DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Jasmine Chambers
v
Commonwealth of Australia (Bureau of Meteorology)
(C2020/9270)

Application to deal with contraventions involving dismissal.

1 The issue and conclusion

[1] On 24 December 2020, Ms Chambers (the Applicant) made a general protections application involving dismissal to the Fair Work Commission pursuant to s 365 of the Fair Work Act 2009 (Cth) (the Act). The Respondent to this application is the Commonwealth of Australia (Bureau of Meteorology) (the Respondent).

[2] The Applicant had held a senior position with the Respondent in the role of General Manager, Global and National Science Relationships. However, that position had been made redundant and the Applicant was, for a while, placed on a redeployment period. That period came to an end in accordance with clause C.9.36 of the Bureau of Meteorology Enterprise Agreement 2018 (Bureau’s Agreement), 1 when the ‘Agency Head’ of the Respondent, with the agreement of the Applicant, terminated her employment pursuant to s 29 of the Public Service Act 1999 (Cth) (Public Service Act).

[3] The Respondent has objected to the application on the basis that the Applicant had not been dismissed from her employment given that the end of her employment came about by agreement under clause C.9.36. The Respondent’s objection has implications for the application on foot, because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application. 2 Section 365 relevantly provides:

365 Application for the FWC to deal with a dismissal dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

[4] Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act. 3 Therefore, the discrete issue for determination is whether the Applicant was ‘dismissed’ from her employment within the meaning of s 386(1)(a) of the Act. Phrased another way – was the termination of the Applicant’s employment at the initiative of the Respondent.

[5] The short answer to that question is – yes. I am satisfied that the Applicant’s employment was terminated at the initiative of the Respondent and having determined the Applicant was dismissed, she is now entitled to apply under s 365 of the Act for the Commission to deal with her dismissal dispute. While the reasons for the decision follow, the next steps concerning the programming of this application can be found at paragraphs [73]-[75].

2 Background

[6] The Applicant’s employment with the Respondent was covered by Bureau’s Agreement. 4 The provisions of that Agreement play an eminent part. They framed the chronology of events, providing context as to why the Respondent took some of the steps that it did. Particularly relevant was Part C.9 of the Bureau’s Agreement, which set out obligations and entitlements concerning ‘Retention, Redeployment and Redundancy’. I have set out quite fulsomely the relevant clauses and thereafter traced the measures which ultimately led to a parting of ways between the Applicant and Respondent.

[7] Coverage of the Bureau’s Agreement in respect to Part C.9 was set by clause C.9.1, which explained that the Agreement extended to all the Respondent’s employees with the exception of those employees who had less than one year’s service or who were non-ongoing employees. It was uncontentious that Part C.9 applied to the Applicant.

[8] At clause C.9.2 the Bureau expressed its commitment to those employees who were ‘excess’ or potentially excess to the requirements of the Respondent. Clause C.9.2 reads: 5

The Bureau is committed to providing employees who are excess or potentially excess with assistance to maximise their redeployment opportunities and, as much as practicable, to avoid involuntary termination of employment. The wishes and interests of employees who are excess or potentially excess will be taken into account during the process that is defined in clause C.9.

[9] The Bureau’s Agreement defined an ‘excess’ employee at clause C.9.3 in the following terms: 6

An employee is an excess employee if:

a) the employee is included in a class of employees employed in the Bureau which comprises a greater number of employees than is necessary for the efficient and economical working of the Bureau; or

b) the services of the employee cannot be used effectively because of technological or other changes in the work methods of the Bureau or changes in the nature, extent of organisation of the functions of the Bureau; or

c) where the duties usually performed by the employee are to be performed at a different locality, the employee is not willing to perform duties at the locality and the Agency Head has determined that these provisions will apply to that employee.

[10] Where an employee was likely to become excess, the Bureau’s Agreement set out steps it was required to take at clauses C.9.4 – C.9.7: 7

Consultation with potentially excess employees

C.9.4 When the Agency Head is aware that an employee(s) is likely to become excess, they will advise the employee(s) at the earliest practical time.

C.9.5 Discussions with the potentially excess employee(s) will be held to advise them of the reasons they may become excess and to consider:

a) measures that could be taken to resolve the situation, including redeployment opportunities for the employee(s) at or below level including through any APS-wide deployment mechanism which might exist at the time;

b) referral to a service provider approved by the Agency Head to provide career planning and other appropriate assistance; and

c) whether voluntary retrenchment might be appropriate.

C.9.6 Where the employee(s) nominate(s) a representative, the Agency Head will hold the discussions with the employee(s) and the employee’s representative.

C.9.7 The Agency Head may, prior to the conclusion of these discussions, invite an employee or group of employees who are not potentially excess to express interest in voluntary retrenchment, where the retrenchment of that employee(s) would permit the redeployment of an employee who is potentially excess.

[11] At least one month after holding discussions with an excess employee in accordance with clauses C.9.4 and C.9.5, the Agency Head was able to advise an employee in writing that they were an ‘excess employee’ (a declaration of sorts). 8 A shorter period was permitted if agreed by both parties.

