[2016] FWC 4953

The attached document replaces the document previously issued with the above code on 27 July 2016.

An error has been corrected in paragraph 80.

Associate to Commissioner Roe

Dated 29 July 2016

[2016] FWC 4953
FAIR WORK COMMISSION

DECISION


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

Dr Petranel Ferrao
v
Peter MacCallum Cancer Institute
(U2016/4554)

COMMISSIONER ROE

MELBOURNE, 27 JULY 2016

Application for relief from unfair dismissal – genuine redundancy.

[1] Dr Ferrao was employed as a Senior Research Officer by the Peter MacCallum Cancer Institute (Peter MacCallum) from January 2007 until her dismissal for reasons of redundancy effective 22 January 2016. She was employed in other roles by Peter MacCallum from June 2005 until January 2007.

[2] Peter MacCallum argues that the dismissal was a genuine redundancy and therefore Dr Ferrao is not protected from unfair dismissal. I am satisfied and it is not disputed that the other preconditions for protection from unfair dismissal are met including that:

[3] Peter MacCallum is a large employer with sophisticated human resources capacity.

[4] Dr Ferrao’s employment was covered by the Victorian Public Health Sector (Health Professionals, Health and Allied Services, Managers & Administrative Officers) Enterprise Agreement 2011-2015. The Agreement includes a consultation term (Clause 18).

[5] That term is in standard terms and requires discussion about reasons for the proposed redundancy and consideration of measures to avert or mitigate redundancy. It also provides that the employer must give the employee written information about the proposed change including the reasons for the change and its impact. The information must be provided and the discussions must occur as soon as practicable after the decision has been made.

[6] There were no issues about Dr Ferrao’s conduct or performance.

[7] The question to be determined in this matter is whether or not the dismissal was a genuine redundancy. If the answer to the question is yes then the application must be dismissed. If the answer to the question is no then the factors in Section 387 of the Act must be considered to determine if the dismissal was unfair. If the dismissal was unfair then the question of remedy must be considered.

[8] For the dismissal to be a genuine redundancy the three conditions in Section 389 of the Act need to be satisfied:

The evidence concerning the redundancy

[9] It is not disputed that Dr Ferrao’s role involved work on specific grant funded research projects. In the three years leading up to the redundancy Dr Ferrao’s role was to lead a grant-funded project relating to resistance to BRAF inhibitors induced by RTKs (the BRAF project). A significant part of the work of the Molecular Oncology Laboratory led by Professor McArthur relates to BRAF inhibitors. The work on resistance to BRAF inhibitors induced by RTKs is a specific and distinct line of research within the general field of work on BRAF inhibitors. The grant funding came from the National Health and Medical Research Council (NHMRC). Dr Ferrao worked in the Molecular Oncology Laboratory. There were two or three Senior Research Officers working in the laboratory on various projects together with a number of other research staff and higher degree students.

[10] Dr Ferrao had worked and continued to have involvement in a number of other research projects and publications but her salary was claimed against the BRAF project and it was her primary work over the three year period of the project 2013-2015.

[11] The NHMRC grant funding agreement was for a specific budget “over a period of three years” commencing 1 January 2013. Dr Ferrao was listed as the Chief Investigator. 1

[12] It is not disputed that the redundancy of Dr Ferrao resulted in a decrease in the number of Senior Research Officers working in the Molecular Oncology Laboratory by one. Since her dismissal no one has been working in the Molecular Oncology Laboratory on the BRAF Project, except to the extent that a PhD student is utilising this work to complete her course requirements.

[13] In November 2013 Peter MacCallum was successful in obtaining a Program Grant to commence 1 January 2015 for a period of five years. The Program Grant supports research in “Oncogenic Signalling and Cancer Therapy.” A Program Grant is distinguishable from a Project Grant in that the Program Grant enables research across several teams rather than on a single project.

[14] It is accepted that there was a meeting between the Head of the Molecular Oncology Laboratory, Professor Grant McArthur and Dr Ferrao on 15 April 2014. Professor McArthur sent an email on 16 April 2014:

[15] Professor McArthur says that in March 2014 he was considering the value of continuing research in the BRAF Project area as he considered it to be less high impact as the area had become relatively well researched and he judged it was an area where it was more difficult to compete for ongoing funding. He says that he decided to shift the focus of research to other high impact areas and not to continue the BRAF Project research past its scheduled conclusion date of 31 December 2015. He says that a similar decision was taken about another project grant area.

[16] Dr Ferrao denies that she was told that BRAF project research would be a lower priority for Professor McArthur and the laboratory in the future at the 16 April 2014 meeting.

[17] Professor McArthur gave evidence that his reference to a new 3 year grant in the 15 April 2014 meeting and subsequent note was on the understanding that the work under any new grant would be in a different laboratory. Having considered the evidence of both Professor McArthur and Dr Ferrao I am satisfied that this is consistent with the plan to move to an independent position. I am satisfied that both Dr Ferrao and Professor McArthur understood that moving to an independent position meant not conducting the research under Professor McArthur’s supervision in his laboratory. I am satisfied that the mutual understanding of Dr Ferrao and Professor McArthur was that moving to an independent position would be a career development for Dr Ferrao. However, I am also satisfied that Professor McArthur also communicated a message that he was not wanting the BRAF project research to continue in his laboratory beyond the current project timeline.

