Applicant was not provided with information that would have alerted her to:
(a) the job content of any of the ‘new’ jobs; or
(b) the deadline for making an application for any of the ‘new’ jobs.
[21] For all practical purposes, the Applicant was not provided with an opportunity to apply for any of the ‘new’ jobs.
Genuine Redundancy
[22] The Applicant submits that the dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act for the following reasons:
(a) there were no changes to the Respondent’s operational requirements which resulted in the Applicant’s job no longer being required to be performed by anyone;
(b) the Respondent did not comply with its obligations to consult with the Applicant regarding the redundancy, as required under the Commonwealth Members of Parliament Staff Enterprise Agreement 2010-2012 (“the Enterprise Agreement”); and
(c) it was reasonable in all of the circumstances for the Applicant to be redeployed within the Respondent’s office.
No operational changes
[23] Prior to the restructure the Respondent’s office structure from electorate officers was:
(a) Senior Advisor/Electoral Office Manager (the Applicant’s position);
(b) Media Advisor;
(c) Electorate Officer; and
(d) Diary Secretary.
[24] The office structure after the restructure was:
(a) Entitlements Manager;
(b) Media and Public Relations Advisor;
(c) Policy Advisor; and
(d) Diary Secretary.
[25] The Applicant submits that the office restructure was a sham and there were no relevant changes to the Respondent’s operational requirements.
[26] A majority of the Applicant’s duties were redistributed between the Entitlements Manager and Media and Public Relations Advisor.
[27] The Applicant submits that it is highly unusual for a Federal Member of Parliament such as the Respondent to not have an Office Manager.
Consultation provisions not complied with
[28] Clause 9 of the Enterprise Agreement contains a requirement on employers to consult with employees with regards to major change. A major change is likely to have a significant effect on employees if it results in the termination of the employment of employees.
[29] Clause 9 relevantly provides:
9.2 The employer must notify the relevant employees of the decision to introduce the major change.
9.5 As soon as practicable after making the decision, the employer must:
(a) discuss with the relevant employees:
(i) the introduction of the change; and
(ii) the effect the change is likely to have on the employees; and
(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and
(b) for the purposes of the discussion — provide, in writing to the relevant employees:
(i) all relevant information about the change including the nature of the change proposed; and
(ii) information about the expected effects of the change on the employees; and
(iii) any other matters likely to affect the employees. [Emphasis added]
[30] The Applicant submits that the Respondent made no attempt to consider or discuss with the Applicant any measures that could have been taken to avert or mitigate the adverse effect of the restructure on the Applicant.
[31] The Applicant further submits that the Respondent did not, in writing or otherwise, provide to the Applicant all the relevant information about the restructure. Relevant information which could have been provided to the Applicant in writing includes the timeframes for the restructure, opportunities for redeployment, providing details of positions available or application forms and closing dates for applications.
Redeployment not explored
[32] The Applicant submits that the Respondent did not explore redeployment opportunities.
[33] The Applicant is an experienced office manager with several years of experience in management, media and public relations. Her employment record with the Respondent is unblemished. The Applicant has a Bachelor’s Degree in Management and Communications, majoring in public relations, and has previously worked as Media Advisor to the Hon Warren Entsch, MP.
[34] The Applicant submits that she possesses suitable qualifications and experience for at least two of the new positions, being the Media and Public Relations Advisor or the Entitlements Manager.
[35] It would have been reasonable in the circumstances to re-deploy the Applicant into either of these two positions. One or both of these positions should have been offered to the Applicant.
[36] The Respondent contends that the reason the Applicant was not redeployed was that she did not apply for any of the new positions.
[37] However the Act does not impose an obligation on the Applicant to apply for redeployment. The Respondent has an obligation to redeploy the Applicant if it was reasonable in the circumstances to do so.
[38] In any event, the Applicant was not given a reasonable opportunity to apply for the new positions as she was on sick leave and was not provided with the necessary information.
Conclusion
[39] The Applicant submits that the dismissal was not a case of genuine redundancy as:
(a) there were no changes to the Respondent’s operational requirements which resulted in the Applicant’s job no longer being required to be performed by anyone;
(b) the Respondent did not comply with its consultation obligations under the Enterprise Agreement; and/or
(c) it would have been reasonable in all the circumstances for the Applicant to be redeployed into the role of either Entitlements Manager or Media and Public Relations Advisor.
Harsh, Unjust or Unreasonable
[40] If FWA decides that the termination was not a genuine redundancy, it has jurisdiction to find that the dismissal was harsh, unjust and unreasonable.
[41] In determining whether the dismissal was harsh unjust or unreasonable, FWA must have regard for the matters in section 387(a)-(g), and has discretion to consider any other matter that it considers relevant to the determination.
Section 387 matters
[42] The Respondent claimed that the termination was a genuine redundancy and therefore did not provide any reasons, valid or otherwise, for the dismissal relating to the Applicant’s capacity or conduct.