[12] Part C.9 then details the various ‘separation’ options available. These include an accelerated separation, a voluntary retrenchment, a retention period – early termination, and of course involuntary retrenchment. The various options are expanded upon below:

Accelerated separation option and additional payment

C.9.9 The Agency Head may provide employees likely to be subject to the redundancy provisions of this Agreement with an accelerated separation option. This option provides, in addition to the severance benefit, a payment of 10 weeks salary (or 11 weeks salary for an employee over 45 years old with at least five years continuous service) where the excess employee agrees to termination of employment and the employment is so terminated within 14 days of receiving an offer of voluntary retrenchment. The payments made under this clause are inclusive of any statutory entitlement to payment in lieu of notice. 9

C.9.10 This option is available to employees who exit from the Bureau prior to declaration as an excess employee under clause C.9.8. Where an employee elects not to accept an offer under this option, the standard retrenchment provisions, starting at clause C.9.11, will apply. 10

Voluntary retrenchment

C.9.11 Where an employee is advised that they are an excess employee in accordance with clause C.9.8, the Agency Head may invite the excess employee to accept voluntary retrenchment. 11

C.9.12 Where the Agency Head invites an excess employee to accept voluntary retrenchment, the employee will have one month in which to accept the offer… 12

Redeployment and Retention Period

C.9.28 An excess employee who does not agree to voluntary retrenchment with the payment of a severance benefit will be entitled to the following retention period: 13

a) 13 months where they have 20 or more years’ service or is over 45 years of age, or;

b) 7 months for all other employees.

C.9.29 If an employee is entitled to a redundancy payment under the NES, the retention period at clause C.9.28 will be reduced by the employee’s redundancy payment entitlement under the NES on termination, calculated as at the expiration of the retention period (as adjusted by this clause). 14

Commencement of Retention Period

C.9.30 The retention period will commence on the day the employee is advised in writing by the Agency Head, in accordance with clause C.9.8, that they are an excess employee. 15

C.9.31 The retention will be extended by any periods of certified Personal/Carer’s leave taken for the purposes of personal illness or injury during the retention period. 16

Employer Responsibilities

C.9.32 During the retention period, the Agency Head:

a) will provide the employee with access to:

i. the APS-wide redeployment mechanisms; and

ii. the services of a provider approved by the Agency Head in order to assist them to be redeployed.

b) will take all reasonable steps, consistent with the interests of the efficient administration of the Bureau, to assign new duties to an excess employee at their substantive classification within the Bureau; and

c) may, after taking reasonable steps to find alternative employment in the Bureau, at the excess employee’s substantive classification, and with four weeks’ notice, allocate a lower classification to the employee, having determined that duties appropriate to that classification are to be performed by the employee. The employee will receive income maintenance to maintain their salary at the previous higher classification for the balance of the retention period… 17

Retention Period – Early Termination

C.9.36 Where:

a) an excess employee has been receiving redeployment assistance from a service provider for two months; and

b) the service provider advises that there is no reasonable prospect of redeployment in the APS; and

c) the Agency Head is satisfied that there is insufficient productive work available for the employee with the Bureau during the remainder of their retention period;

the Agency Head may, with the agreement of the employee, terminate the employment of the employee under s 29 of the PS Act. Upon termination, the employee will be paid a lump sum comprising the balance of the retention period (as shortened for the NES under clause C.9.29) and this payment will be taken to include the payment in lieu of notice of termination of employment, plus the employee’s NES entitlement to redundancy pay. 18

Involuntary retrenchment

C.9.37 Subject to clause C.9.36, the Agency Head under s 29 of the PS Act may terminate the employment of an excess employee who has not agreed to voluntary retrenchment and has not been permanently redeployed to an ongoing position at the conclusion of the retention period. 19

C.9.38 The Agency Head will not terminate the employment of an excess employee if the excess employee has not been invited to accept an offer of voluntary retrenchment or has elected to accept an offer of voluntary retrenchment but the Agency head has refused to approve it. 20

C.9.39 An excess employee will be given four weeks’ notice (or five weeks’ notice for an employee over 45 with at least five years of continuous service) of termination of employment. These periods of notice will, as far as practicable, be concurrent with retention periods. 21

[13] In circumstances where there is the early termination of the retention period the Agency Head may, with the agreement of the employee, terminate the employment under s 29 of the ‘PS Act’. 22

[14] Clause C.9.14 of the Bureau’s Agreement defines ‘PS Act’ to mean the Public Service Act 1999 (Cth). Section 29 of the Public Service Act is entitled ‘Termination of Employment’ and provides at subsections (1) to (3):

29 Termination of employment

(1) An Agency Head may at any time, by notice in writing, terminate the employment of an APS employee in the Agency.

Note 1: The Fair Work Act 2009 has rules and entitlements that apply to termination of employment.

Note 2: Commissioner’s Directions issued under subsection 11A(1) may set out procedures to be followed in terminating the employment of an APS employee.

(2) For an ongoing APS employee, the notice must specify the ground or grounds that are relied on for the termination.

(3) For an ongoing APS employee, the following are the only grounds for termination:

(a) the employee is excess to the requirements of the Agency;

(b) the employee lacks, or has lost, an essential qualification for performing his or her duties;

(c) non-performance, or unsatisfactory performance, of duties;

(d) inability to perform duties because of physical or mental incapacity;

(e) failure to satisfactorily complete an entry-level training course;

f) failure to meet a condition imposed under subsection 22(6);

(g) breach of the Code of Conduct;

(h) any other ground prescribed by the regulations.