[18] It is accepted that there was a further meeting between Dr Ferrao and Professor McArthur on 16 December 2014. Professor McArthur says that he told Dr Ferrao that the Institute would not be seeking additional funding for the BRAF project research and that it would cease as scheduled on 31 December 2015. He says that he specifically said that this would mean that her position would be redundant. He says that he encouraged Dr Ferrao to consider another sponsor organisation. He says that she said that she would prefer to move to another organisation in 2016 to continue her research in the BRAF area.

[19] In her second witness statement Dr Ferrao does not contest the accuracy of Professor McArthur’s account other than to point out that an application for an extension to the BRAF project was submitted in March 2015 and was supported by Professor McArthur. Nothing in the proceedings added significantly to this evidence. The application was not successful and this was known in the week of 23 October 2015. Professor McArthur gave evidence that he supported the March 2015 grant application because if research projects are to continue the application has to be made with a long lead time before their expiry date due to the period of time it takes to achieve approval. He gave evidence that it was common to support a project grant in an area in the expectation that if the grant application was successful the project would be transferred to another sponsoring institution. Given that the work in this area was no longer a priority for his laboratory he considered it appropriate to support the future career of Dr Ferrao and research in the area by supporting the grant application in the expectation that another sponsoring institution would be found.

[20] I accept this evidence of Professor McArthur and note that it is consistent with his evidence concerning the meeting of 16 April 2014. I am satisfied that Professor McArthur communicated a message that he was not wanting the BRAF project research to continue in his laboratory beyond the current project timeline. This was reinforcing the message which had been given in April 2014.

[21] Professor McArthur concedes that he might not have explicitly used the words “not consistent with the strategic direction” of the laboratory in the discussions with Dr Ferrao. However, I am satisfied that the discussions in April and December 2014 clearly communicated to Dr Ferrao that she was being encouraged to move to an independent position, that is; a position outside Professor McArthur’s laboratory. I am satisfied that there were two messages in this communication: first, a message of encouragement concerning the future career development of Dr Ferrao; and second, a message that if Dr Ferrao wished to pursue the BRAF project research, as she clearly indicated she wished to do, then it would need to be outside of Professor McArthur’s laboratory and probably in another institution. I am satisfied that Professor McArthur communicated the message that continuing the BRAF project work in his laboratory after the end of the current project was not something he supported.

[22] Dr Ferrao gave evidence of various incidents where she did not feel her work was well supported by Professor McArthur. Professor McArthur denies any lack of support but to the extent that this was perceived by Dr Ferrao I consider this supports my conclusion that Dr Ferrao was aware that Professor McArthur was not supportive of the BRAF project work continuing in the laboratory.

[23] It is accepted that on 27 May 2015 at a further meeting between Dr Ferrao and Professor McArthur, Dr Ferrao was advised of the redundancy of the position on 31 December 2015. Professor McArthur advised that grant funds had been allocated to allow for the redundancy and this was demonstrated by a proposed budget. Shortly after the meeting Professor McArthur clarified that the redundancy payment would be made but those payments would not be funded directly from the grant funds. Dr Ferrao says that she expressed her preference to transfer to another institution so that the remaining funds could be used for research. Dr Ferrao did not consider that project funds should be used to fund redundancy.

[24] I am satisfied that Dr Ferrao was aware on 27 May 2015 that her position would be made redundant on 31 December 2015. I am also satisfied that in respect to any funds which may be outstanding as at 31 December 2015 the preference as at May 2015 of both parties was to transfer them to be administered by another institution. I am satisfied that in considering whether or not the redundancy was genuine this is the relevant consideration notwithstanding that there was disagreement between the parties about the likely quantum of the remaining funds.

[25] I am satisfied that Dr Ferrao was not told at the 27 May 2015 meeting that the redundancy was because of changed strategic direction in the laboratory. However, I am satisfied that Dr Ferrao should reasonably have understood from the context and from earlier meetings that Professor McArthur did not wish to continue the BRAF project work in the laboratory. I am satisfied that when the head of the laboratory communicated this message he was effectively communicating that the BRAF project work is no longer a strategic priority for research in the laboratory.

[26] There were further meetings on 1 September and 15 September 2015.