[43] The Applicant was notified of her termination by letter. No valid reason was provided.
[44] The Applicant was not provided an opportunity to respond to any reason related to capacity or performance at the time of her termination.
[45] The Applicant had not been warned about any unsatisfactory performance issues before dismissal.
[46] The Respondent has access to sufficient resources and HR specialists to allow it to follow processes that are fair.
[47] The Applicant had no history of unsatisfactory performance or conduct. The Respondent failed to have adequate regard to the Applicant’s emotional and physical strain she was under at the relevant time because of her illness, surgery and subsequent recovery.
[48] The Applicant submits that, based on the above, the dismissal was harsh, unjust and unreasonable.
The Respondent’s Submissions
[49] The Respondent submits that the Applicant’s dismissal was a case of genuine redundancy and the Applicant was not unfairly dismissed.
[50] Prior to 24 September 2010, Dr Jensen had four Electorate Officers. Their respective roles and classification levels were:
(a) Electorate Officer C: the Applicant (Senior Adviser and Office Manager);
(b) Electorate Officer B: Chris Swallow (Media Advisor);
(c) Electorate Officer A: Helen Dyer and Anna Ogilvie (shared General Role);
(d) Electorate Officer A: Delveen Bove (Diary Assistant); and
(e) Ronnae Abbey (part time Office Assistant).
[51] During July and August 2010, Dr Jensen came to the view that his electorate office was not functioning efficiently.
[52] In about early to mid-August 2010, Dr Jensen decided that he wanted a flatter structure in his electorate office so that most of his staff were at the same level and reported directly to him.
[53] Dr Jensen decided to restructure his electorate office to the following structure:
(a) 3 x Electorate Officer B; and
(b) 1 x Electorate Officer A.
[54] Dr Jensen retained a recruitment firm to manage the process involved with recruiting Electorate Officers to fill the new positions. All of the existing Electorate Officers, including the Applicant, were given the opportunity to apply for the new positions.
[55] The recruitment process involved placing job advertisements on the Seek.com website, short-listing candidates and then interviewing the short-listed candidates.
[56] Following the recruitment process, Dr Jensen hired new Electorate Officers. Dr Jensen also terminated the employment of the Applicant and Ms Bove and Ms Dyer.
[57] Following this restructure the current office staff and their respective roles and classification levels are as follows:
(a) Electorate Officer B: Richard Newton (Media and Public Relations Advisor);
(b) Electorate Officer B: Chris Swallow (Policy Advisor);
(c) Electorate Officer B: Anna Ogilvie (Entitlements Manager);
(d) Electorate Officer A: Mel Rae (PA and Diary Secretary); and
(e) Ronnae Abbey (part time Office Assistant). 1
[58] There is no longer anyone in a Level C Electorate Officer position in the electorate office, the position occupied by the Applicant.
[59] The structure of the electorate office has changed from “AABC” to “ABBB”. Objectively, this is a flatter structure.
[60] The restructure did not only affect the Applicant’s position. All the Electorate Officer positions were affected.
[61] The tasks previously done by the Applicant were distributed between other positions (mainly between the Entitlements Manager (Ms Ogilvie) and the Policy Advisor (Mr Swallow)). Further, travel duties and Electorate Staff Allowance are now shared amongst all of the Electorate Officers whereas previously the Applicant undertook all travel duties and received the highest amount of Electorate Staff Allowance. 2
[62] The job previously performed by the Applicant is no longer performed by any one person and no longer exists. 3
Consultation
[63] The Commonwealth Members of Parliaments Staff Enterprise Agreement 2010 —2012 (the Enterprise Agreement) applied to the Applicant’s employment.
[64] Pursuant to clause 9.5 of the Agreement, as soon as practicable after making the decision to introduce a “major change”, the employer must:
(a) discuss with the relevant employees the introduction of the change, the effect it is likely to have on them and measures the employer will take to avert or mitigate any adverse effects of the change; and
(b) for the purposes of the discussion, provide the relevant employees (in writing) all relevant information about the change (including the nature of the change), information about the expected effects of the change on the employees and any other matters likely to affect the employees.
[65] The Respondent concedes that the office restructure was a major change within the scope of clauses 9.9 and 9.5.
[66] The Respondent submits that Dr Jensen consulted with the Applicant as required by the Agreement. In particular:
(a) Advised the Applicant that he intended to restructure the office to flatten the structure.
(b) Provided the Applicant with copies of the new position descriptions. 4
(c) Met with the Applicant to attempt to discuss the office restructure, the effect of the office restructure and measures he would take to avert or mitigate any adverse effects of the office restructure.
(d) The Applicant’s response during the meeting and generally after Dr Jensen announced that he was restructuring the office indicated an unwillingness to engage in any discussion about the restructure.
(e) In contrast, where the employee was willing to engage in discussion, there was more extensive consultation.
