Steven Lakhani v Westpac Banking Corporation

[2019] FWC 3505

[2019] FWC 3505

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Steven Lakhani
v
Westpac Banking Corporation
(U2018/12145)

COMMISSIONER CAMBRIDGE SYDNEY, 14 JUNE 2019

Application for relief from unfair dismissal - jurisdictional objection - ss. 385 and 396 of the Fair Work Act 2009 - whether dismissal was a case of genuine redundancy - s. 389 meaning of genuine redundancy - elements which constitute genuine redundancy - genuine redundancy established - jurisdictional objection upheld.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Steven Lakhani (the applicant). The respondent employer is the Westpac Banking Corporation (Westpac or the employer).

[2] The application was lodged at Sydney on 23 November 2018. The application indicated that the date that the applicant’s dismissal took effect was 2 November 2018. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation. The employer raised a jurisdictional objection to the application on the basis that the dismissal was alleged to be a case of genuine redundancy. The matter has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted in Sydney on 26 March and 17 May 2019. The Hearing dealt with evidence and submissions which encompassed both the jurisdictional objection regarding the question of genuine redundancy, and also the substantive issues of the alleged unfair dismissal.

[4] At a Pre-Hearing Conference held on 1 February 2019, the Commission granted permission pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. At the Hearing, the applicant was represented by Mr R Candelori, solicitor from McGirr Lawyers Pty Ltd. Mr Candelori called the applicant and one other witness to provide evidence in support of the unfair dismissal claim, and against the jurisdictional objection advanced by Westpac. Mr J Adamopolous, barrister, instructed by Ms J Light from Allens lawyers, appeared for Westpac at the Hearing. Mr Adamopolous called a total of three witnesses who provided evidence on behalf of the employer.

[5] The application was the subject of a jurisdictional challenge made by the employer upon the assertion that the applicant’s dismissal was a case of genuine redundancy. Consequently, subsection 396 (d) of the Act requires that the Commission must decide whether the dismissal was a case of genuine redundancy before any consideration is made of the merits of the application.

Background

[6] The applicant commenced employment with Westpac in June 2014. The applicant was initially engaged in the position of a Branch Manager responsible for the employer’s retail Branch operation located in the Sydney suburb of Fairfield. In January 2017, the applicant was promoted to a position of a Lending Area Manager (LAM) for the Central West and Southwest Sydney area (CWSW area). The applicant’s employment was covered by the Westpac Group Enterprise Agreement 2016 (the EBA). 

[7] The employer is one of Australia’s “big four” Banks, and it provides a range of banking and associated financial services to more than 14 million customers. The employer is a large private sector business with more than 35,000 employees. Relevantly, in 2017 when the applicant was promoted to the position of a LAM, Westpac had structured its retail banking operations for metropolitan Sydney by designation of eight geographical areas. Each of these eight geographical areas had various appointed Managers, and the applicant was one of the Lending Area Managers, referred to by the acronym of LAM(s), and he was appointed as the LAM for the CWSW area. Each of the LAMs was responsible for and supervised the work of a team of Home Finance Managers referred to by the acronym of HFM(s).

[8] Prior to February 2018, the work of the applicant was without recorded complaint, and whilst he was Fairfield Branch Manager that Branch received the Westpac Branch of the year award in 2016. Further, in 2017, the applicant received a “Star” award in recognition of his work performance.

[9] In February 2018, the applicant’s immediate superior, Mr Villiers, who holds the position of the employer’s State Manager Home Lending NSW Metro, raised concern with the applicant regarding the comparative performance of the home lending area for which he was responsible, the CWSW area, when assessed against the performance of the seven other home lending areas established for Westpac’s Sydney metropolitan operations. On 16 February 2018, Mr Villiers had an informal meeting with the applicant to discuss his concerns regarding the comparative performance of the CWSW area. During this meeting, the applicant indicated that he had been experiencing certain health issues associated with a brain tumour and that he was going to commence a period of leave.

[10] On 27 March 2018, the applicant commenced a period of annual leave and subsequently this leave became, firstly, paid sick leave, and subsequently unpaid sick leave. During the time that the applicant was on leave, the employer conducted an investigation into a complaint made by a colleague of the applicant and which involved allegations of potential misconduct against the applicant (the misconduct investigation). As the misconduct investigation progressed, the applicant engaged the services of his solicitor, Mr Candelori, to act on his behalf, and he advised the employer to direct all relevant communications through his solicitor.

