Tate Bourke v Save the Children Australia

[2015] FWC 283

[2015] FWC 283

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tate Bourke
v
Save the Children Australia
(U2014/9304)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 14 JANUARY 2015

Application for relief from unfair dismissal.

[1] Mr Tate Bourke was employed by Save the Children Australia (Save the Children) from 19 February 2014 until his employment was terminated on 7 September 2014.

[2] Mr Bourke alleged that the termination of his employment was unfair. Save the Children alleged that the termination of Mr Bourke’s employment was a genuine redundancy and therefore Mr Bourke’s claim must be dismissed.

[3] I gave permission to Save the Children to be represented by Mr Carter, a paid agent. He submitted that giving permission for Save the Children to be represented would permit the matter to be dealt with more efficiently given the complexity of the matter. Whilst I did not consider the matter to be particularly complex as the law in this area is settled, given Mr Bourke did not object to Save the Children being represented, I was satisfied that the matter would be dealt with more efficiently if Save the Children were represented.

[4] As Mr Bourke wanted the matter to proceed by way of a hearing this is what occurred.

Jurisdiction of Fair Work Commission

[5] There is no dispute that Mr Bourke had served the minimum period of employment and was covered by a modern award. There is no dispute that his employment was terminated by his employer and that Save the Children was not, at the time of the termination of Mr Bourke’s employment, a small business.

[6] Save the Children provided services to the Department of Immigration and Border Protection (Immigration) on Nauru. The program in which Mr Bourke worked provided youth work services to refugees who had arrived as unaccompanied minors and who were being detained on Nauru.

[7] It was not disputed by Mr Bourke that, as a result of contractual negotiations between Save the Children and Immigration, Save the Children needed to reduce the number of Unaccompanied Minor (UAM) Residential Workers employed on Nauru by 19. 1 The new contract was signed on 29 August 2014.2

[8] While Mr Bourke had issues 3 with the decision of Save the Children to reduce the number of UAM Residential Workers it had engaged to work on Nauru that is not a matter that has to be resolved by the Commission.

[9] It is also not disputed that the need to reduce staffing numbers working in this program and the reasons why it had to occur had been subject of discussion between Save the Children and its staff before the final decision was made. On 25 August 2014, Mr Bourke was at a meeting conducted by Ms Trisha Vollmer, the Human Resources Business Partner for Save the Children. 4 There was no dispute that employees at that meeting were aware that staffing numbers were to be reduced and that Save the Children wished to retain existing staff by making other vacant positions available to employees. It was made clear that redundant UAM Residential Workers would have to apply for positions through the normal processes and that for positions on Nauru redundant employees would be considered before the positions were advertised externally.5

[10] It was acknowledged that some staff may be made redundant. 6 There was a dispute between Ms Vollmer and Mr Bourke about whether employees were told that the selection process would involve a call for volunteers but it is not necessary to resolve that difference. It is clear that Save the Children did not call for volunteers.

[11] On 29 or 30 August 2014, Mr Bourke was called to a meeting with Ms Vollmer and his manager Mr Michael Stevens. At that meeting Mr Bourke was told that his position was redundant. He was given a letter which advised of the need to reduce numbers of UAM and why. The letter advised that the managers had undertaken a review of all team members and as a result his position was redundant. He was advised of his entitlements. 7

[12] Ms Vollmer said that there was discussion with Mr Bourke at that meeting about alternative positions and that Mr Bourke advised that he was not interested in any other positions. Mr Bourke denied saying this.

[13] In any event on the same day Mr Bourke applied for a case worker position and was unsuccessful. He did not apply for any of the other vacant positions either on Nauru or with Save the Children more generally.

Issues to be determined

1. Did Save the Children no longer want Mr Bourke’s job to be performed by anyone because of changes in operational requirements?

[14] There is no dispute that having been told that Immigration would no longer fund 19 positions, Save the Children had to reduce the number of UAM Residential Workers. The answer to the above question is yes.

2. Did Save the Children meet its obligations to consult under the Social, Community Home Care and Disability Services Award 2010?

[15] It is clear that Mr Bourke was on notice of the pending reduction of UAM Residential Workers before a definite decision was taken to reduce numbers. Ms McMillan, the Capacity Manager of Human Resources gave evidence that in anticipation of this impending reduction in numbers staff were encouraged to apply for other positions. It is clear that on 25 August 2014 employees were told of the impending redundancies and the reasons for those redundancies. On 30 August 2014, after the definitive decision was made to reduce the numbers of UAM Residential Workers Mr Bourke was given a document which set out reasons for the decision and what steps Save the Children had taken.