(f) Dr Jensen engaged in consultation with the Applicant that was reasonable and practicable in these circumstances.
Redeployment
[67] The evidence of Mr Catchpole was that Senators and Members of Parliament with one electorate office are entitled to be provided with four full-time Electorate Officer positions by the Commonwealth. The wages for the Electorate Officers are paid by Ministerial and Parliamentary Services, Department of Finance and Deregulation.
[68] Senators and Members employ their own Electorate Officers, on behalf of the Commonwealth, in accordance with section 20 of the Members of Parliament (Staff) Act 1984 (Cth).
[69] Each Senator or Member is responsible for selecting their own Electorate Officers. The Senator or Member, once they have selected their Electorate Officers, must enter into a written employment agreement with each Electorate Officer.
[70] The duties of Electorate Officers are allocated by the Senator or Member.
[71] When necessary, the Senator or Member can terminate the employment of their Electorate Officers.
[72] In this case, the Respondent submits that it was not reasonable in all the circumstances to redeploy the Applicant because:
(a) Members of Parliament are in a unique situation because they hire and fire their own staff on behalf of the Commonwealth.
(b) The employment relationship between a Member and his or her staff is a very personal one and it was not possible, or reasonable, to redeploy the Applicant to the electorate office of another Senator or Member.
(c) The remuneration offered for the new positions was substantially lower than the Applicant had previously been paid as an Electorate Officer Level C.
(d) The Applicant did not express any positive interest in applying for any of the new positions and did not access the new positions on the Seek website.
(e) Further, the Applicant did not apply for the Electorate Officer B and A positions that were available.
(f) The Applicant did not explore any of the redeployment opportunities of her own accord. (The Applicant gives no evidence that she made any efforts in this regard.)
[73] Consequently Fair Work Australia should find that the Applicant’s dismissal was a case of genuine redundancy.
Unfairness ?
[74] The Respondent also submits that, even if FWA finds that the Applicant’s redundancy was not genuine within the meaning of s.389, the Applicant’s dismissal was not harsh, unjust or unreasonable.
[75] None of the factors set out in sections 387(a) to (g) are relevant in this case.
[76] Other relevant factors for determining whether the Applicant’s dismissal was harsh, unjust or unreasonable are as follows:
(a) The Applicant was notified about the proposed office restructure in writing.
(b) Dr Jensen complied with the obligations to consult with the Applicant about the office restructure.
(c) Dr Jensen no longer required anyone to fill the position the Applicant previously filled.
(d) The Applicant did not inform Dr Jensen of the extent of her health problems. The Applicant does not give any evidence that she told Dr Jensen of her health problems. Further, the Applicant does not give evidence that Dr Jensen requested, or required, her to continue work even with her health problems. In fact, the Applicant indicates that she decided, against the advice of her doctors, to postpone her surgery.
[77] On balance, weighing all the above factors, the Respondent submits that the Applicant’s dismissal was not harsh, unjust or unreasonable.
The issues to be determined
[78] Section 385 explains what an unfair dismissal is as follows.
385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
[79] Next s. 396 identifies initial matters that must be decided before considering the merits of an application. Whether the dismissal was a case of genuine redundancy is one such matter.
[80] What is meant by “.. a case of genuine redundancy.” is set out in s. 389 below.
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.
[81] In this matter the principal issues for determination are whether the Applicant’s dismissal was a case of genuine redundancy within the meaning of s.389 and if it was not whether the dismissal was harsh, unjust or unreasonable and so unfair.
Consideration
[82] The backdrop to some of the events relevant to this matter was the 2010 federal election.
[83] On Saturday 17 July 2010 the Prime Minister announced the intention to hold an election. The closing date for candidates to nominate for election was Thursday, 29 July 2010. Polling day was Saturday, 21 August 2010.
[84] The evidence is the Respondent terminated the Applicant’s employment on 23 September 2010 and she received notification of this in writing on 28 September 2010.
[85] It is common ground that the period of the election campaign placed all in the electoral office under significant strain. Towards the end of this period Dr Jensen was considering the possibility of restructuring his office staffing. One reason for this was that he had identified some problems that had arisen during the election campaign that he attributed in part to the particular staffing structure in place.
[86] The Applicant herself had also identified some problems in the office and in an email on 24 August 2010 asked Dr Jensen to meet with her to sort out what had been going on. This followed earlier verbal requests from the Applicant for such a meeting.
[87] The Applicant says the problems where some staff not doing their duties and that two staff, Ms Ogilvie and Mr Swallow, were “.. going around me directly to Dr Jensen.” 5 These issues had been upsetting the Applicant and she believed also unsettling other staff in the office.
[88] The Applicant admits to having accessed Mr Swallow’s email account on his computer in his absence without his permission on the day of the election. 6 She was then upset by the content of some emails she read about her that had been swapped between Ms Ogilvie and Mr Swallow. The Applicant’s representative characterises those emails as “backbiting” but what is clear is that there was some friction between the Applicant and Ms Ogilvie and Mr Swallow.