[11] In July 2018, the NSW Metro Westpac senior leadership team began to consider certain efficiency and productivity benefits that may be obtained from some restructuring of, inter alia, the geographical structure of the NSW Metro retail business. As a result of these considerations, on or around 11 September 2018, the NSW Metro senior leadership team made a decision to restructure the number of areas that comprise the NSW Metro retail business. Specifically a decision was taken to reduce the number of geographical retail business areas from eight to seven. This decision impacted upon, inter alia, the LAM positions such that the number of LAM positions would be reduced from eight to seven.

[12] On 17 September 2018, Westpac provided the applicant’s solicitor with advice of the decision to restructure the NSW Metro retail business. The applicant’s solicitor was provided with a documentary “briefing pack” which included details of the proposed changes that relevantly involved, inter alia, the reduction of the number of LAM positions in NSW Metro lending from eight to seven. The “briefing pack” provided details of the proposed restructured configuration, and importantly it indicated that feedback on the proposed structure and roles should be provided by 19 September 2018. Further, the briefing pack advised impacted individuals that they should include their “top 3 preferences” for positions in the restructured arrangements.

[13] Coincidentally, earlier that same day, 17 September, the applicant’s solicitor had advised Westpac that the applicant had provided a medical certificate clearing him to return to work on 24 September 2018.

[14] On 20 September 2018, the applicant’s solicitor responded on behalf of the applicant to the restructure “briefing pack” that had been provided by Westpac. Specifically, the applicant’s solicitor stated; “I am instructed that Steven wishes to formally express his interest in the Central West Sydney role with RGM Jaya Nagpal.” 1

[15] On 21 September 2018, Mr Villiers telephoned the applicant and advised him that he had been unsuccessful in securing an ongoing role as one of the seven LAM positions retained in the restructured arrangements. Mr Villiers was the person responsible for making the decision to select the applicant as the redundant LAM position, and he indicated that the applicant’s “preference through the EOI process was a key input in my decision making.” 2

[16] The applicant was provided with a letter dated 21 September 2018, which confirmed the verbal advice provided by Mr Villiers, and it advised that the applicant would commence a four week redeployment process starting on 24 September 2018. The letter of 21 September also advised the applicant that; “If you are unable to secure another role during the redeployment period, your employment will end by way of retrenchment and you will receive information regarding retrenchment payment.” 3

[17] The applicant was aggrieved by the advice that he had been selected as the redundant LAM, and he instructed his solicitor to send correspondence to Brian Hartzer, the Westpac CEO, requesting his intervention in the process, and raising concern about the genuineness of the redundancy and the (at that time) un-finalised misconduct investigation. On 4 October 2018, the applicant sent an email to the Career Transition Consultant that had been assigned to his redeployment process, Mr Spratt, indicating that he was awaiting legal advice and a response from the CEO, and therefore he was not prepared to engage in the redeployment process at that time.

[18] On 12 October 2018, the applicant sent an email to Mr Spratt which advised that he was now prepared to participate in the redeployment process, and that he had started to apply for other jobs in the Westpac group. Subsequently, Mr Spratt became actively engaged as the applicant’s assigned Career Transition Consultant, and he also coordinated the assistance of an external recruitment agency, Audrey Page & Associates.

[19] On 16 October 2018, the applicant was advised of the outcome of the misconduct investigation which apparently resulted in the applicant receiving a “formal warning only.” 4

[20] The applicant had made various applications for other positions within the Westpac group of companies, however, on 24 October 2018, he advised that all of the applications that he had made for positions that were of a lower salary had to be withdrawn as a result of the impact on his financial situation. Consequently, from that time onwards, the applicant, with the assistance of Mr Spratt and others, perused redeployment opportunities in roles that attracted salary levels similar to that of the LAM position.

[21] On 25 October 2018, Mr Spratt sent an email to the applicant which referred to a redeployment opportunity involving a Business Development Manager (BDM) position in the NSW Metro team which provided a salary equivalent to a LAM role. Initially, on 26 October 2018 the applicant expressed definite interest in the BDM position. However, on 30 October 2018, the applicant sent an email to Mr Spratt which relevantly stated; “Unfortunately, It [sic] will not be suitable for me at this stage even though pay grade is similar as it will push me back and side track my career. I am not ready to take on something which will not support my career progression.” 5

[22] On 1 November 2018, the applicant sent an email to Mr Spratt in which he requested that the redeployment period which was due to complete on the following day, 2 November, be further extended. Mr Spratt advised the applicant that Westpac was not prepared to extend the redeployment period further, and therefore the applicant’s employment would cease on 2 November 2018. The applicant was provided with an employment separation certificate which confirmed the termination of his employment on the basis of redundancy, and it included calculation of a redundancy payment that amounted to a period covering 23.25 weeks remuneration.

