[2012] FWA 8384

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

Mr Michael Ball
Metro Trains Melbourne T/A Metro Trains



Termination of employment - genuine redundancy.

[1] I issued a decision in this matter on 11 September 2012 (PR528877). I decided as follows:

[2] In respect to remedy I decided as follows:

[3] In respect to redeployment I made the following relevant findings:

[4] I have now had the opportunity to consider the supplementary submissions and the further evidence provided by the parties.

[5] It is obviously not possible to reappoint the Applicant to the position in which he was employed immediately before the dismissal as that position no longer exists.

[6] Ms Ball, the Applicant’s daughter who had until recently been employed by the Respondent, gave evidence concerning a recently proposed reorganisation which if fully implemented may result in the position currently occupied by Mr Brownlea becoming vacant. That position was the subject of findings in my earlier decision. In my view the evidence of Ms Ball establishes that in a large organisation like Metro Trains restructuring is discussed regularly and some of these plans are implemented and some are not. Ms Ball accepted that there was no certainty that Mr Brownlea would move to a new position creating a vacancy in his current position. For this reason the evidence of Ms Ball does not affect my findings about whether or not there is a suitable position available for the Applicant.

[7] Reinstatement will generally be the appropriate remedy if redeployment would have been possible and appropriate. Nothing in the further submissions or evidence alters my view, for the reasons outlined in the first decision, that reinstatement is the appropriate remedy in this case if it is practical to order that the applicant be appointed to another position on terms and conditions no less favourable than his former position. Given the size of the employer and the other circumstances of this case, I am satisfied that it is practical to make such an order provided that such a position exists. In assessing whether such a position exists I must consider the Applicant’s qualifications, skills and experience and whether or not he could, with reasonable training and guidance perform the duties of the position. In assessing whether or not such a position exists I must be satisfied that the terms and conditions associated with that position are reasonably equivalent. It would not be reasonable for the employer to be required to pay significantly more for a position than advertised for that position in order to ensure that the Applicant was reinstated on equivalent terms and conditions. It would not be reasonable to reinstate the Applicant to a position with significantly less responsibility. Reinstatement to a position with significantly less responsibility would not be terms which are “no less favourable.”

[8] I note the submissions of the Applicant that the employer should not be able to thwart a remedy of reinstatement by ensuring that all positions or the actual position occupied by the dismissed employee are filled. I accept that this may be a relevant consideration. However, in the circumstances of this case I am not satisfied that there is evidence to support the contention that the Respondent has acted to thwart a remedy of reinstatement by ensuring that all vacancies are filled. Mr Kellaway, Recruitment Manager, for Metro Trains gave evidence of a significant number of vacancies at the present time and there was also evidence of vacancies at the time of the termination. The real issue in this case is not whether or not there are vacancies but whether or not the vacancies are suitable having regard to the Applicant’s skills, qualifications and experience.

[9] I also note the decision of the Full Bench in Ulan Coal Mines Limited v A. Honeysett and others 5 where the employer argued that the Commissioner erred because he did not identify the particular positions in a particular enterprise to which the dismissed employees could have been redeployed:

[10] The Ulan Coal argument was dismissed by the Full Bench. However, in the Ulan case the Commissioner was satisfied that vacancies commensurate with the skills and qualifications of the employees did exist even if there was no requirement for the Applicant or FWA to specifically identify the particular positions. This is a somewhat more complex question in the present circumstances where we are dealing with a managerial position.

[11] I take these factors into consideration in assessing whether or not reinstatement is practical and appropriate. I also consider the fact that the legislation makes reinstatement the primary remedy and the particular difficulties the Applicant is likely to have in obtaining future employment.

[12] I am also satisfied in the circumstances of this case, where there is no contributory misconduct, that if an order for reinstatement is appropriate, an order for restoration of lost pay pursuant to Section 391(3) would also be appropriate.

[13] Mr Kellaway, Recruitment Manager, for Metro Trains gave evidence concerning vacancies as at 20 September 2012. Mr Kellaway gave evidence of his long experience managing recruitment processes. Mr Kellaway gave evidence that applicants for a position were divided into two groups based upon a comparison of the qualifications and experience outlined in their CV and the requirements of the position. One group of applicants were not considered further and another group were then subjected to a range of other processes including testing and an interview. Mr Kellaway provided an assessment of the Applicant, utilising the CV provided to him by Metro Trains, against the requirements of all of the vacancies as at 20 September 2012. Vacancies for operational positions such as train drivers were not included. It was Mr Kellaway’s assessment that the Applicant was not suitable due to the absence of required qualifications and or relevant experience for each of the vacancies. The Applicant did not challenge the assessment in respect of any specific vacancy. The Applicant did not submit that he was suitable for any specific vacancy. The Applicant did challenge the basis of the assessment of Mr Kellaway in that the Applicant was not interviewed or requested to provide any specific information in respect to his suitability for any of the vacancies.

[14] I accept that given the process followed it is not appropriate to rule out the possibility that the Applicant might be suitable for one of the vacant positions. I also accept that in a situation of redeployment and or of reinstatement allowance should be made for reasonable training or retraining. However, I am satisfied by the evidence of Mr Kellaway that it is more likely than not that none of the current vacant positions are suitable for the Applicant.