(4) The regulations may prescribe the grounds for the termination of the employment of non-ongoing APS employees.

(5) Subsection (4) does not, by implication, limit the grounds for termination of the employment of a non-ongoing APS employee.  23

[15] On 28 November 2019, the Respondent’s Chief Executive Officer (Agency Head) announced the Respondent would be undergoing a restructure described as ‘Group and Program Changes’. 24

[16] In January 2020, the Applicant was notified that as part of the restructure, the Global and National Science Relationships Program was to be discontinued and that the Applicant’s role (in addition to several other roles) was ‘potentially excess to requirements’. 25

[17] On 14 January 2020, the Applicant met with Ms Simone Keenan, General Manager Organisational Development, about the consequences of her role being declared potentially excess to requirements. At that meeting, the Applicant was told that she would have ‘priority’ on redeployment lists and registers, and the Applicant enquired about a role entitled ‘General Manager for International Development’ which she:

a) understood from materials provided by the Respondent in relation to the restructure, was a position that was to be created in the restructure;

b) which appeared, to the Applicant, to be a position similar to that which she had occupied, and which was proposed to be ‘excess’ (both in terms of seniority and duties); and

c) which the Applicant understood to be unfilled and a potential redeployment option for her. 26

[18] On 29 January 2020, the Applicant had a second meeting with Ms Keenan, in which she again enquired about the General Manager for International Development role. The Applicant was told that Ms Keenan would ‘follow up’ on this possibility. 27

[19] On 13 May 2020, the Applicant had a meeting with Ms Keenan and Ms Hall, Manager People Services. At that meeting, Ms Hall outlined that once a role was formally declared ‘excess to requirements’, the employee in the role had the option to either accept a voluntary ‘accelerated’ redundancy or pursue redeployment in the ‘redeployment and retention period’ provided for in the Bureau’s Agreement. 28

[20] As to redeployment, Ms Hall said that there are two redeployment registers in use, the first kept internally by the Respondent and the second being an APS-wide register. Ms Hall also said that the Respondent ensures the employee has ‘work to do’ while they are seeking redeployment so that they are not ‘just sitting there twiddling their thumbs’ and that it is up to the Respondent to make sure the employee ‘still has work’. 29

[21] The Applicant received notification that her role had been formally declared excess to requirements on 10 August 2020. 30 On that same date, she had a conversation with Ms Keenan, in which she stated her understanding that she was required to communicate whether she accepted voluntary redundancy or sought redeployment, which was confirmed by Ms Keenan.31 During the conversation, Ms Keenan informed the Applicant that if the Applicant sought redeployment, she would ‘source suitable opportunities’ for the Applicant and ‘find activities to keep [the Applicant] suitably occupied’.32

[22] The Applicant did not accept the offer of a voluntary retrenchment with the payment of a severance benefit within the meaning of clauses C.9.11-C.9.16 of the Bureau’s Agreement. 33 Instead, she elected to exhaust her options for redeployment through the ‘redeployment and retention period’ provided for in the Bureau’s Agreement.

[23] From 10 August 2020, a ‘Redeployment and Retention Period’ of 13 months commenced, pursuant to clause C.9.28 of the Bureau’s Agreement. 34 During this time Ms Keenan effectively became the Applicant’s primary contact or line manager.

[24] On 18 September 2020, the Applicant said she met with Ms Hall, and Ms Hall suggested that the Applicant could agree that the Redeployment and Retrenchment Period end early. 35 This would be done pursuant to clause C.9.36 of the Bureau’s Agreement. During this conversation, the Applicant said that she again asked about the General Manager for International Development role, which, until this point in time, Ms Keenan had still not provided any information about - despite the numerous requests made by the Applicant.36

[25] During the Redeployment and Retrenchment Period, the Applicant noted that she had complied with her responsibilities under C.9.33 of the Bureau’s Agreement to take all reasonable steps to find alternative employment. She worked with the Respondent’s outplacement organisation, Converge, towards trying to pursue redeployment opportunities. 37 She said she repeatedly enquired about the General Manager for International Development role. It is noted that the Applicant met once with Converge to discuss her pursuit of alternative employment – Converge providing assistance with interview preparation rather than sourcing potential positions.

[26] It was the Applicant’s evidence that the Respondent never approached her with suggested redeployment opportunities. 38 Ms Hall gave evidence that once an excess employee is on a retention list, the employee can register themselves on two redeployment lists – one internal, and the other for the broader Australian Public Service.39 To the best of her understanding, the Applicant had not registered on either list. At hearing, the Applicant confirmed that she had not registered on the lists but nevertheless checked them all the same.

[27] According to the Applicant, the Respondent failed for months to respond to her queries about the General Manager for International Development role, finally telling her in October 2020 that the position was being put ‘on hold’ due to COVID-19. 40 At hearing, Ms Keenan acknowledged that the General Manager for International Development role did not eventuate.