[16] In Zito v Goulburn Valley Imaging Group, 8I discussed the obligations to consult that are imposed on employers by modern awards. I adopt the same approach here.

[17] In this case I find that there was discussion with Mr Bourke at the meeting on 25 August 2014 as to why the decision was taken. There was also a discussion on 30 August 2014 about why Mr Bourke was chosen for redundancy. While Mr Bourke challenged the validity of those reasons, the obligation to consult is not an obligation to reach an agreement. On his own evidence, Mr Bourke had an opportunity put to Save the Children that his position should not have been made redundant. 9 Further I accept that Save the Children did tell Mr Bourke that he could apply for other positions with Save the Children.

[18] I therefore find that Mr Bourke was given an opportunity to discuss, with Save the Children, mitigation of the decision to make his position redundant. I also find that he was given information in writing about the decision. I find that Save the Children complied with its obligations under the Award to consult.

Was it reasonable in the circumstances to redeploy Mr Bourke to another position with Save the Children?

[19] Save the Children gave evidence of vacancies both on Nauru and in Australia. Evidence was given that employees were aware of these vacancies. Mr Bourke did not give evidence that he was unaware of the vacancies. In fact Mr Bourke applied for one of the vacancies and was unsuccessful.

[20] It is clear that Save the Children did not try to match its redundant employees with its vacant positions. It is clear that those employees were required to apply for the positions and were to be assessed on merit. Save the Children submitted that in circumstances where they had a large number of redundant employees such an approach was reasonable and it resulted in five employees being redeployed.

[21] In Ulan Coal 10 the Full Bench said this about redeployment:

“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.”

[22] In this case, Save the Children did not consider it appropriate to place any of its employees into its vacancies. In relation to the jobs on Nauru, employees were required to compete with other redundant employees and other staff in overstaffed programs. In relation to jobs in Australia, it expected its employees to compete with other employees and external applicants. I accept that this approach was reasonable in relation to positions on Nauru where the competition for jobs was between redundant employees however I do not accept that it was reasonable to expect redundant employees to compete for jobs in Australia with non redundant employees or external applicants. The question is whether it would be reasonable to redeploy the person based on the requirements of the positions and the skills and attributes of the redundant employee. The fact that an employee may need some additional training for the position is supportive of the conclusion that redeployment may be reasonable even if the person is not the “best” person for the job if they were competing in the open market.

[23] Ms McMillan gave evidence that Mr Bourke said he was not interested in any other positions. 11 Ms McMillan was not present at the discussion about redeployment. Ms Vollmer who was present and said in her witness statement that Mr Bourke said in the meeting that he was not interested in any alternative positions12 but in her evidence in chief she said that at the meeting “he indicated that he did want to apply for those positions.”13 Mr Bourke denied saying that he was not interested in alternative positions. I prefer Mr Bourke’s evidence in relation to this. Mr Bourke’s evidence that he was keen to keep working on Nauru and the fact that he did apply for another position the same day is inconsistent with him stating that he was not interested in other positions.

[24] I do not accept the submission that Mr Bourke was not interested in redeployment because he did not respond to an email sent 14 about alternative work after his employment was terminated and he had left Nauru. The Fair Work Act 2009 requires consideration of redeployment at the time of dismissal not some time after the dismissal.

[25] In his submissions about redeployment, Mr Bourke concentrated on the case worker position which he applied for. Mr Bourke had previously applied for such a position and was unsuccessful. Save the Children did not consider that Mr Bourke had the skills necessary for this position 15 and he was not appointed to that position. Mr Brkic who interviewed Mr Bourke for the UAM Residential Worker did not consider Mr Bourke or any of the other redundant employees were qualified for any of the positions on Nauru.16 While I accept that Mr Bourke’s qualifications and experience were more extensive than put by Save the Children I unable to conclude that Mr Bourke should have been redeployed to a case worker position ahead of other redundant employees on Nauru. There was no evidence that any case worker positions were unfilled after the selection process was complete or that any new employees were engaged to fill the case worker positions.

[26] I find, therefore, that this was not a reasonable position to which Mr Bourke could have been redeployed.