[23] Since the termination of his employment the applicant has unsuccessfully sought alternative employment.

The Case for the Applicant

[24] Mr Candelori who appeared for the applicant, made verbal submissions during the Hearing in elaboration of a written outline of submissions that had been filed on 15 March 2019. Mr Candelori submitted that the dismissal of the applicant did not involve a case of genuine redundancy. Further, Mr Candelori submitted that as the applicant’s redundancy wasn’t genuine, the resultant dismissal was harsh, unjust or unreasonable.

[25] The submissions made on behalf of the applicant asserted that the purported redundancy of the applicant was a transparent attempt to overcome the mishandled misconduct investigation that had protracted for months without resolution. It was submitted that the redundancy was a process deliberately designed to ensure that the applicant was removed from Westpac. Consequently, it was asserted that the redeployment process was not genuine particularly as it involved the respondent divulging confidential information, manipulating correspondence, and otherwise ensuring that the applicant never stood a chance of being redeployed.

[26] Mr Candelori made submissions which referred to the matters identified in s. 389 of the Act which dealt with the meaning of genuine redundancy. In this regard, it was submitted that the redundancy of the applicant was not genuine because the respondent was unable to make out a genuine change in operational requirements, and further it had breached its obligations in the enterprise agreement to consult about the redundancy.

[27] In further submissions made on behalf of the applicant, stringent criticism was made of the long-running investigation into the alleged misconduct of the applicant. It was submitted that the respondent had failed to afford the applicant procedural fairness during the misconduct investigation process. Further, it was submitted that Westpac had withheld evidence and declined any face-to-face meeting for the applicant to have an opportunity to properly answer any allegations made against him. It was also asserted that the respondent had caused confidential information arising from the misconduct investigation to be divulged or leaked to other unrelated employees and third parties, which severely damaged the applicant’s reputation, impugned his integrity, and generally prejudiced his position.

[28] Mr Candelori made further submissions which stressed that the applicant primarily relied upon the absence of redeployment as a matter which established that the dismissal of the applicant was not a case of genuine redundancy. Mr Candelori said that at the time that the applicant was notified of the change in the business structure he was on sick leave and he was the subject of an investigation that had been ongoing for a number of months without resolution. According to the submissions made by Mr Candelori, this meant that the applicant could not effectively be consulted because he was not fit and able to consult. Further, criticism was also made of the three day consultation process which it was said represented an egregious breach of clause 44 of the EBA.

[29] In respect to the redeployment issue, Mr Candelori referred to a Full Bench analysis of the terms of subsection 389 (2) of the Act found in thecase of Ulan Coal Mines v Honeysett and Ors. 6 Mr Candelori submitted that it would have been reasonable for the respondent to have redeployed the applicant as it is a large organisation with several associated entities and it would have been more than capable of redeploying the applicant into a role with equivalent responsibilities and conditions. Further, Mr Candelori submitted that the respondent had not properly addressed the prospect of any retraining of the applicant as part of the redeployment process. In addition, Mr Candelori submitted that the redeployment period should have been extended in order to enable the applicant to be redeployed into some suitable position within the respondent and its associated entities.

[30] The submissions made by Mr Candelori also criticised the respondent’s approach to redeployment as involving an internal campaign to hamper and obstruct the applicant’s good faith efforts to secure an alternative role. Mr Candelori referred to what he described as examples of the respondent’s intention to engineer a process to remove the applicant. Mr Candelori referred to an email communication that had been altered by Mr Spratt, and various other email communications which referred to the applicant in negative ways, and suggested that he might complain or that he was a highly visible candidate for redeployment. Further, Mr Candelori submitted that the applicant was forced to compete with external applicants in the redeployment process and this was contrary to the proper approach to redeployment.

[31] Mr Candelori also submitted that the applicant was conscientious and prolific in his efforts to consider all other redeployment opportunities, and that he did not engage in the redeployment process only for a period pending a review from the CEO, Mr Hartzer. Against the applicant’s conscientious efforts, Mr Candelori submitted that the respondent had not engaged in the redeployment process genuinely and in good faith, but instead had divulged confidential information, and conducted other activities which were highly damaging to the applicant’s ability to successfully seek an alternative role.