[15] The Applicant argued that I should reinstate him because he is 65 years of age and because of his family circumstances he needs to continue in employment and if he is not reinstated will find it difficult to get future employment. I regard these as relevant factors. However, there was nothing in the evidence about the Applicant’s family circumstances which would make reinstatement particularly pressing. Also the Applicant has not been terminated because of any issues of performance and he has skills and experience which will be attractive in the labour market.

[16] I am satisfied that had consultation taken place as required by the Agreement prior to the retrenchment there is a real or significant possibility that an alternative to retrenchment may have resulted. Redeployment or a pathway to redeployment or adjustment to the restructured positions may have resulted. I do not say that redeployment was probable or more likely than not. In the circumstances of this case, given the personal situation of the Applicant, it is possible that the Applicant may have elected to take a lower paid or less responsible position, or that the Respondent may have been persuaded after hearing from the Applicant to modify the proposed positions in the restructure or that the Applicant may have identified a suitable position and convinced the Applicant that he had the required characteristics. In the absence of consultation and the direct involvement of the Applicant there are many possibilities which could not be properly explored and exhausted.

[17] However, given the particular qualifications and experience of the Applicant and the managerial position he occupied I do not consider it appropriate that Metro Trains should be required to create a new position for the Applicant. Having accepted the evidence of Mr Kellaway that there are no suitable vacancies I have decided on balance that reinstatement is not an appropriate remedy.

[18] I now turn to further consider compensation. I consider that compensation is appropriate in the circumstances of this case given the findings I have made about the impact of the failure to consult required by the Agreement.

[19] Nothing in the submissions made by the parties alter the findings I made in respect to compensation in my earlier decision which are set out at paragraph 2 above.

[20] Metro Trains brought no argument to challenge my conclusions that:

[21] The Applicant submits that the income of the Applicant excluding superannuation, but including allowance for private use of a vehicle and infra allowance is approximately $157,000 per annum. The Respondent accepts this estimate except for the inclusion of $30,000 in recognition of the provision of unlimited private use of a fully paid company vehicle. The highest pay rate in the Agreement is $160,134 exclusive of superannuation.

[22] Therefore based on my earlier findings in [PR528877] at paragraph 67, the Applicant would have earned approximately $254,000 in the two years I have estimated he would have continued in employment, excluding superannuation and the provision of the use of the motor vehicle.

[23] The period between the dismissal and the decision in this case is a period of 21 weeks. I will deduct from the earnings which would have occurred during this period if the dismissal had not occurred the 20 weeks paid as severance payment and notice consistent with the Agreement. It is not necessary to consider separately the period between the making of the order and actual payment of compensation given that the Applicant is not employed or likely to be employed in this period.

[24] The Applicant has not earned any income since his termination. I make no deduction for misconduct or failure to make adequate efforts to mitigate his loss. I do consider that a higher than usual allowance for contingency should be made in this situation because of the uncertainty about whether or not the Applicant would have been redeployed. This is consistent with the approach taken in the Full Bench decision in Southcorp Wines Pty Ltd and G MacDonald and M J Seymour 7 and in Lockwood Security Products Pty Ltd and Sulocki and others.8

[25] The Full Bench in Southcorp made this observation:

[26] I have decided that the approach taken by the Full Bench in Lockwood Security Products is appropriate to the circumstances of this case. In that decision the President Justice Giudice, Senior Deputy President Lacy and Commissioner Blair determined that contingency should be applied to the whole amount anticipated to be earned prior to making other deductions because the main source of uncertainty or the main contingency is the estimate of the likelihood of redundancy occurring. This approach differs from the approach normally taken based on the cases Sprigg and Shorten. In the Lockwood case employees were made redundant but the Full Bench found that it was not a genuine redundancy (although this was not the terminology used in the legislation at the time or the words used by the Full Bench).

[27] I have decided to allow for a 66.67% deduction for contingencies given my assessment of the likelihood of an alternative to retrenchment.

[28] This reduces the 104 weeks to 34.63 weeks. I deduct the 20 weeks’ severance and redundancy pay received and this leaves 14.63 weeks remaining.

[29] For the reasons outlined earlier there are no other deductions required.

[30] The cap of 50% of the high income threshold ($123,300) is $61,650.

[31] I have decided not to include allowance for the private use of the motor vehicle. I accept that private use of the motor vehicle is a matter which can be included in income, however, I consider the Applicant’s estimate of $30,000 value of this benefit to be excessive and I have no evidence before me to be able to properly estimate the value. There is some validity in the argument of Metro Trains that it is the benefits under the Agreement which are relevant since it is the Agreement which provides the Applicant with protection from unfair termination. The basis for compensation payment is therefore $2442.31 per week plus 9% superannuation. This is an amount of $35,731 plus superannuation or a total of $38,946.80.

[32] An Order for the payment of $38,946.80 less appropriate taxation within fourteen days will be made. The Respondent will have liberty to apply to vary the payment period.



M. Anthony for the Applicant.

C. Shaw for the Respondent.

Hearing details:



September 25

 1   [2012] FWA 7729 at paragraph 64.

 2   [2012] FWA 7729 at paragraph 65-71.

 3   [2012] FWA 7729 at paragraph 46.

 4   [2012] FWA 7729 at paragraph 48.

 5   [2010] FWAFB 7578.

 6   [2010] FWAFB 7578 at paragraph 30.

 7   PR917245.

 8   Print 908053 per Giudice J, SDP Lacy, Commissioner Blair.

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