Travis Iglewski v Australian Unity Group Services Pty Ltd
[2024] FWC 547
•24 APRIL 2024
| [2024] FWC 547 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Travis Iglewski
v
Australian Unity Group Services Pty Ltd
(U2023/12805)
| DEPUTY PRESIDENT BELL | MELBOURNE, 24 APRIL 2024 |
Application for an unfair dismissal remedy - jurisdiction objections - high income threshold - genuine redundancy - jurisdiction objections upheld - application dismissed.
Mr Travis Iglewski was, until 30 November 2023, the Head of Advice Assurance for the respondent, Australian Unity Group Services Pty Ltd. The respondent is a mutual company, whose business operations include insurance, banking, wealth and investment products and advice, and independent and assisted care living.
Mr Iglewski’s employment ended in connection with a commercial arrangement where the respondent divested key parts of its wealth advice business to Fortnum Private Wealth Ltd (Fortnum) and the AZ NGA Group. Mr Iglewski’s role was a position intended to transfer across as part of the divestment, and this is what ultimately occurred.
While Mr Iglewski took up an offer of employment with Fortnum effective on 1 December 2023, he contends that his dismissal by the respondent was unfair and, on 20 December 2023, made an application under s 394 of the Fair Work Act 2009 Act (Cth) (Act) for an unfair dismissal remedy.
The respondent has raised two jurisdictional objections, being on the respondent’s case:
· Mr Iglewski’s salary was above the high-income threshold and he was not otherwise covered by any award or enterprise agreement; and
· Mr Iglewski’s dismissal constituted a ‘genuine redundancy’ within the meaning of s 389 of the Act.
As Mr Iglewski’s base salary at the time of his dismissal was $205,509 plus superannuation, his income was substantially above the ‘high income threshold’ proscribed by s 382(b)(iii) of the Act. In answer to this, Mr Iglewski says his employment was covered by the Banking, Finance and Insurance Award 2020 (Award), meaning it does not matter that his salary was above the proscribed limit. In relation to whether the dismissal was a genuine redundancy, Mr Iglewski states that he was not consulted in accordance with the Award obligations and that he ought to have been redeployed.
In his application for his unfair dismissal claim, the sole item that Mr Iglewski identifies as desired outcome is payment of his redundancy entitlements “in accordance with relevant Australian Unity Standard”, which he says equates to 20 weeks payment. At a mention hearing before me on 2 February 2024, it was made clear that the reference to the Australian Unity Standard is to a contractual policy. The policy, so far as it is a source of any monetary entitlement, is an entitlement only in contract and this is not a matter that forms part of this decision.
In accordance with directions I issued, each party filed the material they wished to rely upon. Mr Iglewski filed a statement on behalf of himself and the respondent a statement by Mr Dave Van Sanden, the General Manager (Legal, Governance & Regulatory Assurance) for the respondent. Both witnesses’ statements were adopted and tendered. Each witness was cross-examined.
Legislative context
A person cannot obtain a remedy for unfair dismissal unless the person was ‘protected from unfair dismissal’ at the time they were dismissed: s 390(1). By s 382(b), an employee is not ‘protected from unfair dismissal’ unless, at the time of dismissal, one or more of the following apply:
“(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations is less than the high income threshold.”
There is no dispute that there was no applicable enterprise agreement or that Mr Iglewski’s employment was above the high income threshold. The sole issue concerning s 382 is whether a modern award covered Mr Iglewski’s employment.
By s 385, a person will not be “unfairly dismissed” unless the dismissal was not a case of “genuine redundancy”.
Section 389 sets out what is a genuine redundancy. The section states:
“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.”
The Award provides for reasonably broad-banded position classifications, from Level 1 (as the most junior) to Level 6 (as the most senior). Mr Iglewski says he was properly classified at Level 4.
For completeness, the Award classification descriptions for Levels 4 – 6 were:
“A.4 Level 4
A Level 4 position is one in which tasks and service requirements are performed using a more extensive range of skills and knowledge at a level higher than required at Level 3. Those employed at this level are responsible for their own work and any employees under their control.
Positions at this level require the application of relevant specialist knowledge and experience.
