Tony Bridgman v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Communications Division

[2013] FWC 1060

[2013] FWC 1060

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tony Bridgman
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Communications Division
(U2012/11134)

COMMISSIONER GREGORY MELBOURNE, 28 MARCH 2013

Genuine redundancy.

Introduction

[1] This is an application alleging unfair dismissal brought by the Applicant, Mr Tony Bridgman (the Applicant) under section 394 of the Fair Work Act 2009 (the Act). The Applicant was employed by the Communications Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Respondent) from 30 May 2011 until terminated on the basis of his position being made redundant on 22 June 2012. The Applicant appeared on his own behalf. Mr E. White of counsel was given leave to appear on behalf of the Respondent.

The Issue to be Determined

[2] The Applicant contends his dismissal was not a case of genuine redundancy as the work associated with his role was still required to be performed. The Applicant also contends his dismissal was unfair because the role in which he was employed was specifically created by a motion moved and carried by the Respondent’s management body, the Divisional Executive, and accordingly his subsequent dismissal by the Divisional Secretary was unreasonable.

[3] The Respondent submits the Applicant’s dismissal was a case of genuine redundancy. It argues in the alternative that the Applicant’s conduct during his employment, subsequently discovered, provides independent grounds to justify his dismissal and, further, by reason of that conduct, there is no longer an appropriate level of trust to sustain an employment relationship between the parties.

[4] Section 385 of the Act provides, inter alia, a dismissal is not a case of unfair dismissal if it was a genuine redundancy. The section states:

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

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the small business fair dismissal code; and

(d) the dismissal was not a case of genuine redundancy.” 1

[5] Section 396 of the Act also requires that before any consideration is given to the merits of an unfair dismissal application, various matters are required to be determined. It states:

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

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

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

(c) whether the dismissal was consistent with the small business fair dismissal code;

(d) whether the dismissal was a case of genuine redundancy” 2

[6] Accordingly, if it is determined a dismissal is a case of genuine redundancy, as provided for by the Act, then there is no requirement to determine whether the dismissal was harsh, unjust or unreasonable, and accordingly the application must be dismissed. As such, this issue is required to be determined at the outset.

[7] Given the Applicant’s submissions one further matter also needs to be considered and determined as a threshold issue. At the outset of the proceedings I asked the Applicant the following question:

“Mr Bridgman, do I understand from what you're saying there that your principal submission is that it is essentially a decision that goes beyond power rather than issue to do with whether it was a genuine redundancy? Effectively, your submission is that this is a decision that extends beyond the power of Mr Dwyer to make that decision?” 3

[8] The Applicant replied:

“That is correct, sir.” 4

[9] The Applicant’s written submissions also indicate at page 2:

“No power to terminate employment exists for an officer or an official or a group of officers or officials under the rules of the Union other than Divisional Conference or Executive. No delegation from the Divisional Conference or Executive to do same exists.” 5

[10] The Respondent, however, contends the decision was clearly within the power of the Divisional Secretary. It also submits it should not be an issue in the proceedings because the Applicant has already accepted the decision to terminate his services. However, I am satisfied the question of whether the Divisional Secretary had the requisite power is a relevant issue that needs to be determined.

The Submissions and Evidence

[11] It is clear from the submissions and evidence of the parties that at the time the Applicant was engaged, and certainly throughout the period of his employment, the Communications Division of the Union was a highly politicised body with some deep disagreements and diverse views held between at least two distinct groups within the organisation. Materials tendered by the Applicant referred specifically to some of these issues and led to lengthy cross-examination of witnesses. However, I am satisfied much of the submissions and evidence produced in relation to these issues are of little or no relevance to my determination of this matter. I have accordingly dealt only with the submissions and evidence I consider relevant to the matters I am required to determine.

[12] The Applicant was employed following the adoption of various recommendations by the Respondent’s Divisional Executive. It had previously established a number of working parties generally convened under the banner of the “Change Project”. These included an “Organising Recruitment, and Servicing Reforms Working Party”, a “Skills and Training Reforms Working Party” and an “Internal Reforms Working Party”. These Working Parties subsequently provided recommendations that were adopted by the Divisional Executive. However, no additional funds were allocated to the Divisional Office to enable them to be progressed and the evidence of the Divisional Secretary is, if all were implemented they would have resulted in eight new positions in the Divisional Office. In reality, the position of National Learning and Development Manager, created, and subsequently occupied by the Applicant, was the only one actually created and filled as a result of the change project recommendations.

