Wolfe v Australia and New Zealand Banking Group Limited

[2013] FMCA 65

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WOLFE v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 [2013] FMCA 65

INDUSTRIAL RELATIONS – Applicant claims adverse action including dismissal – Applicant relies on workplace right to take annual and long service leave – Applicant alleges discrimination on basis of family responsibility – application of s.361 of the Fair Work Act 2009.

Fair Work Act 2009, ss.18, 117, 340(1), 341(1), 342, 351(1), 360, 361, 539, 545(1)

Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another  (2012) 290 ALR 647
Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402

Patrick Stevedores Operations No 2 Pty Ltd v MUA (No 3) (1988) 195 CLR 1
Qantas Airways Limited v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244

Waters v Public Transport Corporation (1991) 173 CLR 349

Applicant: SIMON WOLFE

Respondent: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
ACN 005 357 522

File Number: SYG 552 of 2012

Judgment of: Whelan FM

Hearing dates: 20, 21, 22 and 23 November 2012

Date of Last Submission: 23 November 2012

Delivered at: Melbourne

Delivered on: 7 February 2013

REPRESENTATION

Counsel for the Applicant: Mr Hall with Ms S Ross

Solicitors for the Applicant: McArdle Legal

Counsel for the Respondent: Mr Prince

Solicitors for the Respondent: Ashurst

ORDERS

(1)    That the Application filed 12 March 2012 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 552 of 2012

SIMON WOLFE

Applicant

And

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522

Respondent

REASONS FOR JUDGMENT

Introduction

1.This is an application pursuant to s.539 of the Fair Work Act 2009 (“the Act”), in which, Mr SIMON WOLFE (“the Applicant”) claims that the AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD (“the Respondent”) took adverse action against him in contravention of s.340(1) and/or s.351(1) of the Act.

2.The Applicant claims that the adverse action taken by the Respondent consisted of:

·his dismissal from employment;

·the failure to give him the opportunity to apply for the position of ‘Director’ in his work team;

·choosing to appoint a new employee to the position of Director;

·choosing to retain another employee (“RG”) as ‘Associate Director’ instead of the Applicant;

·giving the Applicant a Relative Performance Ranking (“RPO”) of RPO4 in the 2011 performance year;

·refusing to pay the Applicant a bonus for the 2011 year; and

·redeploying the Applicant away from his work team, offering him no alternative position and providing him with no work prior to his dismissal.

3.The Applicant contends that the adverse action was in breach of s.340(1) of the Act because a reason for the action was his exercise of a workplace right to take annual leave and long service leave; and in breach of s.351(1) of the Act because his absence from the workplace was to take care of family responsibilities.

4.The Respondent does not dispute that the Applicant had a workplace right to take long service leave and annual leave and admits that the reason for taking such leave was for him to take care of family responsibilities. The Respondent accepts that the Applicant’s dismissal from employment meets the definition of adverse action under the Act. The Respondent does not admit that the other claimed actions by the employer were adverse action or that any actions were taken for a prohibited reason.

Background

5.The Applicant commenced employment with the Respondent in October 1995 as a graduate. In mid-1997 he commenced working in the foreign exchange (“FX”) area of the bank and by late 2005 he was designated as an Associate Director of the FX Institutional Sales New South Wales team. In November 2009, he was promoted, although his title remained unchanged.

6.In 2010, the Applicant applied for the position of Head of Institutional FX, New South Wales. He was interviewed for the position by GREGORY MICHAEL COMPTON (“Mr Compton”), who at that time was Head of Business Management, Corporate Sales, Australia. (In November 2010, he was promoted to Head of Corporate Sales, Australia, Global Markets).

7.The Applicant was not successful in that application and the position of Head of Institutional FX, New South Wales was given to RICHARD STEVEN JONES (“Mr Jones”), who had been with the bank since 2006 as an Associate Director on the FX Institutional Sales Desk in Melbourne.

8.On 28 October 2010, the Applicant’s third child was born. In February 2011, the Applicant’s wife was asked to return to work from maternity leave by her employer and the Applicant applied to take annual leave and long service leave to care for his family, and in particular his young daughter. In late April 2011, this leave was approved and the Applicant proceeded to go on leave on 30 May 2011 with a return date of 7 October 2011. For the first few weeks he continued to assist colleagues from home with work for clients he had initiated before taking leave.

9.In March 2011, another Associate Director (“MG”), on the FX Institutional Sales New South Wales team, left the team to take up another position in the bank. His position was advertised internally from 30 March 2011 until 6 April 2011. Mr Jones was not satisfied with the internal applicants and sought, and obtained, the permission of Mr Compton to canvas through ‘head hunters’ external candidates. As part of that process the decision was made to upgrade the position to Director with a commensurate increase in salary. The position was not re-advertised internally and an external candidate was made a verbal offer in June 2011. The position was not, however, formally regraded until 6 October 2011, and the successful candidate did not take up the position until January 2012.

10.On 4 August 2011, Mr Compton was asked by SHAYNE COLLINS (“Mr Collins”), who was at that time Global Head of Corporate Sales Australia, to reduce the number of full-time employees in the Corporate Sales Australia team. Mr Compton’s evidence was that he discussed the position with all state Desk heads and the HR Business Partner (Global Sales).[1] In all, 13 positions were identified impacting on 53 employees who would be required to participate in a ‘spill and fill’ process.[2] One of the decisions made was to merge the positions of the Applicant and RG into a single Associate Director role in the FX Institutional New South Wales team.

[1] Affidavit of Gregory Michael Compton affirmed 28 September 2012 at [15].

[2] Affidavit of Gregory Michael Compton affirmed 28 September 2012 at [16].

11.Mr Jones was scheduled to take annual leave from 12 September 2011 until 3 October 2011. At some time after 2 September 2011, but before 12 September 2011, Mr Compton informed Mr Jones of the decision to merge the two roles and the timetable for the process. Mr Jones expressed a preference for the retention of RG rather than the Applicant.

12.On 21 September 2011, the Applicant received an email sent on behalf of Mr Compton enclosing an ‘Employee Information Pack’ about the restructure. He also received a telephone call from Mr Compton advising him of the restructure and that he could apply for the remaining Associate Director job as well as any other impacted jobs. He also advised him of the relevant dates for the preference and the selection process.