[27] It is agreed that at the 1 September 2015 meeting Professor McArthur said that the proposal by Dr Ferrao for fellowship funding to the Victorian Cancer Agency to continue research in the BRAF project area and other matters would not be administered by Peter MacCallum Institute. What is in dispute is the reason why the Institute would not administer the proposed project. Professor McArthur says that he made it clear that it was because the BRAF project research area was being discontinued within the Institute. Dr Ferrao says that this evidence should not be accepted because there are still projects in the BRAF project area. Dr Ferrao also says that Professor McArthur said that the Institute planned to make an application to the Victorian Cancer Agency next year for research in another area and that VCA would be unlikely to fund two years in a row. Dr Ferrao suggests that this was the reason why her funding proposal was not supported. Dr Ferrao also says that at the meeting on 1 September 2015 Professor McArthur said that Dr Ferrao would not be included in the Molecular Oncology Laboratory after the end of 2015 and there would be no further support for Dr Ferrao by him for any funding applications on any research project.

[28] The 15 September 2015 meeting was attended by Professor McArthur, Dr Ginns and Dr Sberna. Dr Ginns gave evidence consistent with that of Professor McArthur. They gave evidence that Dr Ferrao was told that research focus had changed and further funding for the BRAF project would not be sought. If Dr Ferrao wished to use the surplus funds after 31 December 2015 there were two options. Either get another administering organisation or seek a short extension with the Institute as the administrator. The latter option would only be possible if a Research Plan and Budget was provided quickly. They say that Dr Ferrao expressed a preference for finding a new organisation. An email dated 16 September 2015 was sent by Professor McArthur to Dr Ferrao concerning the outcome of the 15 September 2015 meeting. That email stated that a Research Plan and Budget needed to be received by 23 September 2015 if Dr Ferrao wanted the Institute to administer any proposed short extension of the BRAF project.

[29] Dr Ferrao emailed Professor McArthur on 23 September 2015. She confirmed that she was advised of the redundancy on 27 May 2015 effective 31 December 2015. She also confirmed that the Institute would not support further grant applications. In respect to the remaining funds she noted that her redundancy payout was no longer to be a charge against them. She said that she wanted to apply for an extension of the grant to ensure that the funds were used to complete the project in 2016. In response Professor McArthur reiterated on 24 September 2015 that a research plan and budget were required for any extension application to be administered by the Institute and said that it had to be provided by 28 September 2015. On 1 October 2015 Professor McArthur emailed that “as you have not provided a research plan and budget despite two requests are we to understand that you do not wish Peter MacCallum to apply for an extension of your NHMRC grant.” In response Dr Ferrao wrote on the same day: “you will appreciate that this is an important step for my future in research and I am evaluating all options available, being aware of your preference not to include me as part of your lab after December 2015.” This response of Dr Ferrao reinforces my conclusion that Dr Ferrao was aware that the application for further BRAF project funding made in March 2015, to which I referred earlier, was supported by Professor McArthur on the basis that if successful the grant would be transferred to another institution.

[30] I am satisfied that the evidence concerning the meetings and correspondence in September 2015 demonstrate that it was clearly communicated to Dr Ferrao that the Institute did not wish to continue with the BRAF project beyond 31 December 2015. The Institute was prepared to support an application for a short extension to utilise surplus funds but only if a research plan and budget were provided and approved within a specified time frame. Dr Ferrao did not comply with that time frame despite extensions. The Institute therefore did not support an application for a grant extension to utilise surplus funds. Therefore, I am satisfied that there was nothing in the events of September 2015 which altered the clear position advised in May 2015 that Dr Ferrao’s position would be made redundant from 31 December 2015.

[31] There was a further meeting and letter provided on 23 October 2015. The letter stated that redundancy would be occurring from 22 January 2016 unless redeployment was achieved. The letter stated that every effort would be made to find suitable alternative position during the 13 week redeployment period.

[32] There were some differences between Dr Ferrao and the Institute about deductions from the project funds. I accept the evidence of Professor McArthur and of Alicia Goddard that these differences had nothing to do with the redundancy process. The redundancy was foreshadowed prior to these issues arising. Professor McArthur denies that the issue of redundancy funds was the subject of dispute at the meeting in May 2015. Professor McArthur gave evidence that from as early as April 2014 he encouraged Dr Ferrao to arrange for another host organisation to continue administration of BRAF project funding. Professor McArthur denies that he was responsible for the allocation of particular items to cost centres.

[33] On 15 December 2015 Dr Ferrao received advice that she had been granted a 12 month extension to the NHMRC BRAF project. Professor McArthur gave evidence, which I accept, that nobody at the Institute authorised this application to be made. The correspondence in the period from 15 September to 23 October 2015 clearly establishes that Professor McArthur’s consistent position was that any application for short term funding extension to be administered by the Institute would require Dr Ferrao to submit a research plan and budget to Professor McArthur for approval. This did not occur and I am satisfied that there was no change of position by the Institute and that Dr Ferrao was aware of that situation. I accept that Dr Ferrao objected to this position and did not consider that research plan and budget was necessary given that the project was unchanged. However, this does not alter the fact that Professor McArthur required this information and considered that it was required by Institute procedures.

