[2016] FWC 2720 [Note: This decision has been quashed - refer to Full Bench decision dated 25 January 2017 [[2017] FWCFB 574]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Grant Skinner, Mark Pemberton, Joshua Ross, Ian Raymond Lucas, Kadin Hill, Abigail Bryant, Mareck Preston
v
Asciano Services Pty Ltd T/A Pacific National Bulk
(U2015/9788), (U2015/11732), (U2015/9790), (U2015/9795), (U2015/9798), (U2015/9802), (U2015/9805)

COMMISSIONER JOHNS

MELBOURNE, 4 MAY 2016

Applications for relief from unfair dismissal; whether a case of genuine redundancy.

[1] This decision concerns nine applications made under s 394 of the Fair Work Act (FW Act). Asciano Services Pty Ltd (Asciano/Employer/Respondent), is the respondent to all nine applications filed by:

Applicant

Date dismissal took affect

Date of application

Position

Salary

Grant Skinner

17 July 2015

29 July 2015

Locomotive Driver

$69,028.79

Mark Pemberton

28 August 2015

9 September 2015

Locomotive Driver

$62,977.79

Joshua Ross

17 July 2015

29 July 2015

Locomotive Driver

$69,028.79

Ian Raymond Lucas

10 July 2015

29 July 2015

Locomotive Driver

$74,499.53

Kadin Hill

17 July 2015

29 July 2015

Locomotive Driver

$69,028.79

Abigail Bryant

17 July 2015

29 July 2015

Locomotive Driver

$69,028.79

Mareck Preston

10 July 2015

29 July 2015

Locomotive Driver/Terminal Operator

$71,767.40

Michael Deering*

10 July 2015

28 July 2015

Locomotive Driver

$71,254.76

Adam Smith*

10 July 2015

30 July 2015

Locomotive Driver

$76,902.43

[2] On 1 September 2015 the Employer filed a response to the applications denying that the terminations of the applicants’ employment was unfair because, it said, the dismissals were genuine redundancies.
[3] The applications were heard together on 26, 27 and 30 November 2015. The applicants were represented by Mr Kevin Pryor from the Rail Tram and Bus Industry Union (RTBU/Union). Mr Pryor did not require permission to represent the applicants. The respondent was represented by Mr Simon Meehan of Counsel. Permission was granted to the respondent to be represented because the Commission, as presently constituted, was satisfied that the matter was invested with sufficient complexity such that the matter would proceed more efficiently if the respondent was represented 1.
[4] Mr Meehan called seven witnesses:

each of who were examined in chief by Mr Meehan, and subsequently cross examined by Mr Pryor.
[5] Mr Pryor called the nine applicants as witnesses in the proceedings:

each of who were examined in chief by Mr Pryor, and subsequently cross examined by Mr Meehan.
[6] Following the hearing, the parties filed closing submissions as follows:

[7] Although, the final submissions were filed on 5 February 2016, at that time, the Commission was advised that proceedings relating to Messrs Deering and Smith, were likely to be resolved and the Commission should not publish a decision until the outcome of those discussions were finalised. On 7 April 2016, Notices of Discontinuance were filed in relation to each of the Deering and Smith matters. Hence the Commission is now in a position to finalise the outstanding applications.

Background

[8] The following matters are either agreed upon or not otherwise contested by the parties:

[9] Mr Pryor conceded all points under the heading ‘CONSULTATION’ in the respondent’s submissions 5, subject to the following amendment of point 32:

[10] However despite conceding the facts under the ‘CONSULTATION’ heading, Mr Pryor pressed issues under s. 389(1)(b) of the Act.
[11] Mr Pryor conceded the points mentioned under the title ‘REASONABLENESS OF REDEPLOYMENT’ in the respondent’s submissions 7 (subject to underlined amendments (below)):

...

53. Mr Preston’s employment was terminated on 10 July 2015. He was paid his termination of employment entitlements. See page 295 of the Bundle. His termination pay included pay in lieu of notice of termination and redundancy pay.