Those employed at this level are required to advise on a range of activities and contribute to the determination of objectives within the required area of expertise.
Typical activities and skills may include but are not limited to:
· managing and maintaining service standards;
· overseeing day-to-day operations of functional areas of responsibilities;
· implementing and maintaining effective controls;
· initiating disciplinary processes;
· assisting with the recruitment and selection of staff; and/or
· preparing of reports.
Indicative job list—human resource officer, learning and development officer, compliance officer, personal assistant, assistant accountant, accounts officer, claims officer, assistant underwriter, customer relationship manager, settlement officer, collections officer, lending officer, administrative officer, personal lending relationship officer, personal banker, customer service specialist agency officer, branch services officer, senior case manager, entry level team leader, senior technical officer.
A.5Level 5
A Level 5 position is one in which tasks, service requirements and supervisory functions are performed using a more extensive range of skills and knowledge at a higher level than required at Level 4.
The position may be:
(a)a specialised role, possibly supported by one or 2 junior staff members, requiring formal qualifications and/or specialised vocational training; and/or
(b)a managerial role (managing 5–10 people) responsible for the operation of part or parts of the employer’s business.
Those employed at this level exercise considerable discretion and/or are responsible for operational planning.
Indicative job list—human resources consultant, senior learning and development officer, accountant, senior claims officer, analyst programmer, fraud investigator, call centre team leader, credit controller, administration manager, underwriter, sales manager, customer service team leader, assessor, loss control officer, business analyst, assistant branch manager, personal lending specialist, team leader.
A.6 Level 6
A Level 6 position typically performs a middle managerial role primarily to control the conduct of a part of the employer’s business and in which decisions are regularly made and responsibility accepted on matters relating to the administration and conduct of the part of the business. Those responsible for managing more than 10 people must be classified at this level provided that this level 6 classification does not cover classes of employees:
(a)who, because of the nature or seniority of their role, were not traditionally covered at all by awards; or
(b)who perform work that is not of a similar nature to work that has previously been regulated at all by awards.
Indicative job list—branch manager, human resources or fraudulent relations manager, financial planner, information technology specialist, relationship manager, senior analyst, subject matter manager, divisional manager.”
As to the relative consultation clause of the Award, the relevant clause provided:
“28. Consultation about major workplace change
28.1If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a)give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b)discuss with affected employees and their representatives (if any):
(i)the introduction of the changes; and
(ii)their likely effect on employees; and
(iii)measures to avoid or reduce the adverse effects of the changes on employees; and
(c)commence discussions as soon as practicable after a definite decision has been made.
28.2For the purposes of the discussion under clause 28.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a)their nature; and
(b)their expected effect on employees; and
(c)any other matters likely to affect employees.
28.3Clause 28.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
28.4The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 28.1(b).”
Factual background and findings
Mr Iglewski commenced employment with the respondent in April 2019.
Mr Iglewski’s employment contract established that his position was Head of Advice Assurance with Australian Unity’s Wealth & Capital Markets platform. The contract also stated he reported to “GM Business Services, Product & Legal”. By late 2023, Mr Iglewski reported to Mr Van Sanden, whose title was General Manager (Legal, Governance & Regulatory Assurance).
The employment contract described Mr Iglewski’s position as being referrable to an attached position description “as well as any other duties which the Company … may assign to you from time to time which are suitable for you, having regard to your skills, training and experience.”
Mr Iglewski’s evidence pointed out that there was no position description for his role and there was no such document brought to my attention. Mr Iglewski provided little detail in relation to the tasks and duties he performed, although he stated his position was “best described” by Level 4 of the Award because he was:
“• largely responsible for his own work noting no direct reports at time of employment;
· applied relevant specialist knowledge and experience to his position;
· managed and maintained service standards across the business;
· implemented and maintained effective controls, particularly around advice delivery;
· initiated disciplinary processes escalating matters to the Consequence Committee; and
· prepared quarterly reports for the Licensee Management Committee.”