[32] Consequently,in summary, Mr Candelori submitted that the Commission should not be satisfied that the dismissal of the applicant was a case of genuine redundancy. Further, it was submitted that the applicant was scapegoated by the respondent who was intent on removing him from the organisation under the facade of a redundancy, and it was clear from the outset that Westpac was only “going through the motions.” Mr Candelori submitted that the dismissal of the applicant was not a genuine redundancy, and it was a dismissal that was harsh, unjust or unreasonable.

[33] Mr Candelori submitted that the applicant should be provided with a remedy of reinstatement for his unfair dismissal. Mr Candelori submitted that the dismissal of the applicant represented an egregious error on the respondent’s part, and that reinstatement was the appropriate means by which to restore the applicant’s reputation and dignity.

The Case for the Employer

[34] Mr Adamopolous,who appeared for Westpac, made oral submissions in support of written material which had been filed on behalf of the employer. In summary, Mr Adamopolous submitted that the dismissal of the applicant was a case of genuine redundancy and therefore, by way of the operation of subsection 385 (d) of the Act, the jurisdictional objection raised by Westpac should be upheld. Further, Mr Adamopolous submitted that in the alternative, the dismissal of the applicant was not harsh, unjust or unreasonable.

[35] Mr Adamopolous made submissions that referred to s. 389 of the Act which provided a definition for the meaning of genuine redundancy. Mr Adamopolous submitted that when the three matters identified in s. 389 of the Act which provide for a meaning of genuine redundancy were examined, the dismissal of the applicant satisfied all three matters and was therefore a genuine redundancy.

[36] Mr Adamopolous firstly submitted that it was clearly the case that Westpac had made operational changes that resulted in the role of the applicant being no longer required. Mr Adamopolous rejected the suggestion that the restructuring of the NSW Metro retail operations was somehow an orchestrated means by which to remove the applicant from his employment with Westpac. Mr Adamopolous said that the restructure was genuine, and it involved the reduction in the number of LAM roles from eight to seven.

[37] In further submissions, Mr Adamopolous rejected the applicant’s challenge to his selection as the particular LAM who was declared redundant as a result of the restructure. Mr Adamopolous said that the selection process that an employer implements in order to make employees redundant was not relevant to whether there was a genuine redundancy. Further, Mr Adamopolous submitted that the individuals that were involved in the restructure and the selection process, including Mr Villiers, were not aware of the details of the misconduct investigation and the selection of the applicant was as a result of an objective process. In addition, Mr Adamopolous noted that the applicant had indicated a preference for only one of the remaining LAM positions, whilst, in fact, his colleagues had indicated a preference for any of the seven remaining positions.

[38] Mr Adamopolous made further submissions which asserted that the second matter for consideration arising from s. 389 of the Act regarding modern award or enterprise agreement consultation obligations had been satisfied. Mr Adamopolous stated that the redundancy process was conducted in accordance with the requirements of the EBA. In particular, Mr Adamopolous mentioned that the provision of the “briefing pack” to the applicant included all relevant information and the anticipated reduction in full-time equivalent positions, as was required by clause 44.2 of the EBA. It was further submitted by Mr Adamopolous that it was important to note that despite being legally represented at the time, the applicant provided no feedback regarding the restructure other than expressing an interest in only one of the new LAM roles. Mr Adamopolous said that it should be noted that the applicant, who was legally represented, took no issue with the time period for the consultation at the time that the “briefing pack” was provided.

[39] The submissions made by Mr Adamopolous also addressed the third matter relevant to the meaning of genuine redundancy, and which involved the question of redeployment. In this regard, Mr Adamopolous submitted that Westpac had made reasonable attempts to redeploy the applicant in satisfaction of subsection 389 (2) of the Act. The submissions made by Mr Adamopolous defended the period of time that the redeployment process was operative, and he indicated that the EBA established a maximum of three months but that the evidence established that most redeployment periods did not extend beyond four weeks. Mr Adamopolous noted that the applicant initially did not participate in the redeployment process pending his communication with the CEO. Further, Westpac had appointed a dedicated case manager to deal with the applicant’s redeployment, being Mr Spratt.