Mr Lucas

54. Mr Lucas (from the Cootamundra Depot) did not submit an expression of interest for voluntary redundancy or to transfer to one of the available positions at Moss Vale and Enfield. He did not apply for any of the available positions listed in the 29 May 2015 current opportunities list (pages 014 to 015 of the Bundle). This was a list of all available positions at the Respondent as at 29 May 2015 and at all other enterprises associated with the Respondent. 10

56. On 24 June 2015 during a meeting to inform him that he had been selected for involuntary redundancy, Mr Lucas was given a termination letter (page 177 of the Bundle). The letter informed him about the start of a 14-day redeployment period, that if he was not redeployed, then his employment would terminate due to redundancy and he would be paid in lieu of notice calculated from the end of the redeployment period. Attached to the termination letter was a list of current opportunities for employment within the Asciano Group as at 23 June 2015. See pages 179 to 181 of the Bundle. This was a list of all available positions at the Respondent and at all other enterprises associated with the Respondent as at 23 June 2015.

57. As Mr Lucas said during the 24 June 2015 meeting that he wanted to be contacted by Asciano careers (see the Statement of Hopwood, paragraph 36, and the Statement of King, paragraph 50), on 26 June 2015 Mr King sent his name to Aleisha Chiba by email. See pages 253 and 196 of the Bundle and the Statement of King, paragraph 52.

58. During the 24 June 2015 meeting with Mr Lucas, he said that he would speak to his wife about a move to a role at Enfield or Moss Vale. See the Statement of Hopwood, paragraph 36. He also said that he wanted to explore job options in Queensland with Asciano careers, and was informed that he would not be required to work out his notice period in order to allow him time to look at redeployment opportunities. See the Statement of King, paragraph 50. 11

60. Mr Lucas’s employment was terminated on 10 July 2015. He was paid his termination of employment entitlements. See page 294 of the Bundle. His termination pay included pay in lieu of notice of termination and redundancy pay.

Mr Pemberton

61. Mr Pemberton (from the Cootamundra Depot) did not submit an expression of interest for voluntary redundancy or to transfer to one of the available positions at Moss Vale and Enfield. He did not apply for any of the available positions listed in the 29 May 2015 current opportunities list (pages 014 to 015 of the Bundle). This was a list of all available positions at the Respondent as at 29 May 2015 and at all other enterprises associated with the Respondent.

72. Mr Pemberton’s employment was terminated on 28 August 2015. He was paid his termination of employment entitlements. See page 310 of the Bundle. His termination pay included redundancy pay.

Mr Hill

89. Mr Hill (from the Parkes Depot) did not submit an expression of interest for voluntary redundancy or to transfer to one of the available positions at Moss Vale and Enfield. He did not apply for any of the available positions listed in the 29 May 2015 current opportunities list (pages 014 to 015 of the Bundle). This was a list of all available positions at the Respondent and at all other enterprises associated with the Respondent as at 29 May 2015.

90. During the consultation period 1 to 14 June 2015 but prior to any decision being made by the Respondent to select employees for involuntary redundancy, Mr Hill was one of 6 candidates from the Parkes Depot who applied for a vacant role for a Shift Manager based at the Parkes Depot. He was unsuccessful. See the Statement of Thornhill, paragraph 25. 13

92. On 3 July 2015 during a meeting to inform him that he had been selected for involuntary redundancy, Mr Hill was given a termination letter (page 272 of the Bundle). The letter informed him about the start of a 14-day redeployment period, that if he was not redeployed, then his employment would terminate due to redundancy and he would be paid in lieu of notice calculated from the end of the redeployment period. Attached to the termination letter was a list of current opportunities for employment within the Asciano Group as at 1 July 2015. See pages 274 to 277 of the Bundle. This was a list of all available positions at the Respondent and at all other enterprises associated with the Respondent as at 1 July 2015.