Mr Van Sanden provided greater detail as to Mr Iglewski’s role, which included the following:
“a. Oversight of the Advice assurance framework, which was used for the assessment of the quality of advice provided by approximately 170 advisers across the Australian Unity advice network.
b. Responsibility for the end to end management of Australian Financial Complaints Authority (AFCA) complaints in connection with the Advice business.
c. Member of the Advice Consequence Management Committee (ACMC), being a management committee that oversees consequence management of advisers. Effectively, consequence management was an aspect of the Adviser assurance framework regarding the quality of adviser performance with respect to client files. Other members of this Committee included:
i. Executive General Manager, Advice, Wealth & Capital Markets,
ii. General Manager Legal, Governance & Regulatory Assurance, Wealth & Capital Markets,
iii. Head of Risk & Compliance, Wealth & Capital Markets,
iv. General Manager Licensee Services, Wealth & Capital Markets, and
v. General Manager Australian Unity Financial Advice and Personal Advice.
d. Member of the Advice Licensee Management Committee (ALMC), which is the committee that oversees compliance with Australian Unity’s Financial Services Licence (AFSL) conditions. The Applicant advised the ALMC on various matters in connection with adviser assurance (e.g. adviser complaints, assurance compliance file reviews etc.). The members of the ALMC were the same as the members of the ACMC.
e. Overseeing and leading Australian Unity’s four Advice Assurance Specialists. The Advice Assurance Specialists were responsible for the effective execution of file review and audit processes for the delivery of financial advice by Representatives and Authorised Representatives of Australian Unity Advice. Advice Assurance Specialists formed a critical function within the Advice business’ overall supervision and monitoring framework.
f. Responsible for the collation of documents and other information when responding to subpoenas and other regulatory and court related inquiries received by the Advice business.
g. Assisted and provided technical subject matter expertise to address risk & compliance incidents and breach management within the Advice business.
h. Assist with liaising with Australian Securities & Investments Commission (ASIC) on breaches.
i. Assist with managing disputes and legal proceedings, including two recent matters in the County Court. The Applicant also participated in settlement discussions with the other party.
In addition, Mr Van Sanden stated that Mr Iglewski:
· Played a significant role in the due diligence undertaken by Australian Unity Advice for the purpose of assessing suitability of new advisors proposed to be authorised under the AFSL legislation; and
· Was “considered a senior manager” within Australian Unity’s Advice business, and that Mr Iglewski was “three positions below the Group Managing Director & CEO of the Australian Unity Group.
There was broadly little challenge by either party to the above summary. I accept Mr Van Sanden’s more detailed evidence as being of greater assistance, although in relation to the final point that Mr Iglewski was “considered” to be a senior manager, it was not clear who “considered” that (other than Mr Van Sanden, I infer) or why. There was no organisational chart provided as to reporting structures or any other meaningful description about the same.
While Mr Iglewski’s role was Head of Advice Assurance, he was not located within the wealth advisory business of the respondent. Mr Iglewski sat in the governance group, which I infer provided general oversight and/or advice to the wealth advisory business. Contrary to Mr Iglewski’s statement, he had three direct reports, who were advice insurance specialists – Mr Iglewski acknowledged this in cross-examination.
While the timing of the divestment was not clear in the evidence, I infer that at least in around the final quarter of 2023, the respondent was in active discussions with a potential purchaser for the respondent’s wealth advisory business.
On 9 November 2023, Australian Unity Limited entered into contracts to divest its Advice business to Fortnum and the AZ NGA Group. The contracts were not before me.
While the details of the foreshadowed deal was kept confidential from staff, Mr Van Sanden said there were an “extremely small group of individuals in the tent”, with Mr Iglewski being one of them. Although the timing was again unclear (and may have been not much earlier, if at all, prior to 9 November 2023), neither party drew my attention to any pre-announcement discussion of relevance to Mr Iglewski’s circumstances and I infer there were none.
The transaction was announced to staff on 13 November 2023 and the completion date for divestment was announced on the same date to take effect on 1 December 2023.
On the morning of 13 November 2023, a staff presentation was made by the CEO Wealth & Capital Markets and the Executive General Manager Advice. The slide pack addressed a number of matters, many of which are unnecessary to summarise, but included information about the corporate profile of the acquirers.