[28] The Applicant purports that the Respondent did not provide her with any meaningful work to do in the period 10 August 2020 to 18 December 2020. 41 This was contrary, said the Applicant, to Ms Keenan’s and Ms Hall’s assurances in the conversations on 13 May and 10 August 2020, as well as clause C.9.32 of the Bureau’s Agreement, which required the Respondent to take all reasonable steps to assign new duties to an excess employee.

[29] While there was some suggestion that the Applicant took leave during the period of 10 August and December 2020, which may have impacted upon the provision of meaningful work, it appeared that the Applicant had only taken five days of leave over the relevant four month period. Further, when Ms Keenan was asked about the work available for the Applicant to perform, and it was proposed that there really was not a whole lot for the Applicant to do, Ms Keenan conceded that unfortunately that was correct. That is not to say that Ms Keenen did not initially seek out work opportunities for the Applicant, but it is apparent that none came to fruition.

[30] When the proposition was put forward to Ms Keenan that with no prospects of redeployment and no reasonable work for her to do, it was inevitable that the Applicant would accept the early termination option as most employees would. Ms Keenan accepted that proposition.

[31] The Applicant detailed that the Respondent’s failure to engage in a good faith exploration of redeployment opportunities and suitable alternative duties left her feeling ‘isolated’, ‘awkward’ and as though she had ‘no option but to leave [the Respondent]’. 42

[32] To reiterate, clause C.9.36 of the Bureau’s Agreement provides:

Where:

a) an excess employee has been receiving redeployment assistance from a service provider for two months; and

b) the service provider advises that there is no reasonable prospect of redeployment in the APS; and

c) the Agency Head is satisfied that there is insufficient productive work available for the employee with the Bureau during the remainder of their retention period;

d) the Agency Head may, with the agreement of the employee, terminate the employment of the employee under s29 of the PS Act. Upon termination, the employee will be paid a lump sum comprising the balance of the retention period (as shortened for the NES under clause C.9.29) and this payment will be taken to include the payment in lieu of notice of termination of employment, plus the employee’s NES entitlement to redundancy pay. 43

[33] On 2 November 2020, in response to Ms Hall’s suggestion of 18 September 2020, the Applicant wrote to Ms Keenan in the following terms: 44

it has become apparent that the current redeployment process is of little utility, something that is unlikely to change. I feel I am left with no viable option other than to acquiesce to early termination as described by C.9.36 of the enterprise agreement. Amy Hall raised this type of termination with me in September… I wish to emphasise that the events leading to my termination and dismissal, including where things are now at, have been at the initiative and direction of the Bureau’.

[34] In response, on 20 November 2020, Ms Hall wrote to the Applicant and said ‘Simone [Ms Keenan] has let me know that you’ve requested access to the early separation option that you and I had discussed some time ago’. 45

[35] In response, on 3 December 2020, the Applicant sent a further email to Ms Keenan and Ms Hall in which she wrote: 46

As per my earlier correspondence, the early termination option was first put to me as an option by the Bureau. I did not seek it, and it isn’t correct to suggest that it was initiated by me. You would both be aware of my desire to remain in the Bureau as far back as August last year, throughout the change process, and further my subsequent progress to redeployment. Further I made many enquiries regarding a role within the Bureau that I felt I may be suitable for to be told only quite recently that this role was presently on hold. The current situation is in no way of my making but rather a path I have been led down by the Bureau. Having said that and given the current stasis that I am now in, I wrote earlier to suggest that the process for early termination under the EA now appears to be the only viable outcome for all concerned. As I read it, this is something that the Bureau is able to put to me under C.9.36 of the EA (pages 24-25) and it may be carried out with my consent. For all the reasons already outlined, including my own wellbeing, I am inclined to consent to an offer that aligns with the terms of the EA.’ (emphasis added)

[36] On 11 December 2020, Ms Keenan wrote an email to the Applicant in the following terms: 47

I note your advice that you would be inclined to consent to an offer of early termination of your employment that complies with the terms of the Bureau of Meteorology Enterprise Agreement 2018 (Bureau EA). Clause C.9.36 permits the Bureau to terminate the employment of an excess employee where the employee has been receiving redeployment assistance from a service provider for 2 months, that provider advises that there is no reasonable prospect of redeployment in the APS and the Agency Head is satisfied that there is insufficient productive work available for the employee with the Bureau during the remainder of their retention period. The Director has received advice that there is no reasonable prospect of redeployment in the APS and is satisfied that there is insufficient productive work available for you with the Bureau during the remainder of your retention period. Accordingly, if you agree, the Director now proposes to terminate your employment under s 29(3)(a) of the Public Service Act 1999 on the ground that you are excess to the requirements of the Bureau, with effect from 18 December 2020. This date has been proposed on the understanding that you wish to separate as soon as practicable. Upon your termination taking effect you will be paid a lump sum of $162,517.05 (gross) comprising the balance of the retention period (as shortened by the NES under clause C.9.29) and this payment will be taken to include the payment to you in lieu of notice of termination of employment, plus your entitlement under the NES for redundancy pay. If you wish to agree to be terminated with effect from 18 December 2020 please advise your agreement, in writing, by 16 December 2020.