13.The process required the Applicant to submit a ‘Preference Form’ by 5 October 2011. There was provision for a ‘consultation’ period from 21 September to 26 September 2011. This seemed to consist of employees providing ‘feedback’ by completing a ‘Feedback Form’. The document also refers to a ‘Preference and Selection Discussion’, although this is not contained in the ‘Planned Timeline’, and to a ‘Preference and Selection Workshop’, which appears to have been a telephone link up on 7 October 2011, when the formal selection decisions were made. Outcomes were to be advised to employees on 11 October 2011.

14.Apart from his own position, of the other positions available for which the Applicant could apply, in competition with other staff, nine were interstate and four were different roles in other teams. On 4 October 2011, the Applicant completed the ‘Global Markets Preference and Selection Form’, he listed only the position of Associate Director Institutional FX, New South Wales.

15.On 5 October 2011, Mr Jones spoke to the Applicant who raised the issue of why he had not been able to apply for the Director’s role. By this time, the Applicant had already submitted his ‘Preference and Selection Form’.

16.On 7 October 2011, Mr Jones notified the ‘Preference and Selection Workshop’ that RG was the preferred candidate for the remaining Associate Director role. According to his evidence, he identified RG as having “stronger relationships with his clients” and a demonstrated capability to identify and propose strategic transactions. He also generated more revenue from options transactions.[3] It was Mr Compton’s evidence that he agreed with Mr Jones because “RG has stronger customer relationships and a better ability to generate currency options transactions”.[4]

[3] Affidavit of Richard Steven Jones affirmed 28 September 2012 at [13].

[4] Affidavit of Gregory Michael Compton affirmed 28 September 2012 at [33].

17.The Applicant returned to work on 10 October 2011. He was advised that there would be a meeting with Mr Jones and Mr Compton the next day. At that meeting he was advised that he had been unsuccessful in his application and was now ‘on redeployment’. The reason given to him, according to his evidence was that he “was not the right business fit”.[5] He was told to go home for the week and think about it.

[5] Affidavit of Simon Patrick Wolfe sworn 10 August 2012 at [73].

18.On 17 October 2011, the Applicant was directed to another floor where he was given no work to do. On 25 November 2011, he received a notice of retrenchment informing him that his employment was terminated from 22 November 2011.

The dismissal

19.In his evidence, Mr Jones stated that his focus in selecting RG over the Applicant was the relative capacity of the two employees to operate in the current financial environment. While he referred to his concerns about the Applicant’s performance, particularly in the April 2011 mid-year performance review (the bank operates on a year which runs from 1 October to 30 September), he expressly stated that he did not take into account the Applicant’s past performance ratings or past bonuses in making his decision.

20.The Applicant submits that the Court should find that there were other reasons, in addition to those given by Mr Jones. This is because the evidence of Mr Jones is contradicted by other evidence including his own evidence. On the criteria Mr Jones says he applied, the Applicant was at least RG’s peer and may well have outperformed him.

21.In paragraph [24] of his Affidavit, Mr Jones states:

My decision was based on the performance of both candidates, including my expectation of their future performance, and was unrelated to Mr Wolfe’s taking leave or his family or career responsibilities. I made notes comparing Mr Wolfe’s and RG’s capabilities.[6]

[6] Affidavit of Richard Steven Jones affirmed 28 September 2012 at [24].

22.The Affidavit then refers to a document ‘RSJ-4’, which is a hand written note by Mr Jones on a diary page with the date 1 March 2011. In his oral evidence, Mr Jones stated that he had been clear that he made those notes in September 2011 although he was “doubting it now”.[7] The note refers to three employees by their initials. The first of these, PTG, had left the FX Institutional Desk by September 2011. Mr Jones agreed that the document was a qualitative ranking of the dealers in which PTG was ranked first, the Applicant second and RG third. The notes do not refer to RG having any superiority in relationships with clients or in the ability to structure transactions tailored to suit clients’ needs. The notes do refer to RG having “good options knowledge and willing to learn”.[8]

[7] Transcript of Proceedings, 21 November 2012, p.207 at line 10.

[8] Affidavit of Richard Steven Jones affirmed 28 September 2012 at annexure “RSJ-4”.

23.The Applicant submits that the evidence as presented does not support the reasoning Mr Jones says he applied in the selection process. If the note was made in September 2011, it suggests that his thinking at the time he made the note does not reflect his thinking at the time he made his Affidavit. There is a contradiction between the written record and what Mr Jones gave in evidence as his reasons.

24.The Applicant submits that if the document was made at an earlier date – and the reference to another employee (“PTG”) who was no longer on the Desk in September suggests that it might – then there is no documentary evidence of Mr Jones’ thinking at the time the decision was made.

25.If the document was generated in March 2011, then it would appear that despite Mr Jones’ criticisms of the Applicant he ranked him more highly at that time than RG, which leaves unexplained the change in his views by September 2011, particularly given that the Applicant was absent from the workplace after 30 May 2011.

26.The Applicant also referred to a document, which sets out the client contact records of both the Applicant and RG between October 2010 and May 2011.[9] By reference to that document the Applicant significantly outperformed RG in the number of calls made and the individual attention paid to clients. Most of the Applicant’s calls are one-on-one visits, often involving other officers of the Respondent and often with senior representatives of the client concerned. The Applicant’s calls display all of the features Mr Jones asked for, while RG’s list is not only shorter, but also involves multiple entries for the same seminar or dinner and is weighted towards entertainment rather than business analysis.

[9] Confidential Exhibit A8.

27.The Applicant submits that if Mr Jones had really turned his mind to the quality of client relationships and nurturing of clients by the Applicant and RG, he could not have reached the conclusion which he says he did.

28.The Applicant also submits that the handwritten notes of Mr Jones of his meetings with the Applicant show that the Applicant was engaged in strategic thinking with respect to his clients.[10] This was admitted by Mr Jones in his oral evidence.[11] By contrast, the Applicant submits the equivalent notes with respect to RG do not disclose the same level of attention and activity.

[10] Confidential Exhibit A7.

[11] Transcript of Proceedings, 21 November 2012, pp. 181, 182, 183, 185, 186 and 187.

29.The Applicant submits that on his own records, if the reasons given by Mr Jones were his only reasons, the material does not support that reasoning.