[34] I am satisfied that Dr Ferrao was aware that the Institute did not support the extension grant specifying the Institute as the administrator being made by Dr Ferrao in October 2015. I therefore do not accept the submission on behalf of Dr Ferrao that the approval of the grant demonstrates that there is no basis for a conclusion that at the time of the dismissal the Institute no longer required the position to be performed because the BRAF project was coming to a conclusion. The BRAF project was approved for a three year period ending 31 December 2015. I accept the evidence of Professor McArthur that there is no further obligation in respect to the BRAF project. 3 I accept that it is a matter for the Institute to determine, based upon its priorities, whether or not to apply to utilise the surplus funds remaining after 31 December 2015. The evidence is clear that the Institute decided not to apply to utilise the surplus funds. The unauthorised actions of Dr Ferrao cannot change that fact.

[35] Dr Ferrao accepted that surplus funds could not be accessed without a further grant application being made and approved by NHMRC. She recognised that she needed the support of an administering institution: “...without the appointment at an administering institution I’m not able to seek further funding for any project – not just the BRAF project, any project.” 4

[36] The fact that an employer could access funding for a position does not mean that it is obliged to seek or accept that funding. I accept the evidence of Professor McArthur that the Institute has to make decisions about what are the priorities for its research and apply for funding consistent with those priorities.

[37] Dr Ferrao submits that the first time she was told that the redundancy was because the research areas was not in line with the strategic direction of the Molecular Oncology Laboratory or Peter MacCallum was in a letter of 12 January 2016 from the Acting Chief Executive. I do not consider this position to be sustainable. I am satisfied that although the words “strategic direction” may not have been used, the fact that Professor McArthur did not consider continuing BRAF project work in his laboratory to be a priority beyond the end of 2015 was repeatedly communicated over the period from April 2014 until the redundancy was advised in October 2015. Although the redundancy letter of 23 October 2015 links the redundancy to the end of the project funding, it is indisputable that the issue of the unspent funds was the subject to extensive discussion in the period prior to that date. It was clearly understood that any project extension would be administered by another institution and would not affect the need for a redundancy.

[38] Dr Ferrao states that she was subject to coercion to sign a deed of release and a resignation. This is denied by Ms Goddard and Dr Ginns. I am satisfied that standard forms were provided to Dr Ferrao but there is no evidence of any coercion.

[39] There is conflict in the evidence concerning whether or not BRAF project research is continuing at the Institute. Dr Ferrao gave evidence that the main program grant included BRAF work but she was excluded from it. I accept that there are some references to BRAF in the approved funding programs of the Institute. 5 However, I accept the evidence of Professor McArthur that BRAF project work is no longer a significant focus of any of the programs or projects in his laboratory. In his second witness statement Professor McArthur says “the Respondent has not continued with any BRAF project research in any way other than by supporting the completion of Ms Li’s PhD through the University of Melbourne.”6 I consider that Professor McArthur is in the best position to know what research is being supported and conducted within the laboratory of which he is the head. I accept his evidence. Dr Ferrao gave evidence that Professor McArthur has utilised and publicised the work done by Dr Ferrao in recent presentations.7 I consider that this demonstrates that the work of Dr Ferrao continues to be valued by the Institute and Professor McArthur. However, it is not evidence of ongoing research activity in the area other than the work of the PhD student.

[40] Dr Ferrao believes that Professor McArthur has on occasion undermined her role and failed to provide her with adequate support and recognition. The implication is that Professor McArthur has been trying to force her out of the Institute. Dr Ferrao gives evidence of incidents which she says support her belief. Professor McArthur on the other hand strenuously denies these allegations. He gives evidence of support and recognition that he has provided to Dr Ferrao. I accept that the relationship between Dr Ferrao and Professor McArthur deteriorated over the last eighteen months of the project. There is no doubt that Dr Ferrao was aggrieved by Professor McArthur’s failure to enthusiastically support Institute sponsorship of further research grants in the BRAF project area. However, I am satisfied that by his actions Professor McArthur clearly communicated to Dr Ferrao his view that further work in the BRAF project area was not a high priority for the Institute and that if Dr Ferrao wished to continue to pursue her work in this area she needed to develop her own independent standing as a researcher and links with other institutions. I am satisfied that Dr Ferrao understood that this was Professor McArthur’s position from the email of 16 April 2014 onwards.

[41] Commonly assessments management makes about the strengths and weaknesses of employees will influence their decisions about operational change and restructuring. Employees will often feel, with some justification, that a restructure is simply targeted at removing particular individuals. When a research institution dependent upon grants makes a decision to reduce the priority it gives to a certain area of research, that decision will have a direct impact on an individual or a small number of individuals who work in that area of research. It is inevitable that that individual(s) will feel that the decision to reduce priority is targeted at them personally. A redundancy will be a sham and not genuine where it is targeted to remove an individual and there is no real change or no real organisational rationale.

[42] Professor McArthur has provided an evidence based rationale for the decision to reduce the priority on BRAF Project research. He has pointed to particular publications and recent research by others in the area. I accept that there is an operational rationale for the decision. Even if the decision was influenced by his views of the strengths and weaknesses of Dr Ferrao, I am not satisfied that this is sufficient to conclude that the redundancy was not for genuine operational reasons.