[40] Mr Adamopolous also made submissions which indicated that the applicant had withdrawn from several advertised positions on the basis of the pay was considerably less than what he received as a LAM. Further, according to the submissions made by Mr Adamopolous, the redeployment process was properly pursued by the employer and involved the application of objective criteria whereby the applicant was not suitable for a number of the identified roles. Mr Adamopolous rejected any suggestion that the redeployment process was anything other than a genuine attempt to find suitable alternative employment for the applicant, or that it was a poisoned process affected by the information surrounding the misconduct investigation.

[41] Consequently, Mr Adamopolous submitted that the three particular matters identified in s. 389 of the Act had been satisfied, and therefore the applicant’s dismissal was a case of genuine redundancy. Mr Adamopolous urged the Commission to find that the dismissal of the applicant was a case of genuine redundancy, and therefore subsection 385 (d) of the Act operated as a jurisdictional bar to the applicant’s claim for unfair dismissal remedy.

[42] Mr Adamopolous also made submissions which addressed the prospect that the employer’s jurisdictional objection may be rejected by the Commission and that the dismissal of the applicant would have been found to have been unfair. These alternative or secondary submissions focused upon the implications of the remedy sought by the applicant whereby he had abandoned any claim for compensation but sought only reinstatement as a remedy. In this regard, Mr Adamopolous submitted that the redundancy payment that had been made to the applicant would have to be returned to the employer, and further it was submitted that the Commission should not exercise its discretion to make any order for lost pay.

[43] In summary, Mr Adamopolous submitted that the applicant’s dismissal was a case of genuine redundancy because each of the relevant matters identified in s. 389 of the Act had been satisfied. Specifically, Mr Adamopolous submitted that; (a), as a result of a business restructure Westpac no longer required the applicant’s job to be performed by anyone, and (b), Westpac had complied with the relevant consultation requirements of the EBA, and, (c) it would not have been reasonable in all the circumstances for the applicant to have been redeployed. Consequently, Mr Adamopolous submitted that the jurisdictional objection raised by Westpac should be upheld, and therefore the application for relief from unfair dismissal should be dismissed.

Consideration

[44] This Decision has necessarily involved an initial determination of a jurisdictional objection which was advanced by the employer.

[45] Relevantly s. 396 of the Act requires that the Commission must decide a number of specified matters before considering the merits of any application made under s. 394. In this instance the jurisdictional objection arises from the provisions of subsection 396 (d) of the Act. The particular provisions of s. 396 of the Act are:

“396 Initial matters to be considered before merits

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) ...

...

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

The Genuine Redundancy Question

[46] It would seem that a person cannot be unfairly dismissed if the dismissal was a case of genuine redundancy. This would appear to be the clear corollary of subsection 385 (d) of the Act which relevantly states:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

…

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

[47] Section 389 of the Act provides for a meaning of genuine redundancy:

“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.”

[48] An examination of the provisions of s. 389 of the Act identifies three specific elements which, if satisfied in combination, determine whether or not a dismissal was a case of genuine redundancy. Subsection 389 (1) contains two affirmative elements, both of which must be established, in order to allow for a finding that a dismissal was a case of genuine redundancy, and subsection 389 (2) contains one negatory element which, if established, renders the dismissal not to be a case of genuine redundancy.

[49] For convenience I have abbreviated the three elements identified within s. 389. The first affirmative element which is extracted from subsection 389 (1) (a) has been described as “job lost due to operational requirements”, the second affirmative element extracted from subsection 389 (1) (b) has been called “consultation obligations”, and the third negatory element found in subsection 389 (2) is abbreviated as “reasonable redeployment”.

[50] Consequently, the consideration of the question of whether the dismissal of the applicant was a case of genuine redundancy has involved examination of the three separate elements contained in s. 389 of the Act, such that, each of these three separate elements must, in combination, be satisfied in order to make any finding of genuine redundancy. This means that the two affirmative elements contained in subsection (1) must be established, and the negatory element found in subsection (2) must not be present in order to make a finding that a particular dismissal was a case of genuine redundancy.

Job Lost Due To Operational Requirements

[51] In this instance, the evidence has established that the position that the applicant occupied as the LAM for the CWSW area was no longer required. Westpac identified that certain efficiency and productivity improvements could be achieved from the restructuring of its NSW Metro retail operations. The restructuring essentially involved a reduction in the number of geographical areas from eight to seven, and this logically resulted in a reduction in the number of positions previously assigned to the eight areas such that, inter alia, Westpac no longer required eight LAM’s but only seven.