[89] The electorate officer positions within the office were classified under the Enterprise Agreement either as A, B or C with A being the most junior role and C being the most senior role with corresponding differentials in salary. 7 In addition to these positions both before and after the restructure there was also a part-time office assistant employed.
[90] The evidence is that since 2004 there have been a number of different staffing arrangements in place in the office.
[91] Prior to the office restructure the four electorate officer positions were one A, two B’s and one C grade position.
[92] After the restructure the four positions were made up of one A and three B grade positions.
[93] The previous structure it seems was in part established to have a senior position, the C grade role, to whom the other lower grade positions reported and that C grade position would then report to Dr Jensen.
[94] The process adopted by Dr Jensen to move from the existing staff structure to the new structure was to simultaneously declare all the exiting positions to be redundant, to then publicly advertise the new positions and to invite current staff to apply for the new positions and to consider their applications on their merits no differently from those of external applicants. I will refer to this process as “spill and fill”.
Was the Applicant’s job no longer required?
[95] Turning to the question of whether or not the Applicant’s job was no longer required to be performed by anyone. When the Applicant was employed in 2008 she was employed as a Senior Adviser/Electoral Office Manager. The position description identified that the role was in part to manage the electoral office. Under that heading there were a number of specific requirements involving management of the other staff including ensuring that they had clearly defined duties and achieved the required outcomes.
[96] Before the restructure was undertaken the electorate officer positions were Senior Adviser/ Electoral Office Manager, Media Adviser, a Shared General Role, and Diary Assistant. The shared general role position was occupied by two part-time electorate officers.
[97] The four electorate officer positions under the new structure are Media and Public Relations, Policy Adviser, Entitlements Manager and PA/Diary Secretary.
[98] It is clear that the Senior Adviser/Electoral Office Manager position the Applicant had occupied has not been retained in the new staff structure. That position was a C grade position whereas the highest position under the new structure is a B grade. Under the new structure there will no longer be an “ Office Manager” role and none of the new roles involve being an intermediary between other electorate officers and Dr Jensen. Those managerial duties performed by the applicant are no longer required to be performed by anyone.
[99] I accept that there is evidence that some of the other duties identified in the Applicant’s role continue to be performed however these are being done by a number of other staff in other positions in the new structure.
[100] The job previously held by the Applicant, being that particular collection of functions duties and responsibilities entrusted to the Senior Adviser/Office Manager, no longer exists. I find that the Respondent no longer requires the Applicant’s job to be performed by anyone. I note that this conclusion is not really challenged by the Applicant’s representatives. 8
Because of changes in the operational requirements?
[101] Dr Jensen’s evidence was that he preferred the new structure because it was flatter and allowed more of the electorate officers to report directly to him.
[102] The Applicant challenges whether this alternative staffing structure was necessary and efficient and submits that in fact the restructure was a sham and there was no change in the operational requirements of the enterprise.
[103] Ultimately decisions about staffing arrangements are for the employer and inevitably different managers or employers will have different views given the same circumstances as to what they believe is the most appropriate staffing structure. It is not for the Tribunal to assess the validity of the hoped-for improvements that the employer says they believed would flow from a new structure. The assessment for the Tribunal in these circumstances is limited to deciding whether or not the employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise.
[104] The Tribunal in considering this will however consider whether or not the supposed changes in the operational requirements were a sham. This is what the Applicant submits is the case here.
[105] Having reviewed the evidence about the events leading up to the staffing restructure I do accept there had been some concerns and complaints Dr Jensen had about the Applicant’s performance. However it seems unlikely, given the other evidence, that the real reason for the staff restructure was simply to remove the Applicant.
[106] That other evidence includes the fact that a new staff structure was put in place that affected all of the positions in the office. The higher C grade position previously occupied by the Applicant has been removed from the structure altogether and replaced with a B grade position. Some of the positions in the new structure involve a mix of duties that is quite different from the duties required of the positions under the previous staffing structure. Further all of the previous staff, not just the Applicant, were affected. All of the electorate officers, not just the Applicant, were advised of the restructure and as was the case for the Applicant, all of the electorate officers were spilled from their position and invited to apply for any of the new positions. Some of the electorate officers applied for new positions but others chose not to.
[107] The evidence is that the final outcome of the restructure was that the Applicant and Ms Bove and Ms Dyer were terminated and two new employees, Mr Newton and Ms Mel Rae were employed and that Mr Swallow was re- employed as was Ms Ogilive (but full time rather than part time) and both of them took on new roles. The restructure has affected all staff and all roles and was wide ranging. Whilst the Applicant could argue that her role was impacted more than others because her C grade role was removed, the breadth of the changes strongly support a conclusion that this restructure was not a sham at all.
[108] The Applicant also argues that the Respondent deliberately chose to undertake the restructure whilst she was on sick leave to disadvantage her and this is further evidence that the change was a sham.