[13] The Applicant was appointed to the newly created position of National Learning and Development Manager based on the recommendation of a three person sub-committee established to carry out interviews and make a recommendation as to a suitable candidate. The appointment was made by then Divisional Secretary, Mr Thiele. The conditions included a salary of $88,000, 17 per cent superannuation and five weeks annual leave per annum. A draft job description for the position, tendered in the proceedings, indicated in the preamble the role would involve an:

“...experienced adult educator to lead the development and implementation of its (the Respondent’s) new national learning and development program.” 6

[14] The Applicant subsequently produced and delivered a range of training materials and programs following his appointment. These included two day workplace representative training designed, prepared and delivered for the Queensland and South Australian branches of the Union; trainer’s packages for the two day workplace representative training distributed to all branches; further one day training packages, and other training related to work health and safety, the Fair Work Registered Organisations Act, and right of entry under the Work Health And Safety Act.

[15] Shortly after the Applicant was appointed elections for the Divisional Secretary’s position and other elected positions in the Communications Division of the Union took place. Mr Dan Dwyer was subsequently elected as Divisional Secretary in July 2011 and commenced a four-year term of office on 1 August 2011. Prior to the commencement of his term as Divisional Secretary Mr Dwyer had been employed in the Divisional Office as an Industrial/Legal Officer and reported to then Divisional Secretary, Mr Cameron Thiele. On assuming office he carried out a review of the operations of the Divisional Office, including staffing and funding arrangements. He subsequently discovered that in the first six months of the Union’s current financial year the Divisional Office had a year-to-date operating loss of $450,000. He also formed the view that in the absence of remedial action, operating losses would continue to accrue at a similar rate.

[16] The duties of the Divisional Secretary are set out in the Rules of the organisation. They are dealt with, in particular, in sub–rule 40(o) which provides in part:

“40 – Duties of Divisional Secretary

(o) Provided that on and from 1 August 2007, the Divisional Secretary’s duties shall be:

(i) to be responsible for the implementation of Divisional Conference and Executive decisions and the day-to-day Divisional issues;

(ii) to be responsible for the overall administration of the Divisional Office and of the funds and property of the Divisional Executive, including Divisional office staff selection and administration;

(iii) to keep the correct account of all monies received and expended, and to keep a record of all receipts and vouchers. To pay into the Division’s bank account all cash received within forty eight hours after its receipt. To sign all cheques and authorise Electronic Funds Transfer, together with the Divisional President or Assistant Divisional Secretaries and at all reasonable times produce the bank books when required by the Divisional Executive for their inspection together with a copy of the general balance sheet;” 7

[17] Rule 29 – “Financial Year and Audit” of the Rules also provides:

“The Financial Year of the Divisional Conference shall terminate on the thirty first day of March each year, and an audited balance sheet shall be presented to Conference by the Divisional Secretary.

On the adoption of the balance sheet by the Divisional Conference, such decision with a copy of the balance sheet shall be published in the Division’s Journals.” 8

[18] Mr Dwyer stated that provisions to do with the funds of the Divisional Executive are also provided for in Rule 28. The income of the Divisional Conference comprises monies paid to it by the various State Branches by way of maintenance levies. These funds are then used to support the operation of the Divisional Office. He believed there were a number of reasons why the Divisional Office had incurred such significant losses in the first six months of the current 2011/2012 financial year. They included a reduction in membership numbers and costs associated with the number of staff employed in the Divisional Office. He accordingly considered the role of each person currently employed and subsequently decided on a restructure of those arrangements. This involved, on the one hand, the engagement of additional staff to try and assist with recruitment. An in-house lawyer was also engaged to attempt to reduce the cost of external legal advice and representation. There were also two other staff, apart from the Applicant, who were made redundant as part of the response to the financial situation confronting the Divisional Office.

[19] Mr Dwyer initiated discussions with the Applicant in late 2011 to consider what additional training opportunities might exist in an endeavour to support his role. He indicated in those discussions the focus of the role should be on the development and delivery of training, rather than the management of the training function within the Union. However, in early 2012 after further consideration he came to the conclusion that given the financial circumstances the Divisional Office could not afford to maintain the position of Manager, Learning and Development. A range of factors led him to this conclusion. They included the cost of the position, the reduction in membership, the ability to provide training utilising existing staff and other external resources, and the overall need to balance Divisional Executive priorities and available funding.