One slide was titled “The future of Australian Unity Advice” and stated:
“We’ve entered an agreement to join forces from 1 December 2023 with AZ NGA’s Nestworth and Fortnum Private Wealth (Fortnum), which involves:
1. Fortnum purchasing our licence and providing related services to all our advisers and practices under the licence
2. AZ NGA, through it’s (sic) Nestworth business, purchasing our employed advice business and corporate superannuation services
3. Forming a mutually beneficial, ongoing strategic alliance which will see this group provide advice to our clients, employees and members.”
A separate slide stated that “Most employees will transfer across, but unfortunately a small number of roles will no longer be required.”
On the same day, Mr Iglewski (and, I infer, most affected employees) received a letter of offer for employment from Fortnum and a separate letter from the respondent.
The new offer of employment was not in evidence before me. In a “comparison document” prepared by Mr Iglewski, he gave a list of five items that was said to demonstrate “significant increases in the depth and breadth of the role offered.” Those five items were:
· Direct reports (changing from 3 to 9);
· Key areas of responsibility (said to change from 3 to 6)
· Governance of Australian Financial Services Licences (changing from 1 to 3);
· Authorised representatives that require monitoring and supervision assurance (said to change from approximately 180 to approximately 400); and
· Head office location (changing from Melbourne to Sydney).
In the absence of any meaningful detail of the changes, I am unable to assess to what degree, if at all, the changes involved “significant increases in depth and breadth” of his role. In terms of the salary package, Mr Iglewski stated that the new package was broadly “similar” on quantum, although he says a couple of benefits were lost.
Mr Iglewski’s statement indicated that the offer from Fortnum required acceptance by 16 November 2023.
The letter from the respondent on 13 November 2023 was titled “Notification of transfer of employment acceptance award”. This letter was in evidence. Among other matters, the letter indicated an awareness that Mr Iglewski would be offered a position by Fortnum. So much is expected in light of the information session delivered to employees and, I infer, details exchanged between the respondent and Fortnum as part of the divestment arrangements. The letter to Mr Iglewski then stated:
· Mr Iglewski’s employment with the respondent would end on 30 November 2023 and his role with Fortnum would commence on 1 December 2023;
· No redundancy would be paid under the respondent’s redundancy policy because, according to the letter, no payments under that policy arise where there is a transfer of business;
· Mr Iglewski would be entitled to 5 weeks’ notice;
· Mr Iglewski was required to work his notice period from 13 November 2023 to 30 November 2023, with the balance to be paid in lieu;
· Fortnum would recognise Mr Iglewski’s service with the respondent for the purpose of leave (personal leave, annual leave, parental leave, and long service leave), notice of termination and redundancy.
The letter then provided an offer of $7,191 less superannuation on account of Mr Iglewski forfeiting his eligibility for a short-term variable compensation bonus for the five months worked in that financial year. The offer was conditional upon various matters, the most notable being that Mr Iglewski accepts the offer of employment with Fortnum by 16 November 2023 and he remained continuously employed with the respondent (without giving notice of resignation) up to and including 30 November 2023.
The letter foreshadowed more details would be provided about the transition as 30 November 2023 approached and provided contact details within People & Culture if Mr Iglewski had any questions.
In response to a question in cross-examination, Mr Van Sanden gave evidence of a brief conversation with Mr Iglewski on 13 November 2023. According to Mr Van Sanden, Mr Iglewski indicated he wasn’t “averse to the actual transition” and he was “actually looking forward to the transition”, although the details of the conversation were not provided. Although I accept Mr Van Sanden’s impression of that discussion, I place little weight on those matters as it was not clear to me if that conversation occurred before Mr Iglewski received the written offer from Fortnum and it was not put to Mr Iglewski. In any case, it is clear that Mr Iglewski’s attitude appeared to change.
In Mr Iglewski’s written statement, he says:
“During the period 13 November 2023 to 16 November 2023, the Applicant made numerous attempts to engage in discussions and raise concerns with the major workplace changes, however, the Respondent refused to meaningfully engage or provide the Applicant with a genuine opportunity to be heard. This included ignoring concerns the Applicant raised with Dave Van Sanden, his manger as well as the concerns raised at the Advice Leadership Team meeting held on 15 November at 1pm.