93. As Mr Hill said during the 3 July 2015 meeting that he did not want to be contacted by Asciano careers, Mr King did not include his name on the list of Parkes Depot employees sent to Aleisha Chiba by email. See pages 252 and 197 of the Bundle and the Statement of King, paragraph 71. 14

98. On 3 July 2015 during a meeting to inform him that he had been selected for involuntary redundancy, Mr Ross was given a termination letter (page 254 of the Bundle). The letter informed him about the start of a 14-day redeployment period, that if he was not redeployed, then his employment would terminate due to redundancy and he would be paid in lieu of notice calculated from the end of the redeployment period. Attached to the termination letter was a list of current opportunities for employment within the Asciano Group as at 1 July 2015. See pages 256 to 259 of the Bundle. This was a list of all available positions at the Respondent and at all other enterprises associated with the Respondent as at 1 July 2015.

99. As Mr Ross said during the 3 July 2015 meeting that he wanted to be contacted by Asciano careers, Mr King sent his name to Aleisha Chiba by email. See pages 252 and 197 of the Bundle and the Statement of King, paragraph 71.

100. On 3 July 2015, Perry Karavas of Asciano careers was given the task of contacting Mr Ross. See the Statement of Karavas, paragraph 7.  16

102. Mr Thornhill met with Mr Ross on 9 July 2015, informed him that a labour hire firm, Momentum, would be used by the Respondent for labour hire needs. He gave him the business card of a person from Momentum and invited him to register with Momentum. See the Statement of Thornhill, paragraphs 38 and 39.

106. On 3 July 2015 during a meeting to inform her that she had been selected for involuntary redundancy, Ms Bryant was given a termination letter (page 266 of the Bundle). The letter informed her about the start of a 14-day redeployment period, that if she was not redeployed, then her employment would terminate due to redundancy and she would be paid in lieu of notice calculated from the end of the redeployment period. Attached to the termination letter was a list of current opportunities for employment within the Asciano Group as at 1 July 2015. See pages 268 to 271 of the Bundle. This was a list of all available positions at the Respondent and at all other enterprises associated with the Respondent as at 1 July 2015.

107. During the 3 July 2015 meeting, Ms Bryant asked whether there was a redeployment opportunity at Mudgee, which there was not. See the Statement of King, paragraph 70.

108. As Ms Bryant said during the 3 July 2015 meeting that she wanted to be contacted by Asciano careers, Mr King sent her name to Aleisha Chiba by email. See pages 252 and 197 of the Bundle and the Statement of King, paragraph 71.

109. On 3 July 2015, Perry Karavas from Asciano careers was given the task of contacting Ms Bryant. See the Statement of Karavas, paragraph 7.  18

115. On 3 July 2015 during a meeting to inform him that he had been selected for involuntary redundancy, Mr Skinner was given a termination letter (page 260 of the Bundle). The letter informed him about the start of a 14-day redeployment period, that if he was not redeployed, then his employment would terminate due to redundancy and he would be paid in lieu of notice calculated from the end of the redeployment period. Attached to the termination letter was a list of current opportunities for employment within the Asciano Group as at 1 July 2015. See pages 262 to 265 of the Bundle. This was a list of all available positions at the Respondent and at all other enterprises associated with the Respondent as at 1 July 2015.  20

117. As Mr Skinner said during the 3 July 2015 meeting that he did not want to be contacted by Asciano careers, Mr King did not include his name on the list of Parkes Depot employees sent to Aleisha Chiba by email. See pages 252 and 197 of the Bundle and the Statement of King, paragraph 71.

118. Mr Thornhill met with Mr Skinner on 9 July 2015, and informed him that a labour hire firm, Momentum, would be used by the Respondent for labour hire needs. He gave him the business card of a person from Momentum and invited him to register with Momentum. See the Statement of Thornhill, paragraphs 38 and 39.