Conclusion concerning whether Peter MacCallum no longer required Dr Ferrao’s job to be performed by anyone because of changes in the operational requirements of the enterprise.

[43] It is a fact that Peter MacCallum no longer requires the job to be performed by anyone. No one is doing the BRAF Project work performed by Dr Ferrao over the previous three years. The number of Senior Research Officers employed was reduced by one when Dr Ferrao was dismissed. For the reasons discussed earlier I am satisfied that work does not continue in the BRAF Project area other than to support for the PhD student to complete her course. Dr Ferrao understood that her salary was supported by the BRAF Project grant which was for a period of three years. 8

[44] I accept that consistent language has not been used by the employer to explain the changes in operational requirements which led to the dismissal. However, the absence of consistent language does not demonstrate that the reasons are a sham or a conspiracy to remove Dr Ferrao. The various explanations given during the period since April 2014 as to why Dr Ferrao’s work in the BRAF Project area was likely to come to an end at the end of 2015 have sufficient commonality. There is a direct link between the agreement that Dr Ferrao should move to a more independent position, the end of the three year funded project, the decisions of Professor McArthur not to support particular new grant applications in the area argued for by Dr Ferrao, Professor McArthur’s view that the BRAF Project area was no longer a priority for future work of the laboratory, and the work not being in line with the strategic priorities for the laboratory. The following messages were consistently communicated to Dr Ferrao: the project is coming to an end, the employer does not support continuing the project within the laboratory, the employer refuses to support applications for other research in the area, and you will be made redundant unless you are redeployed to another area. This sends a clear message to an intelligent person that there have been changes to research priorities.

[45] I am satisfied that although consistent language was not used there was a consistent message which was that the operational requirements of the laboratory headed by Professor McArthur were changing and that continuation of the BRAF Project beyond December 2015 was no longer one of those priorities and that as a consequence the position occupied by Dr Ferrao would no longer be required to be performed by anyone.

[46] I am satisfied that a decision by the head of a research laboratory to change the priorities for future research areas and funding is in this context a change in the operational requirements of the enterprise.

[47] It is of course not uncommon for employers to restructure in part to remove particular employees. In other words one of the motivations for reducing work in a particular field might be to remove a particular employee. In this case there is objective evidence that the employer celebrated the work of the applicant and although there may have been some tensions there is no evidence of dysfunctional relationships prior to the controversy about reducing the priority for work in the area. The management decisions about who to include in particular project teams did create some tensions but they were not particularly out of the ordinary. I accept that one of the motivations for changing priorities might have been the relationship between Professor McArthur and Dr Ferrao, however, I am not satisfied that this was the driving force. I am not satisfied that the changed operational requirements were a sham manufactured to undermine or remove Dr Ferrao.

Did Peter MacCallum comply with the obligations under the Agreement to consult about the redundancy?

[48] The consultation term in the Agreement provides as follows:

[49] It is accepted that the proposed redundancy of Dr Ferrao is a significant change which requires consultation in accordance with the clause.

[50] I am satisfied that regard should be had to consultation which occurs about a proposed change prior to the definite decision being made. This is consistent with the intent of the provision which is to give employees sufficient notice and information and a capacity to influence the decision maker.

[51] I am satisfied that during the period from April 2014 until 23 October 2015 there were a number of meetings and written communications which gave Dr Ferrao information about the proposed change which would likely make her position redundant.

[52] I am also satisfied that the definite decision to make the position redundant was made and communicated in writing on 23 October 2015. The letter of 23 October 2015 is relied upon as the written advice in accordance with Clause 18.2.3. 9

[53] The question of whether Peter MacCallum has met its consultation obligations must not be answered by reference solely to the period following the decision reflected in the 23 October 2015 letter.

[54] Dr Ferrao accepts that clear and written notice of the likely redundancy was given on 27 May 2015. 10

[55] As discussed earlier there were a number of meetings about what would happen to Dr Ferrao after the end of the three year project on 31 December 2015. Those meetings began in April 2014 and they included meetings on 16 December 2014, 27 May 2015, 1 September 2015, 15 September 2015 and 23 October 2015.

[56] I am satisfied that in those meetings various options about alternatives to redundancy and/or mitigating the impact on Dr Ferrao of redundancy were discussed and considered. The option of being supported by the Institute to obtain support from another institution for further research in the BRAF project area was repeatedly discussed. The option of the institution applying for further funds to be administered by Peter MacCallum was proposed by Dr Ferrao on a number of occasions and was considered by Professor McArthur but rejected. The option of applying for a further grant which would be transferred to another institution if successful was considered and supported in March 2015. That application was unsuccessful. In September 2015 the option of applying for short term funding to continue the project and use surplus funds was considered and accepted as an option by Professor McArthur subject to the provision of appropriate documentation within a specified time frame. Extension of that time frame was granted.