[109] The evidence is that the Applicant had been unwell on and off for an extended period of time and had put off going to hospital for necessary surgery until after the election. She says the Respondent deliberately chose this time so that she would be disadvantaged if she was to apply for any of the positions.
[110] The difficulty with this argument is that there is rarely a good time for all of the employees who may be affected by a significant organisational change for that change to be undertaken. Employees will unsurprisingly, and not unreasonably, complain when such changes occur at a time when they are absent on sick leave, or on annual leave or on parental leave or have significant personal difficulties affecting their lives.
[111] Even in a relatively small office as was the case here finding a time to undertake a restructure that would be neutral for all of the five employees plus for Dr Jensen and which suited the operational needs of the office was problematic.
[112] The evidence is that some of the shortcomings Dr Jensen believed the previous structure had were highlighted during the high-pressure period in the lead up to the federal election. The restructure followed in the weeks immediately after the federal election. Whilst I accept that the timing of the office restructure posed real difficulties for the Applicant because of her illness the timing of the restructure was otherwise unremarkable and I do not accept that the timing of the restructure suggests in anyway it was a sham.
[113] Having considered all of the evidence I am not satisfied that what occurred here was a sham at all. Rather I am satisfied that the staff restructure was undertaken in this instance because of changes in the operational requirements of the employer’s enterprise.
[114] I am satisfied then that the Applicant’s job is no longer required to be performed by anyone. Further I find that this was because of changes in the operational requirements of the Respondent’s enterprise.
Consultation
[115] The Commonwealth Members of Parliament Staff Enterprise Agreement 2010-2012 applied to the Applicant’s employment. The Enterprise Agreement includes the following clause regarding consultation.
9 Consultation on Major Changes
9.1 This clause applies if:
(a) the employer has made a definite decision to introduce a
major change to production, program, organisation, structure,
or technology in relation to its enterprise; and
(b) the change is likely to have a significant effect on employees
of the enterprise.
9.2 The employer must notify the relevant employees of the decision to introduce the major change.
9.3 The relevant employees may appoint a representative for the purposes of the procedures in this clause.
9.4 If:
(a) a relevant employee appoints, or relevant employees appoint, a representative for the purpose of consultation; and
(b) the employee or employees advise the employer of the identity of the representative;
the employer must recognise the representative.
9.5 As soon as practicable after making the decision, the employer must:
(a) discuss with the relevant employees:
(i) the introduction of the change; and
(ii) the effect the change is likely to have on the employees;
and
(iii) measures the employer is taking to avert or mitigate the
adverse effect of the change on the employees; and
(b) for the purposes of the discussion – provide, in writing, to the relevant employees:
(i) all relevant information about the change including the nature of the change proposed; and
(ii) information about the expected effects of the change on the employees; and
(iii) any other matters likely to affect the employees.
9.6 However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.
9.7 The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.
9.8 If a term in the Agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in clauses 9.2, 9.3 and 9.5 are taken not to apply.
9.9 In this clause, a major change is likely to have a significant effect on employees if it results in:
(a) the termination of the employment of employees; or
(b) major change to the composition, operation or size of the
employer’s workforce or to the skills required of employees; or
(c) the elimination or diminution of job opportunities (including
opportunities for promotion or tenure); or
(d) the alteration of hours of work; or
(e) the need to retrain employees; or
(f) the need to relocate employees to another workplace; or
(g) the restructuring of jobs.
9.10 In this clause, relevant employees means the employees who may be affected by the major change.
[116] The Respondent agrees the staff restructure was a major change and so this clause applied.
[117] The evidence is that the Respondent did notify the Applicant of the decision to change the staffing structure. This notification was provided in writing and this included relevant information for the Applicant as required by this clause of the Enterprise Agreement.
[118] Dr Jensen did later meet to discuss the restructure with the Applicant on 6 September 2010. The evidence is that this was a relatively brief discussion largely because of the hostility the Applicant showed at that meeting to the proposed changes. Such a discussion with an employee concerning their likely redundancy by its very nature will sometimes be strained or tense.
[119] I accept that other employees had a wide ranging and extended discussion with Dr Jensen about the changes in their meeting with him. The discussion with the Applicant was truncated by her attitude and actions rather than any refusal of Dr Jensen to consult. 9
[120] During the brief discussion it was explained to the applicant that she could apply for any of the new positions. This was one measure taken that could have averted or mitigated the adverse effect of the restructure on the Applicant.
[121] Considering what occurred I find that the Respondent did comply with its obligation under Clause 9 of the Enterprise Agreement to consult about the redundancy.
Redeployment
[122] The provision within the Act that deals with the issue of redeployment is section 389 (2).