[20] Further discussions took place with the Applicant in early 2012 about his role and on 3 May Mr Dwyer and Mr Hardisty, an Assistant Divisional Secretary, met with the Applicant. It was indicated then redundancy was being considered, but a more detailed discussion would be had at some point in the future when the Applicant would be provided with the opportunity of having a support person present. This meeting subsequently took place on 30 May 2012. Mr Dwyer indicated he was also keen to defer any decision that resulted in the Applicant being made redundant until he had completed 12 months service because that would entitle him to a redundancy payment. Mr Dwyer confirmed in that meeting he had come to a decision he could not justify maintenance of the role of Manager, Learning and Development due to the prevailing financial circumstances confronting the Divisional Office. He said the Applicant responded by referring to the resolution of the Divisional Executive about the creation of the position, but there was little other substantive discussion about any other options that might exist. He said the discussions then turned towards the timing of the Applicant’s departure. An agreement was subsequently reached whereby the Applicant would be paid his accrued leave and redundancy entitlements and receive payment in lieu of notice based on a departure date of 22 June 2012.

[21] Mr Dwyer stated in conclusion, the Divisional Office did not have the necessary income to continue the Applicant’s employment having regard to its requirements and priorities. He also said at the time the Applicant was terminated he had no detailed work plan and no courses scheduled to be delivered. He has not been replaced and there is no present intention of replacing him. No redeployment possibilities existed and there were no other vacancies or suitable positions in either the Divisional Office or the Victorian branch.

[22] In cross-examination Mr Dwyer indicated he had no concerns with the Applicant’s work performance and in discussions with various Branch Secretaries in late 2011 the Applicant had been complimented in regard to the job he was doing. Mr Dwyer was also asked in cross-examination whether capital funds received from the recent sale of property could have been used to contribute to the operating expenses of the Divisional Office. He indicated in response he had not been authorised to spend the capital from that sale on projects, salaries, or ongoing expenses and it was important to maintain those capital funds. He also indicated he was not aware of any Divisional Executive decision to use capital funds for operational expenses.

[23] Mr Dwyer also indicated in cross examination that one of the problems he had encountered in reviewing the Applicant’s role and function was that some of the State Branches didn’t ask for training to be delivered and were not always receptive to and supportive of the development and provision of training programs by the Divisional Office.

[24] Mr Dwyer was also asked in cross-examination under which authority the Applicant’s employment was terminated. He indicated in response it was carried out in accordance with the Rules of the organisation, in particular Rule 40(o)(ii). The position occupied by the Applicant was established on the basis of a Working Party recommendation accepted by the Divisional Executive, however, the actual appointment to the position of Manager, Learning and Development had been carried out by the previous Divisional Secretary; in the same way Mr Dwyer had the power to dismiss the employee or make the position redundant.

[25] Mr Ken Hardisty, an Assistant Divisional Secretary, also gave witness evidence on behalf of the Respondent. He indicated at the time the position occupied by the Applicant was created he had doubts about whether there was enough work for a full-time role, given various State Branches already had established training arrangements in place. He attended the meeting on 3 May 2012 with the Divisional Secretary and the Applicant. The Divisional Secretary told the Applicant he was considering making his position redundant because the Division did not have sufficient work to justify a full-time position. The Divisional Secretary asked the Applicant to give thought to how it might be possible to generate sufficient work to justify the position. Mr Hardisty also attended the meeting on 30 May with the Applicant, the Divisional Secretary and Mr O’Nea, who attended as an observer on behalf of the Applicant. He said the Divisional Secretary again asked the Applicant if he had any thoughts about the development of the role, however, the Applicant made little comment in response. The Divisional Secretary again reiterated his view that there was not enough work to justify retention of the full-time position. He also noted the New South Wales Branch, being the biggest branch of the Union, had not used the Applicant in its training programs. He said the Applicant agreed with this view and acknowledged other branches did their own training. Mr Hardisty indicated the support of the State Branches on the Divisional Executive for the establishment and appointment of a Learning and Development Manager had not been supported in practice by some, who continued to utilise other training delivery options.

[26] The Respondent also submitted that with limited exceptions there were no issues concerning the Applicant’s work performance or capability, other than the “subsequently discovered matters”, and this supported its submission that the Applicant’s dismissal was based squarely on the position being made redundant. It acknowledged there is an ongoing requirement for training to be provided by the Divisional Office, but that need was being met by utilising existing resources and, in some cases, external providers. The Respondent also submitted the Divisional Office is expected to have a balanced budget and did not have the authority to use capital expenditure to cover operating expenses.