119. Mr Skinner’s employment terminated on 17 July 2015. He was paid his termination of employment entitlements. See page 298 of the Bundle. His termination pay included pay in lieu of notice of termination and redundancy pay.  21

[12] The applicants submit they were unfairly dismissed and seek an Order that they be re-instated.

Protection from Unfair Dismissal

[13] An order for reinstatement or compensation may only be issued where the Commission is satisfied the applicant was protected from unfair dismissal at the time of the dismissal. In the present matters it is not in dispute that each of the applicants were so protected (the respondent concedes the same). 22
[14] Further, there is no dispute that the applicants had completed the minimum employment period, and are covered by the Bulk Rail EA (again the respondent concedes the same). 23 Consequently, the Commission, as presently constituted, is satisfied that each of the applicants was protected from unfair dismissal.
[15] I will now consider if the dismissal of the applicants by the respondent was unfair within the meaning of the FW Act.

Was the Dismissal Unfair?

[16] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:

A person has been unfairly dismissed if the FWC is satisfied that: (a) the person has been dismissed; and

Were the applicants dismissed?

[17] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the FW Act. Section 386 contains the relevant definition. In this present matter this is not an issue in dispute (the respondent concedes the same). 24
[18] Consequently, the Commission, as presently constituted, finds that the applicants were dismissed from their employment within the meaning of s.386 of the FW Act.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[19] A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (Code). However, the Code is only relevant if the employer is a small business. The respondent is not. 25 Consequently, compliance with the Code is not a relevant consideration.

Was the dismissal a genuine redundancy?

[20] The respondent submits the Commission should dismiss the applications because the dismissals were a case of genuine redundancy. Section 389 of the FW Act defines the meaning of genuine redundancy:

“389 Meaning of genuine redundancy

[21] Given that the circumstances of each applicant differ, I will consider the issue of genuine redundancy for each applicant separately.

Mr Grant Skinner

[22] Mr Skinner commenced employment at Asciano on 9 January 2012, at the Parkes Depot as a Trainee Locomotive Driver.

Was the applicant’s job no longer required to be performed?

[23] To be satisfied the dismissal was a case of genuine redundancy, the Commission must be satisfied the role of Locomotive Driver (level 3) was no longer required to be performed by anyone because of operational changes to the respondent at the Parkes Depot 26. While the applicant makes the point that the functions performed by him continued to be performed after the termination of his employment, it was not seriously contested that the job of locomotive driver was no longer required27.
[24] The FW Act does not define the term “operational requirements”. It is a broad term that permits consideration of many matters including the state of the market in which the business operates and the application of good management to the business 28. Some examples of changes in operational requirements include a downturn in trade that reduces the number of employees required and the employer restructuring the business to improve efficiency including the redistribution of tasks done by a particular person between several other employees thus resulting in the person’s job no longer existing. 29
[25] The onus is on the employer to prove that, on the balance of probabilities, the redundancy was due to changes in operational requirements. 30
[26] The respondent submitted that operational changes were implemented (Exhibit R1 31) and this was accepted by Mr Pryor32. Consequently, the Commission, as presently constituted, accepts the respondent’s submissions that as a result of the reduction in customer demand in exports of grain33, the loss of NRE Limited due to its closure, and the loss of another site from Centennial Coal34, a reduction in workload altered its operational requirements and resulted in labour rationalisation. Therefore, the Commission, as presently constituted, is satisfied the roles of each of the applicants were no longer required to be performed by anyone because of operational changes.

Did the respondent comply with any consultation obligations

[27] I must now consider whether the respondent was obliged by a modern award or enterprise agreement to consult with the applicants about the redundancy prior to the dismissal.
[28] It is common ground between the parties that, at the time of the dismissal, the Bulk Rail EA applied to the employment relationship.
[29] The consultation provisions in the Bulk Rail EA appear at Clause 30. It is important to set out the clause of the Award:

[30] The respondent concedes it had a duty to consult and submits that for the purpose of section 389(1) (b) of the Act, it complied with its obligations under Clause 30 of the Bulk Rail EA to consult all of the applicants about their redundancy. 35

Was there consultation?