30.The Applicant further submits that Mr Jones (and Mr Compton) gave emphasis to only one aspect of performance and that was options trading. The bank rated options at between 6% and 7.5% of relative importance in reviewing staff[12] and represented no more than 7% of the group’s revenue.[13] Mr Jones admitted that one particular product might be more appropriate to a particular client’s situation.[14] The Applicant also submitted that Mr Jones had agreed that what measured the bank’s financial success was margin and volume, and how that was achieved, in terms of the product sold, was not relevant.

[12] Exhibit A3.

[13] Transcript of Proceedings, 21 November 2012, p.196.

[14] Transcript of Proceedings, 21 November 2012, p.196.

31.The Applicant submits that having been called on to justify the selection of RG, Mr Jones identified the factors in RG’s performance which could be said to be superior to the Applicant’s and it was then that the question of options acquired such significance. Even in giving options such emphasis he took a very narrow view because historically the Applicant had also performed strongly on the options criterion.[15]

[15] Confidential Exhibit A13.

32.If the emphasis was on performance in the post-Global Financial Crisis climate then the Applicant’s performance in 2009-2010,[16] shows that at a time when none of the New South Wales Institutional FX team met their targets, the Applicant achieved 85% of budget against a group average performance of 70%.

[16] Confidential Exhibit A13.

33.The Applicant submits that reasons were identified to justify the decision to retain RG rather than those reasons forming the real basis for the decision. The decision was made without interviewing the Applicant and without having the opportunity to observe his work for months.

34.Both Mr Jones and Mr Compton placed emphasis on the value of their close proximity to their colleagues and the opportunities it gave them to observe and make judgments about their qualities.

35.In paragraph [8] of his Affidavit, Mr Jones emphasised the value of his closeness to the team, “sitting with the team, I interacted daily with each member as I observed them on the phone with clients…”.[17] Mr Jones was relatively new to management. He admitted that it was a difficult decision. The Applicant put it to him that it was significantly harder to get rid of the man he was sitting next to every day and while Mr Jones did not accede to that proposition the Applicant submits that the Court should accept that the absence of the Applicant from the workforce played a role in the decision made by Mr Jones.

[17] Affidavit of Richard Steven Jones affirmed 28 September 2012 at [8].

36.Mr Compton, for his part, gave evidence that he essentially endorsed and supported the decision made by Mr Jones.[18] While he was able to observe the floor from his office, he had little personal contact with the Applicant and had only two meetings with him, one being the meeting where he was informed of his redundancy. His only other meeting with the Applicant was in 2010, when he interviewed the Applicant for the position in which Mr Jones was the successful candidate. His evidence was that he formed the impression that the Applicant “was unrealistic about his performance”[19] and gave no “indication that he perceived weaknesses or opportunities to improve performance or create opportunities for new business”.[20] On the Applicant’s submission, Mr Compton had no opportunity to correct or improve on that impression.

[18] Affidavit of Gregory Michael Compton affirmed 28 September 2012 at [33].

[19] Affidavit of Gregory Michael Compton affirmed 28 September 2012 at [8].

[20] Affidavit of Gregory Michael Compton affirmed 28 September 2012 at [8].

37.The Applicant submits that when you do not have full plausible explanations for the reasons that were taken into account, you have strong indications that the absence from the workplace on leave was a disadvantage to the Applicant in the process and no steps were taken to ensure that he was treated equally with persons who were not on leave. The Court should consider that the Respondent has not discharged the onus under s.361 of the Act with respect to the selection of RG over the Applicant.

38.The Applicant further submitted that the Respondent failed to follow its own policies with respect to:

·The ANZ Redeployment and Retrenchment Policy (“the Redeployment and Retrenchment Policy”);

·The Employee Information Pack (“the Information Pack”); and

·The Redeployment Kit for Employees (“the Redeployment Kit”).

39.In particular, of relevance to the dismissal, the Applicant submits that the decision was taken before Mr Jones proceeded on leave, before the process was even commenced. The Applicant did not have the opportunity to discuss his background and experience in a ‘preference and selection discussion’. The Respondent also failed to take into consideration the factors set out in the policy (and cl.5 of the ANZ Collective Employment Agreement 2010-2012 [AE882924 PR505089] (“the Collective Agreement”)) in the selection process. Mr Jones admitted as much in his evidence.

40.The Respondent submits that the Applicant’s submissions are misconceived because they essentially go to the fairness of the decision made to retain RG rather than the Applicant. The Respondent submits that the Applicant is inviting the Court to speculate about the subconscious reasons which might have been at play. Those are not factors which can be looked at.

41.There was a relative choice between two employees who, but for the restructure, would have continued in employment. The question is what was Mr Jones’ subjective intention when he made his choice to select RG over the Applicant relative to each other for the available position?

42.Mr Jones says it was a close call. It is a value judgment that he made. He explained why he made it. He says he did so by reference to who was going to be better in the business going forward.[21] He says RG had a stronger relationship with his clients. That is not a statement that the Applicant had a poor relationship with his clients.

[21] Affidavit of Richard Steven Jones affirmed 28 September 2012 at [24].

43.With respect to Confidential Exhibit A8, the Respondent submits that we do not know the relative size of the two employee’s account list. We do know that the Applicant’s budget was much higher than RG’s. The Exhibit shows incidents of RG being involved in ‘face-to-face pitch’ as the description of the contact. There are no such entries in relation to the Applicant. That dovetails with Mr Jones’ evidence in paragraph 13 of his Affidavit about RG being proactive. The Exhibit does not provide any assistance one way or the other in establishing that Mr Jones’ evidence is inaccurate.

44.With respect to Confidential Exhibit A7, it can only be said that they represent notes of a sequence of meetings about a range of clients and updates on the activities of the two employees. Because the documents are undated we do not know the sequence. Further, some of the issues raised by Mr Jones with the Applicant go back to December 2010, well before the issues of leave or family responsibilities were even on the horizon. Mr Jones has not invented new issues. He made a call on those issues and in a close call he preferred RG to the Applicant.

45.It was never put to Mr Jones in cross-examination that his evidence could not be believed and the Applicant does not raise issues of credit in terms of the evidence he gave or of that given by Mr Compton. Minds may differ on whether the right criteria were chosen or whether the right assessment was made against those criteria, but there cannot be a challenge to the evidence that they took the decisions for the reasons given and more importantly they did not take the decision by reason of the leave taken by the Applicant or his family responsibilities.