[57] The proposed change, the non-continuation of the BRAF Project within Peter MacCallum, was notified to Dr Ferrao more than 12 months in advance. The likely effect of the change was advised to Dr Ferrao, namely that she would need to either move to another institution or seek redeployment. Measures to avert or mitigate the impact of the proposed change were discussed. Dr Ferrao sought that the decision be reversed, that is that Peter MacCallum support continuation of research in the area in the longer term but that was not supported by Professor McArthur. However, other options were considered. The discussions commenced prior to the definite decision. For the reasons discussed earlier this satisfies the requirement that discussions “must commence as early as practicable after a definite decision has been made”.

[58] After the definite decision, the formal written advice about the decision and the meeting on 23 October 2015 focused on redeployment or finding an alternative institution rather than upon averting the redundancy. Peter MacCallum was not open to further discussion about continuation of the BRAF Project work at Peter MacCallum including administration of the surplus funds. If the earlier discussions and consideration had not occurred then this might have been inconsistent with the consultation obligations. However, in light of the long history of earlier discussions I do not consider this to be inconsistent with the consultation obligations.

[59] I am also satisfied that, considered in the context of earlier discussions and written communications, the written communication of 23 October 2015 contained the relevant information about the changes including the nature of the changes proposed and the expected effects of the changes. The written communication of 27 May 2015 is particularly relevant in this respect. 11

[60] Dr Ferrao argues that the reason for redundancy given in October 2015 was that the funding for the project was about to cease. Dr Ferrao argues that given that she obtained approval for further funding on 1 December 2015 and advised the employer of that funding, this reason for redundancy was now clearly invalid. Dr Ferrao argues that in the letter from Ms Topp, Acting Chief Executive, of 12 January 2016 in response to her complaint about this fact and other matters, Ms Topp did not repeat that the reason for the redundancy was that the funding for the project had ceased but instead invented a new reason which was that further application for funding would not be consistent with the determined research focus of the laboratory. For the reasons discussed earlier I consider this argument to be artificial and unsustainable. The letter of 12 January 2016 considered in the context of all that had gone before, did not change the reason for the redundancy. Dr Ferrao did not have authorisation to make the application for further funding and she knew it. Dr Ferrao knew what the conditions for a further application to be made were and they were reiterated on several occasions in writing in September 2015. Dr Ferrao knew that this avenue was firmly closed off at the time of the 23 October 2015 meeting. Ms Goddard gave evidence that she did not believe that there was funding for an additional year of salary. Dr Ferrao argues that this is inconsistent with the fact that she had obtained approval from NHMRC for the additional funding. However, considered in context Ms Goddard was giving evidence that funding for an additional year had not been approved by the manager of the laboratory, Professor McArthur. 12

[61] I accept that Professor McArthur and Dr Ginns could not confirm that there was specific consultation about the change in strategic direction or priorities. 13 However, for the reasons discussed earlier I consider that the attempt to distinguish different reasons given by the employer for the redundancy to be artificial. The employer had a consistent position which was that it did not wish to continue to administer the BRAF project after the end of 2015.

[62] I consider that the consultation was not perfunctory and that there were genuine opportunities to influence the decision maker. The consultation can be divided into two periods. In the first period prior to 23 October 2015 there were discussions about alternatives to redundancy and in the second period from 23 October 2015 the discussions were largely limited to the issues of redeployment and support to transfer to another institution. The discussions after 23 October 2015 were limited – essentially it was a 13 week period to find other work or opportunities for redeployment. 14 If the earlier period of discussion had not occurred then I may have found that the failure of Peter MacCallum to consider accepting the administration of the grant for the surplus funds which had been obtained by Dr Ferrao in December 2015 to be inconsistent with the consultation obligations. However, Peter MacCallum had made it abundantly clear in September 2015 the conditions under which it would consider administering a short term further grant and those conditions were not unreasonable and they had not been met.

[63] I am satisfied that the requirements of Clause 18 of the Agreement were met.

Would it have been reasonable in all the circumstances for Dr Ferrao to be redeployed?

[64] It is not suggested that there are any related entities which are relevant to this question. So the focus is on opportunities for redeployment within Peter MacCallum.

[65] Dr Ginns was responsible for monitoring opportunities for redeployment during the 13 week period prior to the redundancy taking effect. 15 Dr Ginns gave evidence that she continued to seek redeployment options by monitoring the intranet site but that no suitable opportunities were advertised.

[66] Redeployment was discussed at the meeting of 23 October 2015 according to Dr Ginns and Professor McArthur who were present at the meeting. However, it is not suggested that any specific opportunities were discussed or identified.