[37] On 14 December 2020, the Applicant responded in the following terms: 48

Thank you for your response and confirmation that there is no reasonable prospect of redeployment and no work for me to do. I agree to the Bureau’s termination, pursuant to C9.36 of the EA. For all of the reasons I have previously articulated, this agreement is without prejudice to all of my rights under law and is not to be taken as my agreement to a voluntary redundancy.

[38] When the Respondent incorrectly stated in a document that the termination payment to be made to the Applicant upon termination concerned a ‘voluntary redundancy’, she objected to this on two occasions, and the document was subsequently revised to reflect that the termination payment did not relate to a voluntary redundancy. 49

3 Applicant’s submissions

[39] The Applicant submits that the actions of the Respondent were the ‘principal contributing factor’ leading to the termination of the employment relationship and had the ‘probable result’ that the employment relationship would be terminated.

[40] The Applicant relies upon the actions set out below as constituting those critical actions:

a) declaring the Applicant’s role excess to requirements;

b) failing to explain the reasons for the restructure, and why the Applicant’s role had been identified first as potentially excess to requirements and later as excess to requirements as part of the restructure;

c) failing to assign the Applicant suitable alternative duties during the redeployment and retention period, contrary to representations made by Ms Keenan and Ms Hall that such duties would be located and assigned to her and an obligation contained in the Bureau’s Agreement which required the Respondent to do so;

d) offering the Applicant, a ‘voluntary redundancy’ in July and August 2020, which the Applicant declined in order to pursue redeployment opportunities;

e) suggesting to the Applicant, in September 2020, that she consider agreeing to an early termination in the redeployment and retention period;

f) failing to approach the Applicant with any roles into which she could be redeployed throughout 2020;

g) informing the Applicant that there were no suitable roles within the Respondent to which she could be redeployed;

h) repeatedly, and over a period of several months, failing to explain why the Applicant could not be redeployed into the role of General Manager for International Development and then finally in October 2020, telling the Applicant that this position was being put on hold because of purported budgetary challenges and the impact of the ‘COVID-19’ pandemic -

i. informing the Applicant by the email dated 11 December 2020 that the Director had received advice that there was no reasonable prospect of redeploying the Applicant within the Australian Public Service and that there was insufficient productive work available for her to do; and

i) terminating the Applicant’s employment pursuant to s 29 of the Public Service Act 1999 (Cth) and clause C.9.36 of the Bureau’s Agreement.

[41] Further, and to the extent that the Applicant’s correspondence with the Respondent between 2 November 2020 and her dismissal was consistent, the Applicant:

a) provided caveats that she considered her employment to have been terminated at the initiative of the Respondent; and

b) corrections were made by the Applicant to mischaracterisations of the termination by representatives of the Respondent, which were accepted by the Respondent.

[42] The Applicant pressed that at no stage, in correspondence, did the Respondent take issue with these statements from the Applicant or disclose that it considered her termination, if it arose under this provision in the Bureau’s Agreement, would be a termination other than one which was ‘at the initiative of the employer’.

[43] The Applicant submitted that the Respondent had agreed that the broader context surrounding the Applicant’s dismissal should not be divorced from the consideration of whether or not she was dismissed. The purported restructure and redundancy of the Applicant’s position, and the way in which this was handled by the Respondent’s representatives, demonstrates why, said the Applicant, the termination of her employment arose at the Respondent’s initiative.

[44] In response to the Respondent’s contention that the termination did not arise from the Respondent’s initiative because it was agreed to by the Applicant, the Applicant conceded that looking at the Applicant’s decision to accept the early termination option in isolation was problematic, but the broader context must be examined.

[45] In respect to certain submissions made by the Respondent, the Applicant argued that they could not stand with the evidence led. The Respondent’s submission that it did not advise the Applicant that there was no reasonable prospect of redeployment in the Australian Public Service was incorrect in light of the correspondence from Ms Keenan dated 11 December 2020 in which she wrote, ‘[T]he Director has received advice that there is no reasonable prospect of redeployment in the Bureau’. 50

4 Respondent’s submissions

[46] In the Respondent’s view, the issues could be reduced to two. The first, whether the Applicant was dismissed. The second, if the Applicant was dismissed, was it because the Applicant exercised a workplace right or was it because the Applicant was declared excess to requirements.

[47] The Respondent submits that having undergone a restructure in late 2019, the Applicant was notified that the Global and National Science Relationships Program, which she was leading at that time, was to be discontinued and her role, together with other roles, was potentially excess to requirements. 51 On 10 August 2020, the Applicant was informed that she was an excess employee to requirements and that her role had become redundant as a consequence of the restructure.

[48] It was the Respondent’s view that once the Applicant was declared excess, her employment was on a pathway to cessation sooner or later depending on the option selected by the Applicant. That is of course unless she could be permanently redeployed to an ongoing position.

[49] The Respondent acknowledged that the Bureau’s Agreement applied to the Applicant in her employment. That same Agreement provided three options for the Applicant regarding the cessation of her employment. For present purposes the relevant option, namely the one the Applicant chose, was that of redeployment and retention. 52 The Respondent outlined that this option applied where an employee had been declared excess and had not agreed to voluntary retrenchment with the payment of a severance benefit. The employee’s entitlement under this option was a retention period of 13 months (where the employee has 20 or more years’ service or is over 45 years of age), or seven months for all other employees.53 As the Applicant was over 45 years of age, she was entitled to a retention period of 13 months which commenced on 10 August 2020.