46.The Applicant’s submission that Mr Jones was influenced by the fact that it might be easier to choose the person who was there rather than the one who was absent, should on the Respondent’s submission be rejected for two reasons. First, it suffers from the defect of trying to ascertain what subconscious factors existed and ascribe to them a prohibited reason. Second, it is not consistent with the objective evidence that Mr Jones found out about the restructure shortly before going on leave. He did not have to sit with RG until he got back from leave on 5 October 2011. Further, neither RG nor the Applicant would have known the outcome until 11 October 2011, the day after the Applicant returned from leave.

47.The Respondent submits that the decision was not made before Mr Jones went on leave. There was a process. The Applicant could have expressed a preference for other positions. There was nothing to suggest that the process was applied unequally or differently as between RG and the Applicant.

48.It was never put to Mr Compton that he was in any way motivated or affected by the fact that the Applicant took leave or had family responsibilities. What was put to Mr Compton, was that there were pressures on the Desk and people were leaving. It was put to him that it took some work to find a replacement for the Applicant while he was away. Mr Compton made it clear that the work required in finding a replacement for the Applicant had taken place before the final authorization of his leave. There was no evidence of any animosity or ill feeling by reason of the Applicant taking leave. There is nothing to indicate any difficulty with the Applicant taking leave or undertaking family responsibilities during that leave. There was no challenge to Mr Compton’s evidence for his reasons in supporting Mr Jones’ decision or to his evidence about what happened in the ‘selection workshop’.

49.On the issue of options trading the Respondent submitted that the fact that it rates options at about 7.5% in its table of performance indicators does not mean that its importance to Mr Jones cannot be accepted. Mr Jones rated options trading as important as part of his desire to find somebody who would proactively generate business for the bank. It may be that Mr Jones emphasized options to a greater level of importance than the Respondent’s ranking process, but that is not the point. His evidence on this was consistent with his own work history having taken a year off from regular trading to develop a strategy for the bank in developing these new sorts of approaches to business.

The failure to be given the opportunity to apply for the position of ‘Director’

50.The Applicant alleges that in making the decision to not give him an opportunity to apply for the position of ‘Director’ and to appoint a new employee to the New South Wales Institutional FX Desk instead of retaining him the Respondent injured him in his employment, altered his position to his detriment and discriminated between him and other employees.

51.The evidence establishes that the decision to upgrade the position and fill it externally was taken by Mr Jones and Mr Compton prior to the restructure being initiated by Mr Collins in August 2011. The evidence was that the candidate who was eventually selected was interviewed by Mr Jones and Mr Compton in late April or early May 2011,[22] although the formal decision to upgrade the position and exempt the position from re-advertising is only recorded as being made on 6 October 2011.[23] Mr Compton’s evidence was that an offer and acceptance, although not in writing, had been made to the candidate in late June subject to agreement on equity valuations.[24]

[22] Affidavit of Gregory Michael Compton affirmed 28 September 2012 at [19].

[23] Transcript of Proceedings, 22 November 2012, p.279, lines 31-32.

[24] Transcript of Proceedings, 22 November 2012, p.279, lines 45-46.

52.Although without a named occupant, the position appears on the new structure in a document which Mr Compton says was generated on 2 September 2011.[25]

[25] Affidavit of Gregory Michael Compton affirmed 28 September 2012 at [17].

53.The Applicant contends that in failing to allow him to apply for the Director’s position the Respondent did not explore all reasonable alternatives for continuing employment (within the terms of the Redeployment and Retrenchment Policy). Further, the Redeployment Kit refers to both the objective of using internal redeployment to fill vacant positions and the commitment to make every reasonable effort to provide employees on redeployment with the opportunity to obtain continuing employment with the organisation.

54.There are several problems with the Applicant’s submission. The process required to upgrade the position and have it exempt from re-advertising is not before the Court, but in any event, it appears that, informally at least, this had already occurred before the restructure was announced.

55.It is also arguable that the position, while not subject to a written contract was not a ‘vacant position’ at the time that the Applicant was a candidate for redeployment on 11 October 2011, as the position had at that time, been “accepted”, according to Confidential Exhibit A5.

The RPO4 ranking and refusal to pay the Applicant a bonus for the year 2011

56.The Respondent had at all relevant times what was referred to in the Applicant’s contract as an ‘Institutional Incentive Plan’.[26] Employees were eligible to participate in the plan which provided an opportunity to earn bonuses. Bonus payments were not guaranteed and generally the calculation of a bonus was based on a combination of job level, relative performance and overall achievement of the Institutional Division’s profit and growth targets and an employee’s contribution to those achievements. Bonus payments, and how they were paid (as cash or shares) was a matter for the discretion of the Board.

[26] Affidavit of Simon Patrick Wolfe sworn 10 August 2012 at annexure “SPW2”.

57.The Applicant had received bonus payments in each year of his employment since at least 1999. In both 2009 and 2010 he had been ranked at the level of RPO2 and earned considerable bonus payments relative to his base salary.[27] The RPO ranking was derived from an employee’s performance relative to their peers across four areas (financial, customer, process and people) as well as standards of behaviour and adherence to the Respondent’s risk compliance and standards.[28] The Applicant had left the FX Desk at the time Mr Jones completed end of the year performance reviews for the team. He recommended that the Applicant be awarded a level RPO4 for the 2011 performance year. This effectively meant that he would not be eligible for a bonus.

[27] Affidavit of Simon Patrick Wolfe sworn 10 August 2012 at [41].

[28] Affidavit of Richard Steven Jones affirmed 28 September 2012 at [38].

58.The Applicant submits that he was effectively excluded from participating in the performance review process because of his absence from the workplace on leave, and later because of the decision to terminate his employment. No adjustment was made to any aspect of the performance plan to reflect his absence from work. The Respondent should have made an allowance for the Applicant’s absence for one-third of the 2011 review year, otherwise the right to take leave is a hollow one.

59.The Applicant submits that the Respondent’s sole justification for the refusal to pay the bonus (and the ranking) is financial performance. The Applicant’s portfolio of clients achieved the highest revenue of any employee in the team in the review period despite his being on leave for four months. To deny that this reflects the Applicant’s work in that and prior years is unreal and unfair.