[67] Professor McArthur and Dr Ginns gave evidence that they sought to meet with Dr Ferrao to discuss progress in securing a new position on 5 January 2016. Professor McArthur gave evidence that positions sometimes emerge early in the new year and that “we always offer our staff the ability of transferring to an alternate position within the organisation.” 16

[68] Professor McArthur and Dr Ginns did not believe that redeployment was very likely. Professor McArthur thought that Dr Ferrao was focused on continuing with the BRAF project research and that this would mean having to find another employer. 17 This evidence suggests lack of real efforts to find redeployment opportunities. It is generally unreasonable to assume that attitudes expressed by an employee prior to a definite decision to make a position redundant will be the same after the real impact of the redundancy decision hits the employee. However, in the circumstances of this case Professor McArthur’s view is understandable.18 Dr Ferrao failed to take up the opportunity to have the Institute administer a short term extension of the BRAF Project in September 2015 and she did express her preference to take up research with another institution at the end of the current BRAF project. There is also evidence of earlier efforts and proposals made by Professor McArthur to support Dr Ferrao’s career.19

[69] I accept that there are limited positions for research scientists at Peter MacCallum and that there are many employees, particularly research students, in short term positions and/or chasing continuing work as funding sources change. Many available positions will require specialist skills and experience. I therefore accept the evidence of Dr Ginns and Professor McArthur that redeployment opportunities for Dr Ferrao were limited.

[70] Dr Ferrao did apply for two positions during the redeployment period. She was deemed unsuitable on the basis of her seniority and research expertise. Both positions were at a lower level than her current job and were outside of the Molecular Oncology Laboratory. Neither Dr Ginns nor Professor McArthur were aware of these applications at the time. Dr Ginns clearly was not considering the option of redeployment to a more junior or a different position. 20 Dr Ginns says that Dr Ferrao did not express interest in redeployment to her.21 Dr Ginns also considered that what she described as “Dr Ferrao’s narrow research interests and experience” meant that redeployment to any role, seniority aside, was made particularly difficult.22 I do not accept Dr Ginns’ assessment of Dr Ferrao’s narrow interests and experience. Dr Ferrao has high level skills and qualifications and a decade of experience at Peter MacCallum which would be transferable to other research projects. Dr Ginns’ evidence suggests a lack of real efforts to achieve redeployment.

[71] In closing written submissions for Dr Ferrao the following issue is raised:

[72] I accept this submission. Dr Ferrao was unsuccessful in getting the jobs in part because she was too senior for the position. In considering redeployment as opposed to a competitive selection process the fact that an employee is too experienced and qualified is not normally a barrier. Given Dr Ferrao’s high level research standing and experience at Peter MacCallum on balance I am satisfied that Dr Ferrao could reasonably have been redeployed to one of the positions which she applied for. Such action would be reasonable having regard to Dr Ferrao’s ten years of service with Peter MacCallum.

[73] Peter MacCallum in their closing written submissions correctly identify the test as follows: Is it…“open on the evidence in this case for the Commission to find on the balance of probabilities that there was a job or position or other work within the Respondent’s enterprise to which it could have been reasonable in all the circumstances to redeploy Dr Ferrao.” 24

[74] I am satisfied that this test is met in light of my conclusions that:

[75] It would have been reasonable in all the circumstances for Dr Ferrao to have been redeployed.

Was the dismissal a genuine redundancy?

[76] Based upon my conclusion concerning redeployment, the dismissal was a redundancy but not a genuine redundancy. Dr Ferrao is therefore protected from unfair dismissal.

Was the dismissal unfair?

[77] In deciding whether or not the dismissal was unfair I am required to consider the following:

[78] Dr Ferrao was dismissed due to shortage of work and not because of conduct or performance. Section 392(a), (b), (c) and (e) are therefore not relevant.

[79] Dr Ferrao was not refused a support person. Section 392(d) is a neutral factor.

[80] Peter MacCallum is not a small business and the size of the business did not influence the procedures utilised for the dismissal. Peter MacCallum had specialised human resources employees but I am not satisfied that this influenced the procedures adopted. Sections 392(f) and (g) are neutral factors.

[81] The relevant other factors (Section 392(h)) are:

[82] I do not accept the argument of Dr Ferrao that it was harsh for the employer not to accept sponsorship for a one year extension of the BRAF Project. I consider that the issue of research priorities is a matter for the employer subject to any consultation requirements under the Agreement. I am not in a position to consider the submission of Dr Ferrao that the alleged failure of Peter MacCallum to transfer intellectual property to enable her to transfer work to another institution makes the termination harsh. There was insufficient evidence before me to make a judgement about that matter. Peter MacCallum withheld payment of Dr Ferrao’s outstanding entitlements for more than four months as part of the dispute with Dr Ferrao about intellectual property issues. Dr Ferrao argues that there was no lawful basis for this action and that it also made the termination harsh. There was insufficient evidence before me to make a judgement about that matter.

[83] I am satisfied taking into account all of these factors that the dismissal was unfair because it was unjust to terminate Dr Ferrao in circumstances where it would have been reasonable to redeploy Dr Ferrao.

Remedy

[84] Dr Ferrao does not seek reinstatement. Peter MacCallum opposes reinstatement. In circumstances where I have accepted that there was a redundancy situation and the employee does not seek reinstatement I accept that reinstatement is inappropriate.