[52] There was no evidence that established support for the proposition that the restructure was implemented as some elaborate and devious means to remove the applicant from his employment with Westpac. The restructure of the NSW Metro retail operations involved a significant organisational change that impacted well beyond the applicant. The restructure presented as a significant operational change that was implemented as part of the sensible, ongoing pursuit of efficiency improvements that would ordinarily and routinely occur in any business that was regularly reviewing its operations. The motivation for the restructure of the NSW Metro retail operations was simply the proper pursuit of sound business practice.

[53] In this instance, the evidence has clearly established that as a result of the restructure the work that had been performed by one of the eight individual LAMs was no longer required. Subsequently, the applicant was selected as the particular occupant of one of the LAM positions who was no longer required. The basis for the selection of a particular individual is not a matter that impacts upon the Commission’s consideration of whether the circumstances satisfy the meaning of genuine redundancy. However, if the basis for the selection involved some unlawful or otherwise prohibited reason, for instance, if an individual was selected for redundancy because of their ethnicity, then the dismissal may satisfy the meaning of genuine redundancy but may otherwise be unlawful as it breached the general protection provisions provided in the Act.

[54] It was asserted that the applicant was selected as being the redundant LAM because of some improper influence of issues surrounding the misconduct investigation, and that he was further disadvantaged because of his absence on sick leave at the time that the restructure was announced and subsequently implemented. These issues, if they were relevant and operative, do not disclose some prohibited reason for selection. More importantly however, the selection of the applicant was understandably influenced by his action in providing only one preference for ongoing engagement whilst all other LAMs apparently indicated a preparedness to work in any of the remaining seven geographical areas.

[55] Consequently, the restructure of the NSW Metro retail operations has established a bona fide basis upon which Westpac no longer required the job of the applicant as LAM for the CWSW area to be performed by anyone because of changes in the operational requirements of its enterprise. Therefore, the first element of subsection 389 (1) of the Act has been properly satisfied.

Consultation Obligations

[56] The second element contained in s. 389 of the Act requires a positive finding that the employer had complied with any Award or Agreement obligations to consult about the redundancy.

[57] Westpac submitted that it had complied with the consultation obligations of the EBA and it referred in particular to clause 44 of the EBA. The following provisions of clauses 44.2, 44.3 and 44.7 of the EBA would have relevance and potential application to the applicant in this instance:

“44.2

What’s the process?

If a major workplace change will have a significant effect on you, as soon as practicable after making a definite decision to make the change, we’ll discuss with you (or your representative):

–– the introduction of the change;

–– the effect the change is likely to have on you; and

–– measures to avert or mitigate the adverse affect of the change.

We’ll consider matters raised by you or the Union about the change and aim to provide any information and responses to questions as soon as we can.

44.3

How will we consult?

If you are significantly affected by a major workplace change, we’ll give you (or your representative) and the Union, in writing, all relevant information about the changes including the nature of the change; the name and location of impacted business units; the anticipated reduction in FTE positions currently occupied by permanent employees; the expected effects of the changes on you and any other matters likely to affect you.

44.7

Some timing commitments

We have two particular timing commitments about major workplace change:

–– where practicable, we’ll tell the Union about major workplace changes in a timely manner on a confidential basis in order to facilitate consultation with affected employers;

–– if the major workplace change directly impacts 15 or more FTE positions, and involves a reduction in FTE positions currently occupied by permanent employees, the consultation will be for 14 calendar days – which will include a minimum of 2 dedicated business days for considering matters raised in the discussion.”

[58] The circumstances in this instance involved a three day consultation period that commenced when Westpac provided the applicant’s solicitor with the “briefing pack” regarding the proposed restructure of the NSW Metro region retail business operations. The subsequent response to the information contained in the briefing pack, and the invitation that it included to provide feedback, involved the applicant’s solicitor stating that; “I am instructed that Steven wishes to formally express his interest in the Central West Sydney role with RGM Jaya Nagpal.”

[59] Consequently, although being legally represented at the time, the applicant raised no particular challenge to the information contained in the “briefing pack” nor was any criticism raised regarding any inadequacy in the information provided or the approach adopted for method and timing of the consultation process. Subsequently, the applicant has asserted that the consultation process was deficient such that it did not comply with the requirements of the EBA. In particular the applicant contended that because he was absent on sick leave he was unable to engage in the consultation process, and that the three day period of consultation was insufficient. However, the applicant’s solicitor raised no concerns about the consultation process at the time that it was conducted.