[50] The Respondent’s argument, and its reasoning why the Applicant was not dismissed, was summarised by the points made in its written submissions, which read as follows:

a) the Applicant was unsuccessful in securing redeployment assistance from the Respondent for more than two months;

b) notwithstanding that the Respondent did not advise the Applicant that there was no reasonable prospect of redeployment in the APS, the Respondent was aware that the Applicant did not sign up for the redeployment registers, 54 nor did she engage with Converge International, the outplacement provider.55 However, the intent of the Bureau’s Agreement was satisfied by enabling the Applicant to avoid the involuntary termination of her employment;56

c) the Agency Head was satisfied that there was insufficient productive work available for the Applicant with the Respondent during the reminder of her retention period; 57

d) the Applicant agreed to termination of her employment under s 29 of the PS Act; 58

e) upon termination, the Applicant was paid a lump sum comprising the balance of the retention period plus the Applicant’s NES entitlement to redundancy pay; 59

f) but for the Applicant agreeing to an early termination of her retention period, it would have been available to the Respondent to retrench the Applicant involuntary at the end of the 13 month period pursuant to clauses 9.37, 9.38, and 9.39 of the Bureau’s Agreement;

g) based on these points, once the Applicant’s employment was declared excess to requirements, the Respondent was entitled to terminate her employment pursuant to the relevant provisions in the Agreement and s 29(3)(a) of the PS Act. Therefore, the Respondent did not dismiss the Applicant pursuant to ss 386 and 12 of the Act; and

h) the simple fact that the Applicant’s employment, during the retention period, was terminated before the 13 months passed, does not give rise to a claim for dismissal at the Respondent’s initiative.

5 Consideration

[51] Central to the consideration in this case is the operation of s 386(1) of the Act.

[52] Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns Unfair Dismissal. However, that section is equally relevant to present circumstances. The word ‘dismissed’ is defined in s 12 of the Act as having adopted the meaning in s 386. That section reads:

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[53] There are exceptions under s 386(2) of the Act regarding when a person has been dismissed; those exceptions are not relevant to this case.

[54] The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct or a course of conduct’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (Bupa) in the following terms:  60

[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element. 61

[55] It is uncontroversial that the Applicant did not resign from her position. The Applicant argues that it was the actions of the Respondent which were the ‘principal contributing factor’ leading to the termination of the employment relationship between her and the Respondent, and that those actions had the ‘probable result’ that the employment relationship would be terminated. Therefore, the starting point is whether the Respondent terminated the Applicant’s employment at its initiative (s 386(1)(a)).

[56] While a summary of the position under s 386(1) was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Limited v Mrs Roxana Balgowan 62 (City of Sydney RSL) gave further consideration to the operation of s 386(1)(a), expressing:

[10] It seems clear…that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).

[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:

“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’” (references omitted)

[57] The Full Bench in City of Sydney RSL placed reliance on the decision of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd [No 2] (Mohazab). 63 This is unsurprising given the Full Court of the Federal Court in Mahony v White64 observed that the Act had retained the use of the phrase and that the judgment of Mohazab remained good authority as to the connotation of that formula.

[58] While finding it unnecessary and undesirable to endeavour to formulate an exhaustive description of what constituted ‘termination at the initiative of the employer’, the Court in Mohazab identified that an important feature was that the act of the employer resulted directly or consequentially in the termination of the employment and the employment relationship was not voluntarily left by the employee. 65 Furthermore, while a termination of employment may involve more than one action, it was important to ask oneself what was the critical action or actions, which constituted a termination of employment.

[59] Turning to the Bureau’s Agreement, it is evident that it contemplates various options when responding to ‘excess’ employees or employees who are likely to become ‘excess’. However, the starting point is that those options are enlivened only when the employee is either declared in ‘excess’ pursuant to clause C.9.8 of the Bureau’s Agreement or the employee has exited the organisation prior to having been declared in excess (clause C9.9 of the Bureau’s Agreement).

[60] There are three circumstances in which an employee can be considered to be an ‘excess employee’ under the Bureau’s Agreement. The first, where the employee is within a class of employees which comprises a greater number of employees than is necessary for the efficient and economical running of the Respondent. The second, there have been technological or other changes in work methods, or changes in the nature, extent or organisation of the Respondent which have resulted in the employee being unable to be effectively used. The third, where the employee’s duties are to be performed at a different locality, the employee declines to work at the different locality and the Agency Head determines that the provisions of Part C.9 of the Bureau’s Agreement will apply.

[61] Unsurprisingly, the three circumstances that give rise to an employee being considered an ‘excess’ employee involve an unwitting employee; perhaps with the exception of the third circumstance where the employee has declined to move locality. What has therefore led to the employee becoming an ‘excess employee’, or likely to be an ‘excess employee’, are factors that are Respondent dependent. It is the Respondent who has decided that there are too many employees for its efficient and economical working or because of some technological advancement or change in Bureau functions. Or alternatively, the Respondent may have decided to change the location of where an employee’s work is performed.