[123] A Full Bench of Fair Work Australia considered this provision in detail in the matter of Ulan Coal Mines Limited v A. Honeysett, A. Oldfield, C. Michaelides, G. Atkinson, R. Butler and D. Dixon (C2010/4468) and R. Murray, M. Butler and C. Butler v Ulan Coal Mines Limited (C2010/4457) [2010] FWAFB 7578, as follows
“[26] First, s.389(2) must be seen in its full context. It only applies when there has been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer’s capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.
[27] Secondly, it is implicit in the terms of s.389(2)(b) that it might be reasonable for an employee dismissed by one employer to be redeployed within the establishment of another employer which is an entity associated with the first employer. It follows that an employer cannot succeed in a submission that redeployment would not have been reasonable merely because it would have involved redeployment to an associated entity. Whether such redeployment would have been reasonable will depend on the circumstances. The degree of managerial integration between the different entities is likely to be a relevant consideration.
[28] Thirdly, the question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.
[29] It is appropriate to mention some submissions advanced by counsel for Ulan concerning the interpretation of the s.389(2). It was submitted that an employer will not usually have the power or right to transfer an employee to employment by another employer, except in the unusual case where it is provided for in the terms of employment. Accordingly, the use of the term “redeployment” is directed at a broader concept, one which would include employment with the employer or an associated entity at some time after termination for redundancy. It was said that it is appropriate to regard an employee as having been redeployed if the employee is subsequently employed in a different or alternative position by their former employer or by an entity associated with their former employer. While this submission has a number of other implications, it is sufficient to say that it is not consistent with the clear words of the section and would lead to a great deal of uncertainty in its application. As we have already indicated, if an employee is terminated for redundancy but subsequently employed within an entity related to the employer, that might be an indication that the employee could have been reemployed at the time of the termination. But this will not always be the case. Subsequent employment within an associated entity may occur because circumstances have materially altered since the termination. For example, vacancies may have arisen.
[30] In relation to its appeal, and leaving aside the issues of construction we have already dealt with, Ulan submitted that the Commissioner’s decision was wrong because he did not identify the particular positions in a particular enterprise to which each of the six applicants could have been redeployed. He also erred in not taking into account the failure of the employees to pursue job opportunities with the related entities after Ulan had publicised those vacancies. The Commissioner was influenced in this regard by the fact that the employees would have been competing for positions rather than being given some kind of preference. Further, it was submitted that the evidence indicated that the evidence given by four of the applicants did not indicate that at the relevant time they were interested in and ready and willing to take employment away from Mudgee.
[31] The Commissioner found that entities associated with Ulan had vacancies for jobs which were potentially suitable for the dismissed employees and there was no evidence that redeployment from Ulan to the mines operated by these associated enterprises would have any impact on operational efficiency. While the Commissioner decided that some of the employees dismissed by Ulan were encouraged to apply for vacancies at mines operated by associated entities, he also found that neither Xstrata nor its associated entities had a policy of employing persons who might be redundant in other enterprises in the group. In Xstrata’s case, this is despite the fact that it had overall managerial control in relation to the mining operations of the associated entities. These findings were open to him. The Commissioner also found no evidence that any of the relevant employees would have been unwilling to be redeployed to one of the other mines. It must be said that all of the evidence was not one way on this issue and, as Ulan’s submissions indicate, some of the employees in particular did not display a great deal of energy in following up on vacancies which Ulan brought to their attention. Nevertheless we think it was open to the Commissioner to find that if offered redeployment they would have accepted it.
[32] We have concluded that the Commissioner’s decision was open on the evidence and other material before him and did not involve any error in interpretation of the section.
[33] In relation to the appeal by Messrs Murray, M. Butler and C. Butler, we note that in each case the Commissioner found that the employees were not interested in taking up a job far from where they lived. Accordingly he found that it would not have been reasonable for them to have been redeployed to any of the associated entities. These findings also were open on the evidence and did not involve any error in interpretation of the section.
[34] It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.
[35] Where an employer is part of a group of associated entities which are all subject to overall managerial control by one member of the group, similar considerations are relevant. This seems to us to be a necessary implication arising from the terms of s.389(2)(b). While each case will depend on what would have been reasonable in the circumstances, subjecting a redundant employee to a competitive process for an advertised vacancy in an associated entity may lead to the conclusion that the employee was not genuinely redundant.”
[124] In the present case the Respondent concedes the Applicant was not offered re-deployment. 10 However the Respondent argues that this was because it was not reasonable in the circumstances to re-deploy the Applicant.
[125] Dr Jensen sought advice from the Department regarding the process to be undertaken to achieve the office restructure. 11
[126] The advice given by Department was based on Dr Jensen's explanation that he wanted to “spill” all of the positions. 12 That initial advice dealt with the need to advise staff in writing, meet with the staff and then advertise the new positions.
[127] After the recruitment process was concluded Dr Jensen sought further advice regarding those staff who had not applied for the new positions. The Department then provided advice that explained the process for terminating the employment of these staff. 13 The Department’s advice was largely based on consideration of the terms of the Enterprise Agreement.