[60] An examination of the “briefing pack” reveals that it is a comprehensive and detailed document that provides all relevant information about the changes regarding the proposed restructure of the NSW Metro region retail business operations. Further, the “briefing pack” provides relevant information about, inter alia, the name and nature of the impacted business units, the anticipated reduction in FTE positions currently occupied by permanent employees, and the anticipated impacts for the applicant as one of the LAMs. Upon any reasonable and objective contemplation, the material contained in the “briefing pack” satisfied the requirements stipulated by subclause 44.3 of the EBA.

[61] Further, specific terms contained in the “briefing pack” invited feedback on the proposed change including its structure and roles, and also on the proposed change timeline and process. In addition, on 17 September 2018, when Westpac provided the applicant’s solicitor with the “briefing pack”, it included the following in the covering email; “This proposal has been shared with the NSW Metro LAMs today, so we want to ensure Steven is afforded the same courtesy. Obviously this may alter the way we progress things which you and I will of course discuss.” 7

[62] The contents of the “briefing pack” and the manner in which it was provided to the applicant’s solicitor by Westpac, represented an approach to consultation that satisfied the requirements of subclause 44.2 of the EBA. Further, as the particular change in this instance did not involve direct impacts on 15 or more FTE positions, the three day consultation period did not breach the requirements of subclause 44.7 of the EBA.

[63] Consequently, the evidence has established that the contents of the “briefing pack” and the associated methods for consultation adopted by Westpac in respect of the operational restructure involving the realignment of its NSW Metro region retail business operations as they applied to the applicant, have complied with the consultation obligations arising from the provisions of the EBA. In particular, the circumstances involved compliance with inter alia, subclauses 44.2, 44.3 and 44.7 of the EBA. Consequently, I find that the relevant consultation obligations have been met, and this second element of s. 389 of the Act has been satisfied.

Reasonable Redeployment

[64] The third element of s. 389 of the Act is the negatory provision contained in subsection 389 (2). This element renders what may have been a genuine redundancy, which possessed the elements of subsection 389 (1), to not be a case of genuine redundancy if redeployment was reasonable in all the circumstances. Redeployment is contemplated to extend to any associated entities of the employer.

[65] The first and second affirmative elements extracted from subsection 389 (1) broadly involve an examination of the conduct of the employer, essentially what changes to operational requirements gave rise to the dismissal, and whether there was compliance with any relevant consultation obligations. The third element concerning reasonable redeployment involves examination of both the employer’s actions and those of individual employees. The reasonableness or otherwise of any redeployment is a matter that would need to be assessed on a case by case basis having regard for the approach to redeployment adopted by both the employer and the employee.

[66] Consequently, the consideration of the reasonable redeployment element of s. 389 of the Act has involved an examination of the actions which Westpac undertook in the pursuit of redeployment for the applicant, and it has also involved careful scrutiny of the conduct and approach to redeployment demonstrated by the applicant.

[67] The approach to redeployment of the applicant that was adopted by Westpac was, in broad terms, conducted in accordance with requirements that are contained in clause 45 of the EBA. Once the applicant had been selected as the redundant LAM, he was allocated a Career Transition Consultant, Mr Spratt. Mr Spratt provided extensive evidence of the activities that he had undertaken in conjunction with the applicant, and the external consultants, Audrey Page & Associates, in the pursuit of redeployment of the applicant.

[68] Mr Spratt was an impressive witness who provided believable evidence upon which to conclude that he personally pursued the redeployment prospects for the applicant with significant vigour and earnest desire to secure a suitable alternative position for the applicant. Mr Spratt made some suggestions about altering the role that Mr Villiers had in respect to the applicant’s redeployment process which were regrettably not adopted. The rejection of these suggestions made by Mr Spratt, and some other aspects of detail the employer’s redeployment process could provide justifiable basis for some criticism.

[69] However, the evidence has not established that the redeployment process was improperly influenced or contaminated by issues surrounding the misconduct investigation. Although particular aspects of detail of the approach adopted by Westpac in respect to the applicant’s redeployment could be described as things that “could have been done better” the overall approach of Westpac to redeployment represented a genuine and earnest endeavour to find a suitable redeployment opportunity for the applicant.

[70] The approach that the applicant adopted in respect to the redeployment process was curious and somewhat disconcerting as his enthusiasm for redeployment appeared to vacillate. The applicant initially refused to participate in the redeployment process. Subsequently, to his credit, the applicant then appeared to embrace the redeployment process with eagerness, and he initially indicated interest in a number of redeployment opportunities that involved significantly lower remuneration levels. The applicant then reviewed his financial circumstances, and he decided to withdraw all applications from positions that attracted salaries that were less than the LAM position had provided.