[85] I consider it appropriate to make an order for compensation.

[86] I am required to consider the following matters in determining compensation (Section 392(2)):

87] There is no basis to conclude that the viability of a large employer like Peter MacCallum would be adversely effected by any order I make.

[88] The length of Dr Ferrao’s service of 10 years stands in favour of a higher award of compensation and it also suggests that she would have been likely to have stayed in employment for a considerable period had she not been dismissed. On the other hand the available positions for Dr Ferrao which have been identified are at a lower level and I consider it unlikely that Dr Ferrao would stay in a lower level position for a lengthy period. I am also satisfied that Dr Ferrao has a passionate commitment to research in the BRAF Project area. I consider it likely that she would have continued to seek further opportunities in this field and that would have required a move to another employer. I also note that her actions in making an application for funding on behalf of Peter MacCallum without authorisation damaged the trust that Peter MacCallum had in Dr Ferrao and that would impact on the length of her likely future employment. Taking all of these factors into consideration I estimate that Dr Ferrao would have remained in employment with Peter MacCallum for a further 6 months or 26 weeks, exclusive of notice, had the dismissal not occurred.

[89] I reject the submission of Dr Ferrao that I should estimate that the period of employment as the one year period of the extension for the BRAF Project funding. I have not found that the failure to agree to sponsor the extension to the BRAF Project was harsh, unjust or unreasonable. I have not found that this was a position to which Dr Ferrao should have been redeployed.

[90] During the period since the dismissal Dr Ferrao has not earned anything from employment. Dr Ferrao did however receive a redundancy payment. This amount should be taken into account. If Dr Ferrao was redeployed to one of the positions identified there is no basis for assuming that she would have received a redundancy payment when her employment came to an end. Payment of accumulated leave should not be taken into account. The notice period payment should also not be taken into account as I consider it likely to be payable at the conclusion of the six month period and I took this into account in determining the future expected period of employment.

[91] Dr Ferrao has made reasonable efforts to obtain future employment. She has secured two unpaid university posts. Due to a dispute with Peter MacCallum concerning patent rights she claims it has been difficult to obtain employment utilising the BRAF Project surplus funds with another institution. I make no judgement about the rights or wrongs of that dispute, however, I accept that it has affected her capacity to finalise other employment. Dr Ferrao gave evidence that she has applied for other positions. 25

[92] I do not estimate that Dr Ferrao will earn anything during the short period between this decision and the payment of compensation.

[93] Although I consider Dr Ferrao’s actions in applying for the grant without authorisation to be inappropriate, in all the circumstances I do not consider this to have been serious misconduct. I will discount the compensation by 10% for this reason.

[94] As the income of Dr Ferrao during the period since the dismissal is known and given a period of more than six months has already elapsed since the dismissal, I do not consider it necessary to make any deductions for contingencies.

[95] There are no other matters I consider relevant.

[96] I will therefore order compensation of 26 weeks’ pay less the severance payment of 20 weeks and I will then reduce the resultant amount by 10%. This leaves an amount of compensation of 5.4 weeks. The pay advice provided by both parties suggests that weekly remuneration inclusive of superannuation was $1772.29. The amount of compensation is therefore $9570.37. Appropriate taxation should be deducted. I will allow 14 days for payment. The Order is published separately.

COMMISSIONER

Appearances:

Ms F Knowles appeared for the Applicant.

Ms A Forsyth appeared for the Respondent.

Hearing details:

2016

Melbourne

July 7

Final written submissions:

19 July 2016

 1   Exhibit P3.

 2   Dr Ferrao’s first witness Statement, Attachment 4.

 3   PN410 to PN411.

 4   PN269.

 5   Second witness Statement of Dr Ferrao at paras 25-27.

 6   Second witness Statement of Professor McArthur at para 19.

 7   Second witness Statement of Dr Ferrao at paras 63-67.

 8   Second witness Statement of Dr Ferrao at paras 5 and 6 and Attachment 9. Also PN110.

 9   PN566 to PN593, PN729 to PN734 and PN828 to PN840.

 10   PN317 and PN338.

 11   PN332 and Professor McArthur’s first Statement, Annexures GM1, GM2, GM3 and GM4.

 12   PN878 to PN880.

 13   PN472 to PN490, PN548 to PN576, PN590, PN693 to PN698 and PN708 to PN734.

 14   Statement of Goddard at para 22.

 15   Reply Statement of Dr Ginns at para 2 and PN841 to PN842.

 16   PN611.

 17   PN621 and PN627.

 18   PN618.

 19   Reply Statement of Professor McArthur at para 7 and PN461 to PN467 and PN349.

 20   PN743.

 21   PN739.

 22   Witness Statement in reply of Dr Ginns at para 2(a).

 23   Statement of Dr Goddard, Attachment 3 and Closing Submissions of Applicant at para 22.

 24   Technical and Further Education Commission T/A TAFE v Pykett [2014] FWCFB 714 at [36].

 25   PN252 and PN369.

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