[27] Ms McMillan said that Mr Bourke would have been qualified for the position of program support officer  17 but those positions were at that time filled by other employees who had been redeployed into those positions. I find in those circumstances that it would not have been reasonable to redeploy Mr Bourke to these positions.

[28] Mr Bourke asked Ms McMillan about two other positions namely the Complaints Co-ordinator and the Appointments Co-ordinator and while acknowledging that these positions had been vacant she did not know when they became vacant. Mr Bourke did not put to Ms McMillan or the Commission any submission that he was qualified for these positions. Nor did Mr Bourke give evidence that he would have accepted redeployment to these positions. I am unable, on the evidence, to conclude that it would have been reasonable to redeploy Mr Bourke to these positions.

[29] Mr Bourke relied on an advertisement for casual UAM Case Workers placed by Save the Children on 5 November 2014. I have not had regard to this position as there was no evidence that this vacancy existed at the date of Mr Bourke’s redundancy.

[30] In relation to jobs in Australia, Ms McMillan did not give evidence that Save the Children gave any consideration to redeploying Mr Bourke to any of these positions. Mr Bourke had to apply for the positions and he needed to compete for these positions in the open market. Mr Bourke did not apply for any of these positions.

[31] Ms McMillan said that Mr Bourke was not qualified for those positions but she was unaware of Mr Bourke’s qualifications. 18 While I accept that some of the positions were specialist positions which would not have been suitable, it is difficult to conclude on the face of the material that Mr Bourke could not have filled a position of an Administrative Assistant or a Co-ordinator role.

[32] Mr Bourke gave evidence that he could have performed the role of Youth Program Co-ordinator. It was put to him that this job involved management and he replied that it involved coordinating and he had a couple of years experience as a program development officer. 19 Also he said he could have done the job of a Volunteer Co-ordinator as he had lots of experience “coordinating movements of volunteers including his work as a program development officer and volunteering, or being quite a senior volunteer in Edmund Rice Camps Victoria.”20 He gave evidence that he had “definitely coordinated training programs for volunteers and movements of volunteers.”21 When it was put to Mr Bourke that he had no management experience, he advised that at the time of his redundancy he was the acting team leader and he was able to take on the next level of management.22 He accepted that he had not been employed as a volunteer coordinator before.

[33] No direct evidence was given as to why Mr Bourke was not suited to these positions and his evidence was not challenged that he was able to perform these positions. However there was no evidence, that Mr Bourke indicated at the time, that he was interested in any of these positions. Ms McMillan gave evidence that all positions are advertised in the same place for employees and there was no evidence that Mr Bourke did not have access to that information. This is not a situation where knowledge of the vacancies was only known to the employer.

[34] Had Mr Bourke expressed interest in any of the Australian based positions at the time and had he then been told that he had to apply and compete with non redundant employees and external applicants my findings in relation to whether it would have been reasonable in all the circumstances to redeploy Mr Bourke may have been different.

[35] Here in the absence of any evidence, including at the hearing that Mr Bourke would have accepted any of these positions, I am unable to conclude that it would have been reasonable in all the circumstances to redeploy Mr Bourke to any of these positions.

Conclusion

I have found that Mr Bourke’s position was redundant and that Save the Children complied with its obligation to consult Mr Bourke about the redundancy. I have found on balance that there were no alternative positions to which Mr Bourke could have reasonably been redeployed to and as a consequence the jurisdictional objection is upheld and the application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Mr T. Bourke appearing on behalf of himself.

Mr I. Carter appearing on behalf of Save the Children Australia

Hearing details:

2014;

Melbourne:

10 November.

 1   Exhibit R1 at [8]-[9].

 2   Ibid.

 3 Submissions in reply to the Save the Children Submission at [1].

 4   Exhibit A1 at [4]

 5   Exhibit A1.

 6   Ibid.

 7   Exhibit A1

 8   [2014] FWC 6606.

 9   Exhibit A1 at [12]-[21].

 10   Ulan Coal Mines Limited v Honeysett and ors[2010] FWAFB 7578 at [34]

 11   Transcript at PN 77.

 12 Exhibit R4 at [6].

 13   Transcript at PN 135.

 14   Transcript at PN 78.

 15 Exhibit R5 at [7].

 16   Exhibit A2 at [2] and [9].

 17   Exhibit R2.

 18   Transcript at PN 107.

 19   Ibid at PN 246-247.

 20   Ibid at PN 248.

 21   Ibid.

 22   Ibid at PN 249.

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