[31] Senior Deputy President Hamberger summed up the obligations under the Bulk Rail EA in Gilbert & Ors v. Asciano Services Pty Ltd t/a Pacific Nation Bulk Rail [2015] FWC 364 at [11]:

[32] In its final closing written submissions the RTBU submitted that after the meetings held on 1-3 July 2015, the respondent did not consult Mr Skinner about progressing labour rationalisation. Further, it submitted that during the meeting held on 3 July 2015 the respondent gave no consideration to the views of the employees or the RTBU. The RTBU submitted that an application for an extension of time to allow the Union to assist in finding possible alternate work within the Asciano enterprise/entities was denied by the respondent. However, even if that is true, the Union has not made out a case that, the failure to afford it an extension of time, caused the respondent to be in breach of the Bulk Rail EA.
[33] Mr Skinner gave evidence that he did not receive a feedback form at the 1-2 June meetings. The Union says this evidences the respondent’s failure to adhere to its obligations under the Bulk Rail EA.
[34] The respondent submits a meeting was held on 27 May 2015 giving advanced notice to Mr Pryor and Mr Wright of the RTBU, followed by the written notification given to both the Unions and Employees on 29 May 2015 (which is not contested). 36 It is submitted that on many occasions Mr Skinner was offered a voluntary redundancy opportunity with the possibility of redeployment to Moss Vale or Enfield, both of which he rejected.37
[35] As previously mentioned, Mr Pryor accepted the factual basis of the respondent’s submissions in Exhibit R1 under the heading ‘CONSULTATION”. It is clear from these facts that the obligations of the employer under the Bulk Rail EA to consult with employees and unions were in fact adhered to. Mr Pryor accepted as much at one point in time 38, before raising the issue of the Union’s request for an extension of time which was rejected39. However the Unions and employees were offered an opportunity to voice their concerns on more than one occasion. In Mr Skinner’s case he asked not to be contacted by the careers department of Asciano40. Further, Asciano gave advanced notice to the RTBU of their upcoming intentions, which essential allowed the RTBU an opportunity to raise issues in relation to consultation from 29 May till 17 July 2015.
[36] It is well established that:

[37] It might be said that, the manner in which the consultation was conducted in relation to Mr Skinner could have been done so in a more productive and considerate manner, however, the Commission as presently constituted, is satisfied the steps taken by the employer satisfied their obligations under the Bulk Rail EA (particularly given the lack of cooperation of Mr Skinner) and that they were meaningful to the extent they communicated the nature of the change, the reasons, timing and other relevant information. In the present circumstances the employer’s rejection to the request for an extension did not amount to a failure to comply with its consultancy obligations.

Were there reasonable prospect of redeployment?