[27] The Applicant provided a detailed outline of submission and also provided evidence from a number of witnesses. The Applicant submits his dismissal was not a case of genuine redundancy as the employer has indicated that training, which was a significant part of the Applicant’s role, will continue to be carried out. He submits the creation of the role and its position description was approved by the management body of the Union, and the role continued to be required, particularly by the various State Branches. No review of the role had been carried out or considered by the Divisional Conference or the Divisional Executive, which was significant given the role had been established by that body. The Applicant also indicated he had difficulty in getting the Divisional Secretary to provide any detailed insights about his intentions or desired plans for the delivery of training programs. He also succeeded in early 2012 in gaining accreditation to become an HSR training provider, and approval to provide Work Health and Safety Act (HSR) right of entry permit holder training for Union officers and officials.

[28] The Applicant referred to the meeting with Mr Dwyer and Mr Hardisty on 3 May 2012. He said he raised a number of issues at this meeting about possible options and alternatives. In the subsequent meeting on 30 May he reminded Mr Dwyer that shortly after being elected to the position of Divisional Secretary he had indicated to the Applicant his role was assured. He also asked how the HSR training was going to be delivered without an approved trainer to provide the program. The rest of the meeting was taken up with negotiating an exit date. At no time during his employment did he receive any direction to do anything different, other than setting HSR training as a priority. The Applicant also provided a detailed report on the training programs he had designed, produced and delivered whilst employed by the Union.

[29] Mr Cameron Thiele is a former Divisional Secretary of the Communications Division of the Union and a former Queensland Branch Secretary. He was Divisional Secretary from 1 November 2010 until 1 August 2011. The position of National Learning and Development Manager was advertised in early 2011 and an interview panel constituted. Interviews were conducted and, as a result of the panel’s recommendation, an offer of employment was extended to the Applicant. Creation of the position was the result of a decision of the Divisional Executive, and his role as Divisional Secretary was to implement that decision. He indicated in cross examination he was not aware of any resolution of the Divisional Executive or Divisional Conference authorising the expenditure of capital sums on funding of the Divisional Office operations.

[30] Mr James Metcher is the Branch Secretary of the New South Wales Communication Division of the Union and has held this position since October 1996. He was the Chairperson of the Skills and Training Reforms Working Party, whose final report and recommendations, subsequently adopted by the Divisional Executive, included the appointment of the Learning and Development Manager. He confronted Mr Dwyer in May 2012 in relation to rumours he proposed to terminate the Applicant’s employment but this suggestion was dismissed. However, he subsequently learnt in June the position had been made redundant and that the Applicant had been terminated. He then discussed the matter with other Branch Secretaries and sought to have the decision overturned. The New South Wales Postal and Telecommunications Branch Committee of Management subsequently adopted a recommendation condemning the Divisional Secretary for his ongoing failure to discharge his duties and responsibilities in accordance with the decisions and policies of the Union.

[31] In his examination in chief Mr Metcher was asked what power the Divisional Secretary has in regards to determining the adequate level of staffing in the Divisional Office. He indicated:

“I can only rely on the rule and I don't think - from memory it's rule 40(o) that sets out the authority in terms of staffing within that rule, that is a requirement of the Divisional Conference or Divisional Executive. But also in that rule and in practice the Divisional Secretary then has responsibility for the selection of such staffing. The only other thing that I can say in terms of practice and with the rules, the Divisional Secretary also has authority in terms of determining the number and the selection of administration staff.” 9

[32] He also indicated the Divisional Conference would have sole responsibility to determine whether the Divisional Office ran at an operating loss or not. In cross-examination he confirmed he had not used the Applicant to deliver any training in the New South Wales Branch as he has other arrangements in place.

[33] Mr Barry McVee is the Secretary of the Western Australian Branch of the Communications Division of the Union. He was also a member of the Skills and Training Reforms Working Party that made recommendations to the Divisional Executive about the employment of a National Training Manager. He indicated he was part of that Working Party because of concerns the Union did not adequately resource the training of officials and delegates. Ms McVee referred to a number of reasons why he believed the Union required an internal trainer. The Branch had been working with the Applicant to develop training packages to be provided to workplace delegates. In cross-examination he indicated he was not aware of any resolution of the Divisional Executive or Divisional Conference authorising capital funds to be applied to the change project, or permitting the Divisional Office to operate at a deficit.