[62] The evidence clearly points to the Respondent restructuring its organisation in accordance with its ‘Group and Program Changes’, which were announced by its Chief Executive Officer on 28 November 2019. 66 Thereafter the Applicant was notified in January 2020, as part of the restructure, that the program she was responsible for delivering would be discontinued. It was uncontroversial that the Applicant’s role (in addition to several other roles) was ‘potentially excess to requirements’.67

[63] On 14 January 2020, the Applicant met with Ms Keenan about the consequences of her role being declared potentially excess to requirements. At that meeting, the Applicant was told that she would have ‘priority’ on redeployment lists and registers. The ‘Accelerated separation option and additional payment’ under clause C.9.9 was not pursued.

[64] Come 10 August 2020, the Applicant received notification that her role had been formally declared excess to requirements. 68 To state the obvious, it was the Respondent’s decision to restructure its operations, it was the Respondent’s decision to remove the function of Global and National Science Relationships Program, and it was the Respondent’s decision to declare the Applicant an ‘excess employee’ pursuant to the terms of the Bureau’s Agreement. One can safely assume that the Respondent had decided that there were too many employees for its efficient and economical working as a consequence of the restructure.

[65] On 10 August 2020, the Applicant stated her understanding to Ms Keenan that she was required to communicate whether she accepted voluntary redundancy or sought redeployment. 69 During the conversation, Ms Keenan informed the Applicant that if the Applicant sought redeployment, she would ‘source suitable opportunities’ for the Applicant and ‘find activities to keep [the Applicant] suitably occupied’.70

[66] The Applicant did not accept the offer of a voluntary retrenchment with the payment of a severance benefit within the meaning of clauses C.9.11-C.9.16 of the Bureau’s Agreement. 71 Again, it is uncontroversial that the Applicant elected to exhaust her options for redeployment through the ‘redeployment and retention period’ provided for in the Bureau’s Agreement.

[67] The evidence points to a finding that during the retention and redeployment period the Applicant was not provided with meaningful work or for that matter, any work. Ms Keenan spoke of liaising with counterparts in Organisational Development to identify discrete pieces of work for the Applicant, with limited success.

[68] While the Respondent appeared to press an argument that the Applicant had not engaged in the redeployment process given her lack of registration on the internal and external employment registers and may not have engaged with the ‘Leader Career Transition Services’ offered through the provider Converge, the indubitable fact remains that it was the Agency Head (Chief Executive Officer, Mr Andrew Johnson) who concluded there was no reasonable prospect of redeployment in the Australian Public Service and expressed that he was satisfied that there was insufficient productive work available for the Applicant with the Respondent during the remainder of the Applicant’s retention period.  72 Ms Keenan gave evidence that she advised Mr Johnson to that effect.

[69] In Mohazab the Court explained that what was important regarding the phrase ‘termination at the initiative of the employer’, was that the employment relationship was not voluntarily left by the employee. Viewed in isolation, the Applicant’s agreement to terminate her employment pursuant to clause C.9.36(d) of the Bureau’s Agreement might be considered a ‘voluntary departure,’ therefore averting a finding that the Applicant was dismissed. However, in my view that approach is one which adopts a constrained connotation of the term.

[70] One may also argue that the actions of the Respondent coalesced with the Applicant’s agreement such that it could not be said that there was a termination of employment at the initiative of the employer because the Respondent’s actions were not critical actions or actions that resulted directly or consequentially in the termination of the employment and the employment relationship. 73 However, the examination to be undertaken is one that is conducted on an objective basis.74 The focus is on the critical action or actions of the employer. That is not to say that the conduct of the employee is irrelevant – it too will be examined. However, the decision taken is examined in its broader context – the agreement to the termination by the Applicant is, after all, only one action to consider in a series of many.

[71] Briefly stated, I consider that the critical actions that gave rise to the Applicant’s termination of employment in the sense referred to in Mohazab, were the restructure of the Respondent organisation such that the Applicant’s role was made redundant, the proposal of the Respondent under clause C.9.36 of the Bureau’s Agreement, 75 and thereafter the action of the Agency Head who determined that there was no reasonable prospects of redeployment within the APS and there was insufficient productive work available for the remainder of the retention period with the Respondent organisation. If the Agency Head had not been so satisfied of the factors set out at clause C.9.36(c) of the Bureau’s Agreement, the Applicant would never have been placed to agree to the termination of her employment pursuant to clause C.9.36 of the Bureau’s Agreement.

[72] Having regard to all of the objective evidence, the weight of that evidence is that the Respondent’s actions resulted consequentially in the termination of the employment and the employment relationship of the Applicant.

6 Next Steps

[73] It is worth outlining s 370 of the Act, which, in setting out the pre-requisites for the making of a general protections court application, provides an overview of the next steps for the conduct of the Applicant’s application:

370 A person who is entitled to apply under s 365 for the FWC to deal with a dispute” must not make a general protections court application (as defined in s 368(4)) in relation to the dispute unless:

(a) both of the following apply:

(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

(b) the general protections court application includes an application for an interim injunction.