[71] Most significantly, the applicant expressed initial interest in a Business Development Manager position which provided a level of remuneration that was commensurate with the LAM position. However, the applicant subsequently sent an email to Mr Spratt which relevantly stated; “Unfortunately, It [sic] will not be suitable for me at this stage even though pay grade is similar as it will push me back and side track my career. I am not ready to take on something which will not support my career progression.” Shortly after the applicant rejected the Business Development Manager position he unsuccessfully sought to have his redeployment period extended for a second time.

[72] As earlier mentioned, the question of whether it would have been reasonable in all the circumstances for a person to be redeployed involves a case by case examination of the actions and conduct of both the employer and the employee in the pursuit of redeployment. In this instance there was evidence to establish basis for some minor criticism of the approach of the employer. However, a more significant concern arose from evidence of the approach adopted by the applicant during the redeployment process, and which appeared to involve significant fluctuations in his level of enthusiasm for securing a redeployed position.

[73] On balance and weight I must firmly reject the applicant’s assertion that Westpac conducted a redeployment process that was doomed to fail. Its redeployment processes were not perfect, but when balanced against the approach of the applicant, no finding could be established that it would have been reasonable for the applicant to be redeployed either within the employer’s enterprise or the enterprise of an associated entity of Westpac. Unfortunately, the conduct of the applicant involving his fluctuating level of enthusiasm for redeployment represented an approach that understandably led to Westpac denying his request for a second extension to the redeployment period.

[74] Therefore, in these circumstances, it was the conduct of the applicant that established that it would not have been reasonable in all of the circumstances for him to be redeployed either within Westpac or some related entity.

[75] Consequently, the requirements which have been established to arise from subsection 389 (2) of the Act, and as confirmed in the Full Bench Decision in Ulan Coal Mines v Honeysett and Ors 8, have been satisfied.

Conclusion

[76] This Decision has been made in respect to a jurisdictional objection raised by Westpac as the respondent to an application for unfair dismissal remedy. The jurisdictional objection has been advanced on the basis that the dismissal of the applicant was a case of genuine redundancy and therefore, by operation of subsection 385 (d) of the Act, without jurisdictional standing.

[77] The determination of the jurisdictional objection has focused upon the meaning of genuine redundancy as contained in s. 389 of the Act. Section 389 of the Act contains two affirmative elements and one negatory element which must be satisfied so as to establish whether a dismissal was or was not a case of genuine redundancy.

[78] Upon analysis, I have determined that the first two affirmative elements of s. 389 of the Act were satisfied. Westpac no longer required the applicant’s job to be performed by anyone because of changes that it had made in the operational requirements of its enterprise, and further, it complied with obligations in the EBA that applied to the employment of the applicant to consult about his redundancy.

[79] In addition, in respect to the negatory element contained in subsection 389 (2) which deals with reasonable redeployment, I have determined that in all the circumstances it would not have been reasonable for the applicant to be redeployed within Westpac or an associated entity of Westpac. Therefore the negatory element in subsection 389 (2) was not established, and therefore the dismissal of the applicant was a case of genuine redundancy.

[80] In view of the finding made as to genuine redundancy, the jurisdictional objection of the employer is upheld. The application for unfair dismissal remedy is jurisdictionally barred and must therefore be dismissed. An appropriate Order dismissing the application will be issued accordingly.

COMMISSIONER

Appearances:

Mr R Candelori, Solicitor from McGirr Lawyers for the Applicant.

Mr J Adamopoulos, Counsel with Ms J Light from Allens Lawyersfor the Respondent.

Hearing details:

2019.

Sydney:

March, 26.

May, 17.

Printed by authority of the Commonwealth Government Printer

<PR708532>

 1   Exhibit 7 - Annexure KS 5.

 2   Exhibit 8 - Annexure DV 3.

 3   Exhibit 5.

 4   Exhibit 1 - paragraph 24.

 5   Exhibit 11 - Annexure TS 12.

 6   Ulan Coal Mines Limited v A. Honeysett and Ors and R. Murray and Ors v Ulan Coal Mines Limited [2010] FWAFB 7578.

 7   Exhibit 7 - Annexure KS 5.

 8   Ulan Coal Mines Limited v A. Honeysett and Ors and R. Murray and Ors v Ulan Coal Mines Limited [2010] FWAFB 7578.