[34] Mr John O’Donnell is the Branch President in Western Australia. He expressed a strong view the Union continues to need to employ a Learning and Development Manager and had suffered by not having a dedicated officer in that role. He also indicated in cross-examination that the Applicant did not deliver training in Western Australia during the 12 months he was employed. He had a number of heated discussions with Mr Dwyer about the Applicant’s role and gained the impression he was perceived as being politically tied to one group, and his role was likely to come to an end.

[35] Mr Philip Hughes is the Branch Secretary of the Queensland Branch of the Union. He said the Applicant ran a two day Union representatives training course in Queensland in April 2012, which received excellent feedback from participants. In his view the employment of an internal trainer was particularly beneficial as the industries the Union was involved in are specific and in-house knowledge was advantageous to the training and development of Union representatives.

Consideration

[36] The Applicant contends his dismissal was not a case of genuine redundancy because the provision of training, which was a significant part of the role, is still being carried out by the Divisional Office of the Union. The Applicant also submits the employer has sought to justify the decision to make him redundant by suggesting the role was concerned with the management of training within the organisation, rather than with the development and delivery of training to relevant officials and delegates.

[37] The Respondent submits that for reasons primarily concerned with the financial circumstances confronting the Divisional Office it no longer required the Applicant’s job to be performed. Whilst there are some aspects of the job that will continue to be performed they will be carried out either by remaining members of staff or by means of other external providers.

[38] Section 389 of the Act deals with the meaning of “genuine redundancy”. It provides:

“(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.” 10

[39] The meaning of genuine redundancy in section 389 was considered by a Full Bench of Fair Work Australia in Ulan Coal Mines Limited v Henry Jon Howarth 11(Ulan Coal Mines), a decision referred to in the Applicant’s outline of submissions. The Full Bench in that matter considered the meaning and application of the relevant statutory provisions, including the words:

“...the person’s employer no longer requires the person’s job to be performed by anyone.” 12

[40] It indicated:

“These words have long been used and applied in industrial tribunals and courts as a practical definition of redundancy (see e.g. R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Cooperative Limited (1977) 16 SASR 6; Termination, Change and Redundancy Cases (1984) 8 IR 34 and (1984) 9 IR 115; Short v F.W. Hercus Pty Limited (1993) 40 FCR 511). They have also been adopted in the National Employment Standards provided under the Act in dealing with entitlements to redundancy payments (see s.119).” 13

[41] The Full Bench continued:

“The Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy:

‘1547 Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548 The following are possible examples of a change in the operational requirements of an enterprise:

• a machine is now available to do the job performed by the employee;



• the employer‘s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or



• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person‘s job no longer exists.’” 14

[42] The Full Bench continued:

“It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

‘What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.” 15

[43] The Respondent in the present matter has referred in detail to the situation that confronted him shortly after being elected to the position of Branch Secretary in 2011. A projected surplus of $20,000 over the full financial year had been budgeted for by his predecessor. The reality in the first five months of that financial year was an operating loss of $450,000, with the projected position being those losses would continue to accrue at a similar rate for the remainder of the financial year if action was not taken in response. The Divisional Secretary detailed a number of measures taken in an endeavour to respond to this situation. In terms of staffing arrangements they involved various employees being made redundant, and others recruited to try and attract members, and reduce the cost of external legal advice and representation. The Applicant’s position was reviewed as part of this process and a decision subsequently taken the position should be made redundant. Mr Dwyer’s evidence indicates this decision was arrived at because of the financial position confronting the Divisional Office, but was supported by his conclusions State Branches had made limited calls for training, and what training was required to be provided by the Divisional Office could be carried out by means of those staff remaining with resort to external providers, where necessary.

[44] I am satisfied in the same way as the decision arrived at by the Full Bench in Ulan Coal Mines that these circumstances fit within the ordinary meaning and customary usage of the expression in section 389(1)(a) of the Act where:

“...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”. 16

[45] The evidence indicates the financial circumstances confronting the Divisional Office were not sustainable and demanded change. Existing positions were each reviewed as part of that response, together with the functions the Divisional Office was required to discharge. Training was identified as being an ongoing part of that role, but as part of the restructure it was decided those tasks previously carried out by the Manager, Learning and Development would now be distributed between other employees.