[74] The precursor to the issuing of the required certificate under s 368(3)(a) is that the Commission must deal with the dispute by conducting a conference 76 and reach a level of satisfaction ‘that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful’.77 Hence for present purposes and as a result of my determination, this matter will now be listed for conference in order to explore the possibility of resolution. A notice of listing will be issued shortly.

[75] Finally, while I have determined the Applicant was dismissed by the Respondent and is therefore entitled to apply under s 365 of the Act for the Commission to deal with her dismissal dispute, it should be noted that the Full Court in Coles Supply Chain Pty Ltd v Milford 78 made observations of the following nature regarding s 370 of the Act and the making of a general protection court application:

a) the Act establishes multiple alternate pathways for an applicant and prospective litigants;

b) s 370 of the Act is to be interpreted against the background that while the Commission may determine the question of a person’s entitlement to make an application to it, this may not be conclusive; and

c) this is because a Court may ultimately decline to recognise an ‘application’ or resulting certificate granted by the Commission as valid, if called upon by a Respondent to determine a subsequent objection to the competency of a general protections court application under s 370 of the Act.

DEPUTY PRESIDENT

Appearances:

Ms. Jasmine Louise Chambers, the Applicant;
Mr. Michael Whitbread, of St James Hall Chambers, for the Applicant;
Mr. Scott Chambers, of Chambers Russell Lawyers, for the Applicant;
Ms. Anca Costin, of Blackburn Chambers, for the Respondent;
Mr. Cameron Spence, of McInnes Wilson Lawyers, for the Respondent;
Ms. Bridie Andriske, for the Respondent.

Hearing details:

Perth (video);
April 22;
2021.

Final written submissions:

May 13;
2021.

Printed by authority of the Commonwealth Government Printer

<PR732303>

 1   Affidavit of Jasmine Louise Chambers dated 24 March 2021 (Chambers Statement) [6]; Commonwealth of Australia (acting through and represented by the Bureau of Meteorology) [2018] FWCA 5790 (Bureau’s Agreement); PR700399.

 2   Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [54]; [2021] HCASL 37.

 3   Ibid.

 4   Chambers Statement [6].

 5   Bureau’s Agreement C.9.2.

 6   Ibid C.9.3.

 7   Ibid C.9.4 – C.9.7.

 8   Ibid C.9.4, C.9.5.

 9   Ibid C.9.9.

 10   Ibid C.9.10.

 11   Ibid C.9.11.

 12   Ibid C.9.12.

 13   Ibid C.9.28.

 14   Ibid C.9.9.

 15   Ibid C.9.30.

 16   Ibid C.9.31.

 17   Ibid C.9.32.

 18   Ibid C.9.36.

 19   Ibid C.9.37.

 20   Ibid C.9.38.

 21   Ibid C.9.39.

 22   Ibid C.9.36(c).

 23   Public Service Act 1999 (Cth) ss 29(1)-(5).

 24   Chambers Statement [20].

 25   Witness Statement of Simone Keenan (Keenan Statement) [13e].

 26   Chambers Statement [24], [26].

 27   Chambers Statement [28].

 28   Chambers Statement [35].

 29   Ibid.

 30   Chambers Statement [37].

 31   Chambers Statement [38].

 32   Ibid.

 33   Chambers Statement [43].

 34   Chambers Statement [42].

 35   Chambers Statement [47].

 36   Ibid.

 37   Chambers Statement [48].

 38   Chambers Statement [49].

 39   Witness Statement of Amy Hall (Hall Statement) [18].

 40   Chambers Statement [49].

 41   Ibid.

 42   Chambers Statement [55]-[56].

 43   Bureau’s Agreement C.9.36.

 44   Chambers Statement [50].

 45   Chambers Statement [51].

 46   Chambers Statement [52].

 47   Chambers Statement [53].

 48   Chambers Statement [54].

 49   Chambers Statement [57]-[61].

 50   Document 22 of Exhibit JLC-1 at page 194 of Exhibit, as described in Chambers Statement [53].

 51   Keenan Statement [13(e)].

 52   Hall Statement [12].

 53   Bureau’s Agreement C9.28.

 54   Hall Statement [19].

 55   Hall Statement [26].

 56   Hall Statement [11].

 57   Hall Statement [22].

 58   Hall Statement [23].

 59   Hall Statement [27].

 60   [2017] FWCFB 3941 (‘Bupa’).

 61   Bupa [47].

 62   [2018] FWCFB 5.

 63   Mohazab v Dick Smith Electronics Pty Ltd [ No 2] (1995) 62 IR 200.

 64   (2016) 262 IR 221.

 65   Mohazab v Dick Smith Electronics Pty Ltd [ No 2] (1995) 62 IR 200, 205.

 66   Chambers Statement [20].

 67   Keenan Statement [13e].

 68   Chambers Statement [37].

 69   Chambers Statement [38].

 70   Chambers Statement [38].

 71   Chambers Statement [43].

 72   Chambers Statement [53].

 73   Mohazab v Dick Smith Electronics Pty Ltd [ No 2] (1995) 62 IR 200, 205.

 74   Ibid.

 75   Chambers’ Statement [47].

 76   Fair Work Act 2009 (Cth) ss 368(1), (2).

 77   Fair Work Act 2009 (Cth) s 368(3).

 78   [2020] FCAFC 152.