[128] The Department's advice to Dr Jensen did not at any stage mention that redeployment of staff should be considered.
[129] The particular process adopted by the Respondent to put in place the new staff structure was to first spill all existing employees, including the Applicant, from their positions. The new positions were then advertised and the existing employees were invited to apply and so compete with external applicants. The possible redeployment of existing employees to any of the new positions or any position elsewhere was not incorporated into this process.
[130] The process adopted, of spill and fill, did not positively provide for the Respondent to consider redeployment of a person whose job was redundant.
[131] As the Full Bench above considered at [34] where an employer decides to fill a vacancy, not by redeploying an employee into a suitable job, but rather by advertising the vacancy and requiring the employee to compete with other applicants it might be found that a subsequent dismissal of that employee is not a case of genuine redundancy. This would be because it would have been reasonable to have redeployed that employee into the vacancy.
[132] Section 389 says that that re-deployment is not limited to the employer’s enterprise but extends to the consideration of redeployment in the enterprise of an associated entity of the employer.
[133] At its broadest in the circumstances of this case section 389 (2) invloves consideration by the Respondent of the possibility of redeployment to any other Member of Parliament’s electoral office, or given the employer is the Commonwealth, potentially to positions elsewhere in the public sector.
[134] With respect to the possibility of redeployment into the office of another Member of Parliament I accept the evidence of Mr Catchpole that individual Members of Parliament, as was the case with Dr Jensen, are entitled to and do employ and terminate their own electoral office staff. I also accept the relationship between the electoral staff and a Member goes beyond the merely carrying out of duties and extends to electoral officers at times being required to stand in for the Member at public functions or other events and so they may, at times, act as a representative of the Member. Overall these circumstances are such that it would not have been reasonable for the Applicant to have been redeployed into the electoral office of another Member of Parliament if there was such a vacancy.
[135] With respect to redeployment to other areas of the public service, neither party seriously considered this in detail and there is little evidence before Fair Work Australia regarding this option. My conclusion is that the employment of electoral officers by Members of Parliament is a somewhat unique arrangement and one that is different from employment with the Commonwealth in the public service generally which is subject to separate legislation. 14 Again in my view the circumstances here are such that it was not reasonable for the Applicant to have been redeployed either with the Department or elsewhere in the Commonwealth public service.
[136] The final question for consideration in terms of redeployment is whether it was reasonable in all the circumstances for the Applicant to be redeployed within Dr Jensen’s electoral office.
[137] The evidence of both the Applicant and Dr Jensen is that considering the nature of the available positions in the new structure the Applicant did have the skills, qualifications and experience to satisfactorily carry out the duties of a least two and possibly three of the positions in the new structure.
[138] These positions were being offered in the same electoral office the Applicant had been working in. The positions however were at a B grade level which was lower than the C grade position the Applicant had been employed in.
[139] In this case the Respondent argues that one of the relevant circumstances to be considered is that the Applicant did not apply for any of the new positions. The Respondent further submits that the Tribunal should find that in fact the Applicant never intended to apply for any of the new positions. The Respondent says that contrary to her evidence that she did intend to apply, the evidence of Mr Catchpole indicates she never had any intention of applying for any of the new positions.
[140] Having reviewed the evidence of the Applicant and that of Mr Catchpole I refer the evidence of Mr Catchpole as to the conversation he had on the phone with the Applicant on 16 September 2010. I find that the Applicant during this phone conversation said words to the effect, as recorded by Mr Catchpole at that time in his notation, that the Applicant will not be applying for one of the less senior positions available under Dr Jensen’s restructure. 15
[141] Whilst accepting that at this time the Applicant was not intending to apply for any of the new positions it should be remembered that this was in the context of the Applicant having been advised at the outset that the process being adopted was spill and fill. The Applicant was being required to compete with external applicants for the new positions. There was never any suggestion that she would be offered one of the positions as a redeployment if she was interested in it.
[142] It is not correct to assume that the Applicant’s unwillingness to apply for the new positions meant she would not have positively considered accepting redeployment to one of these positions if this had been offered. The two circumstances are qualitatively different. An offer of redeployment for example would have largely removed any belief the Applicant held that the restructure was a sham designed to remove her from the office.
[143] It needs also to be borne in mind that around the time that applications could have been made by the Applicant she had spent some period in hospital and was still recovering.
[144] It is not in dispute that the Applicant had appropriate skills, qualifications and experience for some of the new positions. The fact that the new positions were at a lower grade than her job that had been made redundant may have discouraged her from accepting redeployment but this was not for the Respondent to prejudge. The Respondent cannot say that the Applicant would have rejected an offer of redeployment. My conclusion then is that in all the circumstances of this case it was reasonable for the Applicant to have been redeployed within the employer’s enterprise.
[145] That being the case whilst the dismissal of the Applicant was because her job was redundant this was not a case of genuine redundancy within the meaning of section 389 of the Act.