[46] It is also well established that redundancy is linked to the continued utility of the job being performed, rather than to the competence or ability of the employee in that role. The Divisional Secretary clearly formed some adverse views about the Applicant because of his actions and behaviour in response to the possibility of his position being made redundant, and the subsequent decision to implement that outcome. In this context the Applicant’s attempts to garner support from State Branch officials to attempt to ensure the role was retained can be understood, if not necessarily condoned. However, prior to this time the evidence indicates the preparation and delivery of training materials and the training provided by the Applicant had been well received. Prior to joining the Union the Applicant also had long experience as a training provider. He also held specific training accreditation. If not for the dramatic financial situation that confronted the Divisional Office in 2011/2012 I see no reason why the Applicant would not still be employed by the Respondent in the role of Manager, Training and Development.

[47] I am also satisfied the Divisional Secretary did not take the decision to make the role redundant based on a view that the Applicant was a manager of training, rather than someone capable of developing and delivering training materials and programs. Whilst the Divisional Secretary did indicate he saw a limited management role for the position, particularly because it involved limited management of other employees, his evidence indicates he had discussions with the Applicant about ways in which the training role could be expanded and enhanced to make it more viable and able to be retained. Ultimately, however, I am satisfied the Divisional Secretary came to the view, for all the reasons already referred to, it was not viable to have a dedicated employee within the Divisional Office responsible for the provision of training.

[48] The Applicant also submits the Divisional Secretary did not have power in any case to terminate the role of Manager, Training and Development. The Applicant’s written submission states, in part, at page 2:

“No power to terminate employment exists for an officer or an official or a group of officers or officials under the rules of the union other than Divisional Conference or Executive. No delegation from the Divisional Conference or Executive to do same exists.” 17

[49] The submission also notes at paragraph 7 on page 3:

“None of the Union’s current Divisional Office elected officials were members of the Union’s working party that determined needs in relation to skills and training or were part of the Executive that directed the appointment of the Learning and Development Manager, although the current Divisional Secretary contributed to the working party’s deliberations.” 18

[50] The submission also notes the Divisional Executive decision No. 77 of 2010 which states:

“That the Divisional Executive endorses the Skills and Training Reforms Working Party – Final Report. Further the Divisional Secretary is requested to report to the Divisional Executive every three months on progress in implementing the recommendations contained in the report.” 19

[51] The first recommendation of seven contained in the report involves the appointment of a Learning and Development Manager and the Applicant was, of course, appointed to this role in May 2011 by the Divisional Secretary at the time, Mr Thiele. As indicated, the Applicant accordingly contends the Divisional Secretary had no authority to subsequently terminate the position without the approval of the Divisional Conference or Divisional Executive of the Communications Division.

[52] The Respondent submits the Divisional Secretary has various obligations and powers under the Rules of the organisation, which include the power to determine adequate levels of staffing in the Divisional Office, as well as the particular occupants of those positions at any point in time. The duties of the Divisional Secretary contained in sub-rule 40(o) have already been referred to and detailed.

[53] I am satisfied the Divisional Secretary, by virtue of the provisions contained in Rule 40(o)(ii) had the ability, in short, to “hire and fire”. I am also satisfied this continued to apply in regard to the position occupied by the Applicant, despite the fact it was established following recommendations contained in the Working Party Report endorsed by the Divisional Executive. Establishment of the position of Manager, Learning and Development was, in fact, the only one of a number of positions those recommendations had proposed be created that was acted on. The others were not acted upon because of the lack of funding to support their establishment. This provides further support for the view that the implementation and ongoing management of decisions taken in accordance with those recommendations resided in the Divisional Secretary pursuant to Rule 40(o)(ii), in particular. In any case the recommendation adopted by the Divisional Executive only required the Divisional Secretary to provide quarterly reports about progress in implementation. I am accordingly not satisfied Divisional Executive decision No.77 of 2010 can be construed as overriding Rule 40 to require the Divisional Secretary to have Divisional Conference or Divisional Executive approval before a decision was taken to make the position redundant.