60.Mr Jones’ assessment dealt only with revenue generated up until the time that the Applicant went on leave,[29] although the evidence was that he assisted in finalising deals with his clients after that date.[30] The Applicant does accept that other people did work on those deals after the Applicant went on leave.

[29] Affidavit of Gregory Michael Compton affirmed 28 September 2012 at annexure “GMC-11”.

[30] Affidavit of Simon Patrick Wolfe sworn 10 August 2012 at [49].

61.By the same token, the Applicant submits that the whole of the annual budget allocated to the Applicant should not be counted as he was not present for four months of that year. The Applicant submits that the figures should not be accepted on face value. The Applicant did better than Mr Jones gives him credit for in the circumstances of a difficult year in which the group as a whole was underperforming and his clients were producing revenue superior to that of any other portfolio of clients in the group.

62.The Applicant submits that the decision to exercise his workplace right to take leave was a direct reason for the decision to rank him at RPO4 because Mr Jones did not deal fairly with the impact of his leave upon his performance against budget and treated him on an unfair basis when compared with his colleagues.

63.The second argument put by the Applicant is that Mr Jones gave the Applicant an RPO4 ranking because he had already determined that his services were not to be retained. That decision had been made for a proscribed reason and therefore the proscribed reason becomes one of the reasons for the RPO4 ranking.

64.The Respondent submits that whatever figures are used the revenue to budget performance of the Applicant’s portfolio in 2011, demonstrates a serious reduction in revenue to budget for his portfolio relative to his previous years of performance. He accepted, in his evidence, that his performance was significantly below his previous years. In previous years, he had met or exceeded his revenue plan. Even with a 70% revenue to budget rating RG only rated RPO3. Whatever way you look at the figures it is clear that RG’s performance, as against budget in the 2011 year was superior to the Applicant’s. At its best the Applicant’s performance shows an actual of 53.93% of budget, and at worst 42% of budget.

65.The Respondent submits that Mr Jones’ reference, “I can slice and dice (the numbers) any which way”,[31] merely reflects that it is possible to select different time frames and to reach different results so long as there is consistency. The emails between Mr Jones and Mr Compton[32] represent an effort to try to ensure that consistency in terms of calculating the numbers to account for the Applicant’s absence.

[31] Transcript of Proceedings 21 November 2012, p.154 at lines 23-24.

[32] Affidavit of Gregory Michael Compton affirmed 28 September 2012 at annexure “GMC-11”.

66.The failure to conduct a face-to-face performance interview occurred while the Applicant was no longer on leave and no longer dealing with family responsibilities. The evidence of Mr Compton was that the RPO4 rating was unrelated to his taking leave and unrelated to family responsibilities.[33] The objective evidence is that the Applicant was well below, on any view of it, the position of RG respective to budget at the end of the year. There is no basis for suggesting that the RPO4 rating was wrong. This is not an appeal from an internal rating process, it is whether or not the rating of the Applicant at RPO4 was adverse action taken for a prohibited reason.

[33] Affidavit of Gregory Michael Compton affirmed 28 September 2012 at [54].

The relevant legislation

67.The Applicant relies on both s.340(1) and s.351(1) of the Act in support of his claim.

68. Section 340(1) of the Act provides:

A person must not take adverse action against another person:

(a)  because the other person:

(i)      has a workplace right; or

(ii)  has, or has not, exercised a workplace right; or

(iii)  proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)  to prevent the exercise of a workplace right by the other person.

69.For the purposes of s.340(1) of the Act, the term ‘workplace right’ is defined in s.341(1) of the Act:

Meaning of workplace right

(1)  A person has a workplace right if the person:

(a)  is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)  is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)  is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee—in relation to his or her employment

70.For the purposes of both s.340(1) and s.351(1) of the Act, the circumstances in which ‘adverse action’ is taken by an employer against an employee is set out in s.342(1) at Item 1. An employer may take adverse action against an employee by dismissing the employee, or by injuring the employee in his or her employment, or by altering the position of the employee to the employee’s prejudice, or by discriminating between the employee and other employees of the employer.

71. Section 351(1) of the Act provides:

An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

72.In essence once the Applicant has established either that he has a workplace right or an attribute covered by s.351(1) of the Act and that he has suffered adverse action, then s.361 of the Act applies.

73. Section 361 of the Act provides:

(1)     If:

(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2)     Subsection (1) does not apply in relation to orders for an                 interim injunction.

74.By virtue of s.360 of the Act a person takes action for a particular reason if the reasons for the action include that reason.

75.There is no dispute in this matter that the Applicant had a workplace right to access his long service and annual leave entitlements or that his substantial purpose in accessing that right was associated with his family or carer responsibilities. Further, there is no dispute that the termination of his employment fell within the definition of adverse action.

76.The Applicant claims adverse action was taken against him by the employer with respect to other actions taken by the employer.

77.I have grouped these according to my view that some of the actions relied upon are the consequences of other actions. Dismissing the Applicant was a direct consequence of the decision to appoint RG to the remaining Associate Director position and in the presentation of the case they were not separated. Likewise the refusal to pay a bonus in 2011 was a direct consequence of the ranking at RPO4 in the 2011 performance year.

78.The decision to appoint a new employee to the team appears to have been argued both as a consequence of the failure to give the Applicant an opportunity to apply for the position and the alleged failure to comply with the provisions of the Redeployment and Retrenchment Policy and the Collective Agreement.

79.The redeployment of the Applicant away from his team, offering him no alternative position and giving him no work was not argued to any extent in the case. The redeployment was clearly a consequence of the decision to appoint RG to the remaining Associate Director position.

80.The Applicant claims that the actions of the employer injured him in his employment, altered his position to his prejudice and discriminated between him and other employees.

81.The terms ‘injures an employee in his or her employment’ and ‘alters the position of the employee to the employee’s prejudice’ were considered by the Court in the context of s.342 of the Act in Qantas Airways Limited v Australian Licensed Aircraft Engineers Association (“QANTAS Airways”).[34] The origins of those expressions, however, go back to Patrick Stevedores Operations No 2 Pty Ltd v MUA (“Patrick Stevedores”).[35]

[34] Qantas Airways Limited v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 at [30] – [32].

[35] Patrick Stevedores Operations No 2 Pty Ltd v MUA (No 3) (1988) 195 CLR 1.