As the Applicant was required to accept the new employment contract by 16 November 2023, the Applicant was left with the undesirable choice of accepting employment with the business that acquired the Advice business divested by the Respondent, on unfavourable terms & conditions, or be left with no gainful employment and threatened with no entitlement to his redundancy.”
While Mr Iglewski states he made “numerous attempts to engage in discussions and raise concerns with the major workplace changes”, he gives no detail about what they were.
Mr Van Sanden’s evidence is that, across 15 and 16 November 2023, Mr Iglewski and Mr Van Sanden spoke about Mr Iglewski’s circumstances further. The tenor of those conversations was that Mr Iglewski expressed concern about the “broadening” of his new role with Fortnum and his “disappointment” in how the respondent had treated him. According to Mr Van Sanden, whose evidence on this issue I accept, Mr Iglewski was particularly aggrieved that he had been denied the opportunity to negotiate a salary increase and the short period of time involved.
Mr Van Sanden then describes (and I accept) various efforts he and others made to encourage Fortnum to improve the financial offer it was making to Mr Iglewski. Unfortunately for Mr Iglewski, those efforts were unsuccessful.
I accept that as part of Mr Iglewski’s desire to get paid more money that he raised concerns about not knowing the details of the new role (and hence the concern about that role “broadening”). While I have no doubt Mr Iglewski was sincerely seeking that information, it was not information that the respondent had but it was seeking to help in finding it out.
There was no discussion about redeployment opportunities and Mr Iglewski never raised the issue. In response to a question asked in cross-examination about a different employee who was paid a redundancy (because he was not transferred to Fortnum), Mr Van Sanden’s evidence was that while had turned his mind to available roles within the organisation in the context of considering alternatives for that different employee (of similar seniority and skill set to Mr Iglewski), there were no suitable positions.
For completeness, I note that following the hearing, Mr Iglewski wrote to chambers on the basis that there was some “evidence provided at the hearing was the first time the Respondent had submitted these facts” and sought to advance two specific matters. One of those matters was that, according to that other employee I described in the preceeding paragraph, there were two job opportunities presented at the time (albeit neither was accepted because the employee in question wished to take a redundancy package instead). No detail was given about what the two positions were, the associated pay or anything. The email itself is hearsay and the information attributed to the other employee is at least second-hand hearsay. Mr Iglewski was fully aware that the other employee had been made redundant. It was open for Mr Iglewski to have spoken to him prior to the hearing and possibly even called the other employee as a witness. I place no weight on those matters raised after the hearing.
Further, even if I were to accept them, Mr Iglewski does not say that he would have accepted either position (even if they were positions that existed and assuming they were positions that were potentially suitable to Mr Iglewski). Given Mr Iglewski’s seniority, it seems improbable that any such positions were at the same level to Mr Iglewski’s then role or more senior and there is simply no evidence to suggest Mr Iglewski would have accepted such a position.
On 16 November 2023, Mr Iglewski signed the letter of offer from Fortnum for the position with that entity. In his oral evidence, Mr Iglewski says he was “forced” to do so. While I accept he was feeling the pressure of having to make an imminent decision, he was not forced to do so, although it is clear that he considered more money should have been offered to him.
On 20 November 2023, Mr Iglewski sent an email to Mr Van Sanden. Mr Iglewski’s evidence says he raised “numerous issues”. Those issues were not in evidence, nor was the email. Mr Van Sanden’s evidence indicates that Mr Iglewski “sought an ex gratia payment from Australian Unity to resolve his concerns”.
On 28 November 2023, Mr Van Sanden says he spoke to Mr Iglewski about the email of 20 November 2023. Mr Van Sanden’s written statement, which I accept, states that Mr Van Sanden offered, together with the CEO of Wealth & Capital Markets, to speak with Fortnum about Mr Iglewski’s salary expectations and role. Mr Iglewski told Mr Van Sanden that, while he thanked him for the efforts, he expressly requested that Mr Van Sanden did not speak to Fortnum.