Section 387 criteria from considering unfairness
[146] In this case whilst my conclusion has been that this was not a case of a genuine redundancy because of the particular meaning of these words in section 389 of the Act this was solely because the Applicant was not redeployed within the Respondent’s enterprise.
[147] This conclusion does not alter the fact that the Applicant’s job was no longer required to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise. Ms Lindsay’s job was redundant.
[148] The fact that the Applicant’s job was redundant however is not a reason for the dismissal which was ‘... related to the person’s capacity or conduct...’ as referred to in section 387 (a).
[149] In this case then section 387 (a) to (g) have no practical application.
Other relevant matters s. 387(h)
[150] Given the finding that it was reasonable for the Respondent to offer the Applicant the option of being redeployed into one of the new positions in the electoral office the fact that this was not done means the dismissal of the Applicant was unreasonable. Consequently I find that the Applicant has been unfairly dismissed.
Remedy
[151] The Applicant seeks reinstatement or compensation as an alternative.
[152] Considering the option of reinstatement, the evidence is that Dr Jensen views the relationship with the Applicant as having broken down during the restructuring process. In addition he has lost trust and confidence in the Applicant because of her actions prior to her dismissal in accessing the email account of another staff member without authority. Those actions of the Applicant have also apparently damaged the relationship between her and Mr Swallow and also Ms Ogilvie. In these circumstances then I agree that reinstatement of the Applicant is therefore not appropriate.
[153] In all the circumstances I do consider however that an award of compensation to the Applicant is appropriate in lieu of reinstatement.
Compensation
Remuneration that would have been received
[154] The Applicant had been employed for over two years. If the Applicant had remained in employment after the restructure it would have been at a B grade level, in a position of lesser responsibility and at a lower salary than her previous role. The Applicant was not generally accepting of the restructuring. There would inevitably have been some friction between herself and some other staff members resulting from her unauthorised accessing of their emails and her reading of those. The Applicant also submits that her health remains problematic. All of these factors suggest her future in the Respondent’s employment would have been limited.
[155] My assessment then is that had the Applicant not being dismissed then her employment would have continued for a further period of no more than 6 months at the B grade level.
[156] Consequently the amount of remuneration that the Applicant would have received or would have been likely to receive if she had not been dismissed including salary and assuming an equal apportionment of the electoral allowance ( EA) plus superannuation would have been:
Salary $ 33,434
E A $ 2,690
Super $ 5,563
Total $ 41,687 gross.
Remuneration earned
[157] At the time of her dismissal the Applicant was paid amounts of pay in lieu of notice and severance pay that should be deducted totalling:
$ 20,195 gross.
Viability
[158] There is no evidence that would suggest that an order of compensation would affect the viability of the Respondent.
Mitigation and contingencies
[159] The Applicant asserts her various health problems have constrained her ability to mitigate her loss. These health problems also mean the Applicant may not have been fit for her duties during some of the period since her dismissal.
[160] Notwithstanding these difficulties the submissions on behalf of the Applicant are that she has sought employment in the offices of other Liberal Party Members of Parliament but has been unsuccessful to date.
[161] The Applicant has not sought to broaden her job search beyond this self evidently very limited scope notwithstanding her lengthy and significant experience in broader fields.
[162] The Applicant has earned no income between the time of her dismissal in September 2010 and the time of the hearing in April 2011.
[163] It is appropriate then given these limited attempts to mitigate her loss and allowing for some period of ill health that there be a deduction of the equivalent of two months remuneration being:
$ 13,896 gross.
[164] Considering these factors, the appropriate amount of compensation to be payable is:
$7,596 gross.
[165] An order to that effect will issue in conjunction with this decision.
COMMISSIONER
Appearances:
Mr S Heathcote, Special Counsel, Sparke Helmore Lawyers on behalf of the Applicant.
Ms L Black, Counsel instructed by Blake Dawson Lawyers on behalf of the Respondent.
Hearing details:
2011.
Perth:
April 5, 6
1 See Witness Statement of Dennis Jensen at [17] and Witness Statement of Sharlene Lindsay at [43]
2 See Witness Statement of Dennis Jensen at [66]
3 See Ulan CoalMines Limited v Henry Jon Howarth and others [2010] FWAFB 3488 at [15] and [17] — [19]
4 See Witness Statement of Dennis Jensen at [24] and Witness Statement of Sharlene Lindsay at [19] and [20]
5 PN 94
6 PN 160
7 See Attachment C, Classifications Structure: Electorate Employees of the Enterprise Agreement
8 PN 2187
9 PN 1198 - 1202
10 PN 2087
11 Witness statement of Dr Jensen para 21 see email from Mr Catchpole to Mr Swallow dated 27 August 2010
12 PN 1965
13 See email from Mr Catchpole to Dr Jensen dated 22 September 2010
14 PN 2002-2011
15 Supplementary witness statement of Catchpole Annexure B
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