82.   In general it may be stated that:

·The phrase ‘injures the employee in his employment’ extends to any injury of a compensable kind, a legal injury, or an adverse effect on an existing legal right.

·The phrase ‘alters the position of the employee to the employee’s prejudice’ is a broad additional category of adverse action which covers not only legal injury, but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question; and

·A prejudicial alteration to the position of an employee for the purposes of s.342(1) may occur even though the employee suffers no loss or infringement of a legal right; it will occur if the alteration in the employee’s position is real and substantial rather than merely possible or hypothetical.[36]

[36] Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402 at [84].

83.The issue of the meaning of ‘discriminates between employees’ is discussed at some length by Gordon J in her recent decision in Klein v Metropolitan Fire and Emergency Services Board (“Klein”).[37] After examining the High Court decision in Waters v Public Transport Corporation (“Waters”)[38] and Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (“Bendigo Tafe”),[39] her Honour concluded that the provisions of s.342(1) of the Act were not limited to direct discrimination and could encompass ‘indirect discrimination’:

[37] Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402.

[38] Waters v Public Transport Corporation (1991) 173 CLR 349.

[39] Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 290 ALR 647.

It is now recognised that an employer’s particular reason for choosing a “facially neutral” criterion may in fact be its adverse impact on a protected group. In other words, although the employer chose a seemingly innocent or innocuous criterion, the employer did so for a prohibited reason or basis.[40]

[40] Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402 at [102].

84.Giving consideration to those definitions and the Applicant’s contentions I am satisfied of the following:

·The Applicant clearly did not have a legal right to be given the opportunity to apply for the position of Director in his work team. It was not disputed that the Respondent could exempt the position from internal advertising. The decision not to readvertise the position internally was made by Mr Jones and Mr Compton on the basis that they considered there to be no suitable internal candidates. It was Mr Compton’s evidence that the Applicant would not have been considered for the role. The action could not be considered to have altered his position to his prejudice if there was no real or substantial possibility that he could have been successful in obtaining the role. Further, the decision did not discriminate between the Applicant and other employees because no existing employees were given the opportunity to apply for the position.

·The appointment of an external candidate to the role could only therefore have altered his position to his prejudice or injured him in his employment if it was a reasonable alternative to his retrenchment to appoint him to that role. While the external candidate had not taken up the position at the time the Applicant was a candidate for redeployment (on 11 October 2011) it would be different to say that the position was ‘vacant’. Second, while the employer had an obligation to explore all reasonable alternatives for continuing employment, this could hardly include appointment to a position for which both Mr Jones and Mr Compton did not consider the Applicant to be suitable. Further, it is hard to see how the decision to appoint the external candidate could be an action which discriminated between the Applicant and other employees as the external applicant did not become an employee until her appointment and the decision to make that appointment pre-dated the decision to make the Applicant redundant.

85.The ranking of the Applicant at RPO4 with the consequent refusal to pay him a bonus for the 2011 year may have been adverse action on two bases. First, the Applicant had a right to participate in the Performance and Remuneration Review, which was a component for determining the incentive bonus. Second, the outcome of the decision made by Mr Jones and Mr Compton had a direct financial impact on the Applicant. It is not clear on what basis the Applicant says that the ranking and refusal to pay a bonus discriminated between the Applicant and other employees.

86.I can only assume that this is a reference to the fact that other employees who took over the Applicant’s clients gained the benefit of the work he had previously done with them, while he received no credit for either the work he did while on leave or the successful deals which occurred during his absence, but on which he had worked prior to his leave.

87.The redeployment of the Applicant away from his team, the failure to offer him an alternate position or to give him work were a direct consequence of the decision not to offer him the position of Associate Director. It is not clear on what basis the Applicant alleges that independently of that action, the redeployment actions per se injured him in his employment, altered his position to his prejudice or discriminated between him and other employees.

88.I am, therefore, satisfied that the substantive actions to which s.361 of the Act applies are:

·The decision not to appoint the Applicant to the position of Associate Director, which led directly to his dismissal; and

·The decision to rank the Applicant at RPO4, which led to the refusal to pay a bonus in the 2011 performance year.

89.The leading authority on the application of s.361 of the Act is Bendigo Tafe. The Court affirmed that the question of whether a particular action or decision was taken because of a proscribed reason, or for reasons which included a proscribed reason, is a question of fact to be determined on the whole of the evidence. Generally the following principles may be taken to apply:

·The proscribed reason must be a ‘substantial and operative reason’ for taking the adverse action;[41]

[41] Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 290 ALR 647 at [56]; [102]; [127].

·Direct evidence of the decision-makers state of mind, intent or purpose, will bear upon the question of why adverse action was taken;[42]

[42] Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 290 ALR 647 at [44] and [45].

·Direct evidence from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer;[43]

[43] Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 290 ALR 647 at [45].

·Mere declarations by a witness as to his or her ‘mental state’ may not be sufficient to discharge the burden of proof;[44]

[44] Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 290 ALR 647 at [54] and [141].

·Direct evidence of the decision-maker may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence;[45]

[45] Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 290 ALR 647 at [45].

·The test of whether action was taken for a proscribed reason is neither a subjective nor an objective test;[46] and

[46] Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 290 ALR 647 at [126] and [129].

·It is not possible or appropriate to enquire into the ‘unconscious’ state of mind of the decision maker.[47]

[47] Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 290 ALR 647 at [54]; [124]; [134]; and [146].

Was the decision to select RG and dismiss the Applicant made for a prohibited reason?

90.The decision-makers in this matter were Mr Jones and Mr Compton, although it would appear that Mr Compton’s role was limited to endorsing the selection made by Mr Jones.

91.Mr Jones’ evidence of his reasons for preferring RG to the Applicant are essentially contained in paragraph 13 of his Affidavit:

I did not think of [the Applicant] as a poor performer, but, by comparison, I thought other dealers in the FX business were more suited to the more competitive environment [the Respondent] was facing. For example [RG], the other Associate Director on the NSW FX Institutional Sales desk, had stronger relationships with his clients and demonstrated his capacity in identifying and proposing strategic transactions. From my day to day observations of [RG’s] performance on the desk and his discussions with me, I formed the view that [RG] consistently had proactive ideas on the go and because of his strong client relationships he had placed himself well to be able to pitch deal ideas to clients. [RG] also generated more revenue from options transactions, which is the type of transaction we were looking to do more often. For the last three financial years [RG] has contributed the highest proportion of options revenue of all Institutional FX dealers nationally. Throughout my time as head of the desk, I shared my views of [the Applicant’s] performance, as well as the performance of the rest of the members of my team, with [DM], State Director, New South Wales, who was my previous line manager, and [Mr Compton], then Head of Corporate Sales Australia.[48]

[48] Affidavit of Richard Steven Jones affirmed 28 September 2012 at [13].