As indicated above, after the hearing, Mr Iglewski wrote to chambers about two further matters. The second issue raised concerned the subject of any conversation on 28 November 2023. Mr Iglewski stated any such conversation was “highly improbable”. In support of that proposition, he attached a flight itinerary showing he travelled to Perth that day and a Teams message further showing he was unavailable up until 3pm that day. The travel and message can be accepted, but that does not exclude capacity for a short telephone call on a topic of close interest to Mr Iglewski. Further, Mr Iglewski does not say the call did not happen and, in his oral evidence, said he could not recall it. I generally consider that Mr Van Sanden gave the more reliable evidence of the two witnesses and I prefer his evidence to the extent of differences, save as I might have indicated above.
On 30 November 2023, Mr Iglewski served his final day of employment with the respondent.
On 1 December 2023, Mr Iglewski commenced employment with his new employer, Fortnum.
Mr Iglewski was paid the $7,191 referred to in the letter from the respondent dated 13 November 2023.
Consideration
Was Mr Iglewski covered by the Award?
Mr Iglewski contends he was a Level 4 classification under the Award. While I accept that aspects of Mr Iglewski’s role appear consistent with some of the descriptions for that classification – eg “managing and maintaining service standards” – those matters must be read against the totality of the classification descriptor, including the “indicative job list”.
I do not consider that Mr Iglewski’s job was reflected in any of the indicative jobs described and, while that itself is not essential, a much more important consideration was that the indicative jobs described at Level 4 were far more junior than Mr Iglewski’s actual role.
While the Level 5 descriptor is closer to the mark as encompassing a “specialised role, possibly supported by one or 2 junior staff members”, I note that the three people reporting to Mr Iglewski did not appear to be junior staff but were advice insurance specialists. While Mr Iglewski’s role in part was a “managerial role”, I again consider that the broad descriptions in Level 5 of the Award are conditioned by the “Indicative job list” that is provided. I consider that Mr Iglewski’s actual role is more senior, and provides a greater level of complexity, to those reflected by the indicative jobs listed.
This leaves Level 6 as a potential comparator. A Level 6 position “typically” perform a “middle managerial role” primarily to control the conduct of a part of the employer’s business and in which decisions are made, and responsibility accepted, on matters relating to the administration and conduct of that part of the business.
However, it is again the indicative job list that belies the seniority of Mr Iglewski’s actual role against the kinds of jobs contemplated by the Award. The respondent’s wealth management business that was divested provided wealth management advice to existing clients. Persons giving such advice (depending on their own seniority) could readily be described as a “financial planner”, which was one of the indicative jobs listed. But the evidence before me was that Mr Iglewski was not part of the advisory team – he was separated from it, and in a real sense above it, in a governance role and with his apparent expertise. Mr Iglewski was “Head” of advisory assurance.
A factor in favour of Mr Iglewski’s role being covered by the Level 6 classification is the generality of some of the other indicative positions such as “branch manager”, “subject matter manager”, and “divisional manager”. An important element of Mr Iglewski’s role was “end to end management” of complaints in connection with the Advice business.
Whether Mr Iglewski is covered by an Award is a matter whose onus lies with him. Mr Iglewski’s material was cursory and conclusionary in this respect, at best.
I am not satisfied on the material before me that, in light of the senior functions and governance responsibilities of Mr Iglewski as described by the respondent that his role was covered by the Award. On this basis, Mr Iglewski’s claim must be dismissed as he was otherwise well above the high income threshold and no enterprise agreement was applicable.
If, however, I was found to be wrong about that matter, I will consider the remaining objections raised by the respondent.
Whether job no longer required – s 389(1)(a)
Briefly stated, I am satisfied that the requirements of s 389(1)(a) are met and neither party indicated to the contrary. While Mr Iglewski appeared to suggest that his role might not be redundant because he was “not positioned in the Advice business divested”, the fact was that his role was no longer required because his work was closely linked to the Advice business and the Advice business was being divested. It was also evidently for that reason that Fortnum made him an offer for his position.
Consultation – s 389(1)(b)
On the assumption that the Award applied to Mr Iglewski, an issue of controversy is whether the respondent complied with the consultation obligations in cl 28 of the Award. Clause 28, set out above, was plainly triggered by the “definite decision” to make Mr Iglewski’s position redundant.