[54] The Applicant’s appointment was made by the then Divisional Secretary as Rule 40(o)(ii) provides for. Other employees were also made redundant by the current Divisional Secretary as part of the restructure in response to the financial situation, seemingly without the legality of those decisions being called into question, either by the employees involved, or other officials of the Union. It is also noted that Mr Metcher and Mr O’Donnell did propose a motion for the Divisional Executive to consider in the following terms:

“Divisional Executive directs Divisional Secretary Mr Dan Dwyer to refrain from terminating the employment of Mr Tony Bridgeman who is employed in the position of National Manager, Learning and Development. This decision is to remain in effect unless otherwise determined by the decision of Divisional Conference or Divisional Executive.” 20

[55] That proposed motion was forwarded to the Divisional President on 22 June 2012 after the Applicant had already vacated his position and was not proceeded with. However, whilst Branch officials were clearly unhappy with the decision to make the Applicant redundant this proposed motion, or any subsequent action does not appear to call into question the Divisional Secretary’s ability to terminate staff in the Divisional Office or make positions redundant. I also note the Branch Officials, who were clearly unhappy about the decision to make the Applicant redundant in a strategic or operational sense, did not appear to take issue with the Divisional Secretary’s ability to ultimately make and implement that decision.

[56] Section 389(1)(b) of the Act also requires, in a case of “genuine redundancy,” that the employer has complied with any obligation in an applicable modern award or enterprise agreement to consult about the redundancy. No submissions were made about any modern award or enterprise agreement that applied to the Applicant’s employment and required particular consultation about redundancy. In any case I am satisfied appropriate processes of consultation were carried out. Discussions were had with the Applicant in late 2011 about his role and any additional opportunities that might be able to be pursued. The Applicant was subsequently alerted to the possibility of the position being made redundant in discussions in early May 2012. It was also indicated to him then that a further meeting would be convened to consider the situation again, and it was open to him at that time to have a support person present if he wished to take up that opportunity. For various reasons that next meeting did not take place until around one month later, allowing both parties adequate time to consider and respond to what was being proposed, prior to those discussions. In all the circumstances I am satisfied an appropriate level of consultation took place prior to the decision being taken to make the position redundant.

[57] Section 389(2) has also been set out previously and requires consideration of whether the person to be made redundant could be redeployed within the employer’s enterprise or an associated entity. The question of what is required in terms of the obligations imposed by section 398(2) has also been considered by this Tribunal and its predecessor. In Ulan Coal Mines Limited v Honeysett and Others 21 a Full Bench of the Tribunal held in regard to section 389(2):

“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.” 22

[58] The Respondent indicated that consideration had been given to whether the Applicant could have been redeployed elsewhere within the Divisional Office or the Victorian Branch, however, it had come to the view there was no other work or other roles that could be offered to the Applicant. The Applicant did not make any submissions suggesting this was a relevant consideration in the proceedings. I am satisfied in all the circumstances it was not reasonable for the Applicant to be redeployed, either within the Divisional Office of the Union or any other associated entities, including the Victorian State Branch.

[59] As indicated, based on the submissions and evidence provided by the parties in this matter I am satisfied the Applicant’s dismissal was a case of “genuine redundancy” in accordance with section 389 of the Fair Work Act2009. If a dismissal is found to be a case of genuine redundancy Section 385 of the Act provides the person has not been unfairly dismissed. The application is accordingly dismissed. Having come to this decision I have not found it necessary to deal with the issues described by the Respondent as “subsequently discovered conduct,” which it also sought to rely upon in the alternative in opposing the application.

COMMISSIONER

Appearances:

E. White of Counsel on behalf of the Respondent.

Hearing details:

2012.

Melbourne:

10 December.

11 December.

 1   Fair Work Act 2009 (Cth), s.385

 2   Ibid, s.396

 3   Transcript at PN112

 4   Ibid at PN113

 5   Applicant’s Outline of Submissions, at page 2

 6   Exhibit B1, attachment 5B at page 7

 7   Exhibit B1, attachment 4A at page 33

 8   Ibid at page 23

 9   Transcript at PN604

 10   Fair Work Act 2009 (Cth), s.389

 11   [2010] FWAFB 3488

 12   Fair Work Act 2009 (Cth), s.389

 13   [2010] FWAFB 3488 at paragraph 15

 14   Ibid at paragraph 16

 15   Ibid at paragraph 17

 16   Fair Work Act 2009 (Cth), s.389

 17   Applicant’s Outline of Submissions, at page 2

 18   Ibid at page 3

 19   Ibid at page 6

 20   Exhibit B1, attachment 10A at page 1

 21   [2010] FWAFB 7578

 22   Ibid at paragraph 28

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