92.He also expressed the view that in the current economic environment a dealer had to be more proactive and strategic in their relationships with clients and originate deals.[49] In paragraph 15, he refers to his disappointment in February 2011 at the Applicant’s lack of fresh ideas in developing a strategic plan for each of his clients.

[49] Affidavit of Richard Steven Jones affirmed 28 September 2012 at [11].

93.He expressly denied that either the Applicant’s absence from the workplace or his family responsibilities formed any part of his reasoning.

94.There is no doubt, and this is admitted by Mr Jones, that the Applicant took action to address the shortcomings identified to him by Mr Jones, particularly in the context of his mid-year performance review and that this is evidenced by the documentary material.

95.The issue before the Court, is however, not if the decision to select RG was fair or if the process was fair to the Applicant, but whether the decision to select RG was for a prohibited reason.

96.It is clear that Mr Jones made a subjective assessment of the Applicant and RG. He relied on little, if any documentary evidence. He refers to no objective measurements (apart from RG’s revenue from options transactions) and failed to comply with the provisions of cl.5.6 of the Collective Agreement, which required the Respondent to take into account four factors, at least one of which ‘length of service’, he gave no consideration to. The document which he produced to support his comparison of the capabilities of the Applicant and RG does not deal with a number of the matters which he says swayed him in favour of RG and in fact appears to rank the Applicant more highly.

97.While Mr Jones did not have an explanation for this apparent contradiction, the Applicant did not challenge that Mr Jones had the views about RG, which he says tipped the balance in his favour in what was a close decision. It is not apparent that Mr Jones’ views, as expressed in his evidence, are so completely irrational as to suggest that they could not be the conclusions which he reached about the relative merits of the Applicant and RG.

98.Even if, as the Applicant submits, the reasons were identified to justify the retention of RG, that does not necessarily lead to the conclusion that the preference for RG was motivated by rejection of the Applicant for a prohibited reason.

99.The selection process was not transparent, there was no adherence to the Collective Agreement and it is likely that the preference expressed by Mr Jones for RG prior to the beginning of any formal process meant that his retention rather than the retention of the Applicant was a foregone conclusion. That may render the failure to select the Applicant unfair, but it does not mean that it was for a prohibited reason.

100.Research suggests that in the absence of objective criteria, a person will select for appointment the candidate who is most ‘like’ them. Mr Jones had worked with RG on a project to identify strategic business directions for the FX Institutional group. He placed a great emphasis (perhaps more than the Respondent itself) on the role of options trading at which RG had also shown a capacity and interest. His evidence identified RG as having strengths which he considered to be a good fit for the business into the future.

101.There was nothing in his evidence to suggest that the absence of the Applicant from the workplace while on leave to care for his children was a reason for the decision. While a blank denial, in and of itself, is not sufficient, that denial, which was not seriously challenged, coupled with reasons which are not irrational or unbelievable must carry weight.

102.The standard of proof required is the civil standard, on the balance of probabilities, therefore, was the alleged proscribed reason, an operative reason for the failure to select the Applicant for the Associate Director position, which led to his subsequent dismissal?

103.The evidence of Mr Jones was essentially unshaken, as was that of Mr Compton. There was no suggestion that these witnesses were untruthful. At its highest the Applicant contended that the Court was not being given all of the reasons and, therefore, an inference should be drawn that a reason was either or both of the alleged prohibited reasons. There is nothing, however, to support the drawing of such an inference. While Mr Compton and Mr Jones were required to make arrangements to have the Applicant’s work covered while he was on leave, there was no evidence of any animosity towards him or of an adverse impact on the business caused by his absence.

104.If there were other reasons for the decision, then I am satisfied that they were not conscious reasons or ones which could be attributed either to the Applicant’s decision to take leave or to his need to do so for reasons of family responsibilities.

105.With respect to the decision to rank the Applicant at RPO4 and to consequently refuse to pay him a bonus for the year 2011, the question arises as to whether, independently of the decision to terminate his employment, it can be said that that decision was for a prohibited reason.

106.There was little evidence about the basis upon which the decision to rank the Applicant at RPO4 was made. There is evidence with respect to the Applicant’s performance in previous years and his 2008 ‘Institutional Performance and Development Review’[50] clearly sets out the criteria and results applied which led to the bonus payment he received. There was no such review process conducted with the Applicant in 2011. There is evidence of the mid-year review conducted by Mr Jones in April 2011, which shows that in terms of revenue, the Applicant was significantly below target at that time.

[50] Exhibit A3.

107.The Confidential Exhibit A13, which shows the comparative performance of employees during the years 2008-2009; 2009-2010; and 2010-2011 records the Applicant as being the second best performer in 2008-2009; the best performer in 2009-2010 and the worst performer in 2010-2011 with respect to revenue as against target for the Sydney Institutional FX team. These figures, however, are skewed by the Applicant’s absence for a period of four months. Further, Confidential Exhibit A9 shows that the revenue from the Applicant’s accounts was running at 96% of target while he was on long service leave.

108.The only evidence of the decision-making process which led to the decision to rank the Applicant at RPO4 is contained in an exchange of emails between Mr Jones and Mr Compton on 11 and 12 October 2011. This shows that two attempts were made by Mr Jones to allocate revenue and budget to the Applicant and which involved “reapportion[ing of the Applicant’s] revenue and budget”.[51] The figures as relied upon by Mr Jones and Mr Compton in making the assessment has the Applicant at 42% of budget. RG who is the next lowest in terms of revenue and budget was at 72% of budget. He received a ranking of RPO3 and a bonus. The amount of the bonus was significantly less that that received by the Applicant in previous years.

[51] Affidavit of Gregory Michael Compton affirmed 28 September 2012 at annexure “GMC-11”.