I find that the “definite decision” was made on 9 November 2023, upon the execution of the suite of divestment contracts with Fortnum.
By cl 28.1(a), the employer was required to “give notice” of the changes to Mr Iglewski. I am satisfied that it did so on 13 November 2023 by the staff presentation and letter to Mr Iglewski.
As soon as practicable after that definite decision, by cl 28.1(b) the employer was required to discuss with Mr Iglewski (and I note he did not have any relevant representative): the introduction of the changes; their likely affect on him; and measures to avoid or reduce the effect of the changes on Mr Iglewski.
By cl 28.2, the employer must give in writing “all relevant information” about the changes, including: their nature; their effect on Mr Iglewski; and other matters likely to affect Mr Iglewski.
In the present case, the “changes”, their “likely effect” and “nature” are readily identified: Mr Iglewski’s job was being made redundant, because the relevant part of the business was being divested to a third party. Absent finding different work, Mr Iglewski would no longer be employed by the respondent. The divestment was to take effect by 1 December 2023. I am satisfied that all those elements were discussed with, and understood by, Mr Iglewski.
I am also satisfied that the respondent gave information in writing about the nature of the changes and their likely effect – being redundancy – which was provided by the presentation on 13 November 2023 and the letter that followed in accordance with cl 28.2 of the Award.
As to “measures to avoid or reduce” the adverse effects of the redundancy changes for the purposes of cl 28.1(b)(iii), I am satisfied that these measures were discussed in the same communications. These discussions also constituted “other matters likely to affect” Mr Iglewski for the purpose of cl 28.2, although there were also other matters beyond this that I will turn to.
The discussion contemplated by cl 28.1(b) is not necessarily a single event, although it may be so. I am satisfied that further discussions in accordance with cl 28.1 followed with Mr Van Sanden over 15 and 16 November 2023 and again, briefly, on 28 November 2023.
The focus of those discussions was to assist Mr Iglewski in better understanding the role being offered by Fortnum. Necessarily, there was a limit to what information the respondent could provide because the specific details of such matters were within the control of Fortnum. The respondent did offer to advocate on behalf of Mr Iglewski to Fortnum, both for the purposes of getting a better understanding of the new role and attempting to secure an improved financial offering. So far as the respondent was capable of providing relevant information, I am satisfied that it did so. In doing so, I find that the respondent discharged its obligation under cl 28.4 of the Award to promptly consider matters raised by Mr Iglewski.
Throughout these discussions between Mr Iglewski and the respondent, the only substantive issue raised by Mr Iglewski concerned money. I also note that the sole item sought as the “Desired outcome” in the Form F2 for Mr Iglewski’s unfair dismissal claim was payment of his “redundancy entitlements in accordance with relevant Australian Unity Redundancy Standard”, which was said to be 20 weeks’ pay.
While the respondent did not specifically discuss alternative job offers (because there were none), Mr Iglewski did not raise the issue. Mr Iglewski’s written statement asserts there “could have been” a “genuine possibility” for redeployment if the issue was raised and he was deprived of “the opportunity”. I disagree. First, as I have found, there were no relevant positions. Second, there is a degree of unreality in Mr Iglewski’s submissions, in that he was a senior executive, plainly capable of asking the question about redeployment. It would appear that he assumed – correctly – that there were no such positions (or certainly none that he would take given the issues he was raising about compensation) or that he was not interested.
In conclusion, I am satisfied that the respondent discharged its consultation obligations under the Award, to the extent that they applied.
Whether reasonable to redeploy – s 389(2)
I repeat my observations about that there were no positions drawn to my attention that it would have been reasonable in all the circumstances for Mr Iglewski to be redeployed into. Section 389(2) is therefore not applicable.
Conclusion
The respondent’s jurisdictional objections are upheld. Accordingly, Mr Iglewski’s claim for unfair dismissal must be dismissed. An order[1] to this effect will be issued concurrently with these reasons.
DEPUTY PRESIDENT
Appearances:
T. Iglewski on his own behalf
C. Tomeldan from the Respondent
Determinative conference details:
2024.
Melbourne:
February 29.
[1] PR774139
Printed by authority of the Commonwealth Government Printer
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