109.There is no doubt that the Applicant was placed at a disadvantage with respect to the meeting of revenue targets by his absence from the workplace for four months. It would appear that his portfolio performed significantly better in the second half of the year and he received no recognition in the assessment process of the contribution he made to that success. It cannot be denied, however, that as at the time of his mid-year assessment he was significantly behind target (47% of budget). It would be speculative to attempt to assess what difference his presence in the workplace might have made to the final results.

110.I am satisfied that in reaching the decision to rank the Applicant at RPO4, his absence from the workplace was a factor. Even if he was afforded, however, credit for some of the performance of his portfolio in his absence it is not at all clear that the outcome would have brought him up to the level to obtain a ranking of RPO3 or RPO2.

111.In addition, the RPO ranking is based not only on the relative performance of an employee by comparison with their peers, but also “standards of behaviour and adherence to [the Respondent’s] risk compliance and standards”.[52]

[52] Affidavit of Gregory Michael Compton affirmed 28 September 2012 at [50].

112.If the Court were to revisit the Applicant’s ranking it could not fail to take into account the Applicant’s admissions with respect to his actions in emailing confidential bank documents to his home email address. While it is not appropriate for the Court to speculate as to whether that misconduct would have lead to his dismissal it would clearly, in my view disqualify him from receiving a performance bonus.

Ancillary Issues

113.The Applicant raises two issues which are ancillary to the general claim and which are contingent upon the success of the Applicant in the substantive claim. One relates to the Applicant’s entitlement to 843 shares which would have vested had his employment continued. A total of 303 shares vested on his retrenchment, but the remainder would have vested had he remained employed by the Respondent until November 2013.

114.On the basis of the decision I have come to with relation to the substantive issue of the dismissal, it is not necessary for me to determine the issue of the capacity of the Court under s.545(1) of the Act to order that the Respondent reinstate the Applicant’s entitlement to 540 shares.

115.The second issue relates to the payment in lieu of notice made to the Applicant. The Applicant submits that under s.117(2) of the Act, payment in lieu of notice is to be at the employee’s “full rate of pay”. Section 18(1) of the Act defines “full rate of pay” to include, “(a) incentive-based payments and bonuses”.

116.The Applicant was paid a payment in lieu of notice based only on his salary without regard to either short or long-term bonuses. The Applicant contends that his full rate of pay includes the entitlement to such bonuses and the Respondent was obliged to include the value of that entitlement in calculating his ‘full rate of pay’ for the purpose of s.117(2) of the Act.

117.The Respondent argued two matters in response. First, that the reference in s.117(2) of the Act to “full rate of pay” is to the amount the employer would have been liable to pay the employee for the hours the employee would have worked had the employment continued until the end of the minimum notice period. As the Applicant was not entitled to a bonus in 2011, his “full rate of pay” for that period would not have included any allowance for a bonus.

118.Second, the Respondent contends that the Applicant’s entitlement to payment in lieu of notice derives from the Collective Agreement[53] and not from s.117(2) of the Act. The Collective Agreement specifies that any payments made in lieu of notice will be calculated on “your Salary or TEC Salary as applicable”.[54]

[53] Exhibit A14.

[54] Exhibit A13: Clause 5.7, ‘ANZ Collective Employment Agreement 2010-2012’.

119.The provision of the Collective Agreement relied upon by the Respondent with respect to the second point says:

Clause 5.7 Notice of Retrenchment

At the conclusion of the redeployment period, ANZ will give you as much notice of retrenchment as possible. At a minimum, you will be provided with 6 weeks’ notice. If, in certain circumstances, ANZ is not able to provide you with 6 weeks of actual notice, you will be provided with pay in lieu of the unworked notice period when your employment ends.

Subject to the NES, any payment made to you in lieu of notice will be calculated on the basis of your Salary or TEC Salary as applicable.

You are entitled to up to 1 paid day off each week during the notice period if you request it for the purpose of looking for a new job outside of ANZ. Payment for these days will be based on your Hourly Rate.

Payment of any redundancy benefits is conditional on you continuing to perform your duties as required until the end of the notice period. However, if you secure a new job outside ANZ during the notice period, you can request to leave prior to the expiry of the notice period and ANZ will not unreasonably withhold its consent. If ANZ consents to your early release, you will be entitled to the redundancy benefits set out in clauses 5.9(a) and 5.9(b) calculated to the date your employment with ANZ ends but you will not receive any payment in lieu of the unworked period of notice.[55]

[55] Exhibit A13: ‘ANZ Collective Employment Agreement 2010-2012’.

120.The provisions of cl.5.7 of the Collective Agreement provides for a longer minimum notice period than that provided for by s.117(3) of the Act, however, the basis on which the payment in lieu of notice is calculated is expressly stated to be “subject to the National Employment Standards (“NES”)”. Section 117(2)(b) of the Act clearly provides for the payment to be calculated on the basis of the ‘full rate of pay’, which by virtue of s.18 of the Act includes, “incentive based payments and bonuses”.

121.The ‘full rate of pay’, however, is expressed in terms of the rate applicable to the hours the employee would have worked had the employment continued until the end of the minimum notice period. Past bonuses earned by the Applicant are clearly irrelevant in the calculation of that amount. Any amount could only include a bonus payable to the Applicant after 30 September 2011. For the reasons already given, I am satisfied that no such amount was payable.

Conclusions

122.The Applicant was unfortunately the victim of a restructuring exercise, which brought to an end a comparatively long career with the Respondent. There are criticisms which could be made of the way the Respondent dealt with the restructuring exercise, the lack of transparency, the substantially subjective nature of the selection and the failure to give appropriate weight in the performance assessment process to the Applicant’s legitimate absence from work due to family responsibilities.

123.However, it is not the role of the Court to review the fairness of the decision or the process. It can only consider if adverse action was taken against the Applicant for a prohibited reason and if so, what remedy should be applied.

124.For the reasons I have given I am satisfied that the Respondent has discharged the onus imposed by s.361 of the Act with respect to the decision to dismiss the Applicant. In relation to the RPO ranking and failure to pay a bonus I am not satisfied that on the criteria before the Court the Applicant would have received a bonus for the year 2011, even if his absence from the workplace had not been a factor in the assessment made.

125.For these reasons the application must be dismissed.

I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Whelan FM

Date:  7 February 2013