[38] The first two elements of s. 389 are affirmative elements which generally apply to the conduct of the employer, essentially determining whether the reasons provided by the employer for the dismissals are sufficient and whether or not the employer sufficiently provided consultation to the employee as per the Agreement or Award. In the application of Mr Skinner, the employer has satisfied both those elements.
[39] The third element goes beyond the duties and obligations of the employer and also places weight upon the actions of the individual employees. Consequently, the consideration of the reasonableness of redeployment involves an examination of the actions which the employer undertook in the pursuit of redeployment, both in the broader application amongst employees but also the individual employee. Further, the actions of the employee, their conduct and approach to redeployment are also to be the subject of close scrutiny.
[40] It was asserted by the RTBU that redeployment of Mr Skinner would have been reasonable in all circumstances. Further, the Union submitted that the respondent failed to advise Mr Skinner of the possible VR Swaps at the Werris Creek Depot, Junee Intermodal Depot, Gunnedah Coal Depot and the possible VR Swap with an employee from the Bathurst Depot. It is accepted that at the meeting of the 3 July 2015, Mr Skinner rejected the opportunity to make an application to the positions available in Moss Vale or Enfield 43 or any other positions available on the list of opportunities provided in the 29 May Notice44.
[41] In assessing the applicant’s conduct it is relevant that at the meeting on 3 July 2015 (with Mr King and Mr Thornhill), Mr Skinner enquired about whether there were any vacancies at Mudgee, Werris Creek, or Hunter Bulk Terminal in Newcastle. He was informed there were no position available. 45 The RTBU submitted this was an inaccurate reflection of the positions which were available at that time. Under cross examination, Mr King conceded that he had knowledge of a possible voluntary redundancy in Werris Park and he could have made the applicant aware of this possibility.46
[42] The Respondent submits that Mr Skinner expressed his disinterest in a transfer to Enfield or Moss Vale. Further, he did not submit in writing an expression of interest for redeployment to any of the available sites. He informed the respondents that he did not want to be contacted by Asciano careers at which point it was of the respondent’s understanding that Mr Skinner had no interest in any of the available sites (as he took no further steps to pursue options that could have been made available to him by Asciano careers).
[43] Given Mr Skinner’s lack of interest in redeployment, it would not be reasonable to expect an employer to go to lengths greater than what the respondent did in the present matter. Mr Skinner conceded he showed no interest in the available positions as they were not suitable to his circumstances, also, the employer handed to the employee an expression of interest form, which needed to be returned if employees were interested in redeployment. Mr Skinner did not express interest in any of the available positions.
[44] Consequently, the Commission, as presently constituted, is satisfied that it would not have been reasonable in all the circumstances to redeploy Mr Skinner.

Mr Mark Pemberton

[45] Mr Pemberton commenced employment at Asciano on 20 August 2012, at the Cootamundra Depot as a Trainee Locomotive Driver.
[46] Mr Pemberton conceded under cross-examination that he received the memorandum of 29 May 2016 notifying him of the impeding significant changes 47, he was also aware of the meetings that were conducted between the Union and the respondent in regards to these changes48. Further, he conceded he was aware of the expression of interest form provided, and confirmed he received the form49. Mr Pemberton also confirmed he received the feedback form provided in an email from Ms Pia Dish on 2 June 2015, which Mr Pemberton did not fill in or submit to the employer50. Mr Pemberton confirmed that he received the email of 2 June 2015, from Mr Cowan, advising of the upcoming labour rationalisation, and the increased vacancies at Moss Vale and Enfield, inviting employees to contact their HR Representative if they are interested51. Mr Pemberton submitted he was unable to attend the meetings of 1-3 June 2015 as he was ill52, but conceded that a telephone conversation informing him of the labour rationalisation, and opening of new positions at the above mentioned sites, to which the expression of interest form was to be completed if he was interested53. I am satisfied, by providing written notice addressing the concerns of the Unions and employee, the respondent met its consultation obligations under the Bulk Rail EA.
[47] A meeting was held on 24 June 2015 at which Mr Pemberton was informed he would be made involuntary redundant, due to his low KSA (knowledge, skills and abilities) Score. He requested that a meeting be held in relation to discussing and disclosure of the KSA scores, to which he then stated he could not attend and no further action was taken by either party 54. The applicant made a decision to apply for the Moolabin position on 29 June 2015 as it suited his circumstances, and conceded he was only interest in that position55.
[48] The respondent submits the applicant took no action demonstrating interest in any other positions available. It also submits that the only position that Mr Pemberton was interested in was one where the respondent rejected his application due to his lack of qualifications. The respondent submitted this did not amount to a breach of their obligations, and the dismissal was a genuine redundancy.
[49] Given the applicant’s admission that he was only interested in the Brisbane sites, the respondent’s decision, that another applicant was better qualified for the position does not amount to a breach of their obligations under the Bulk Rail EA.
[50] Consequently, the Commission, as presently constituted, is satisfied that it would not have been reasonable in all the circumstances to redeploy Mr Pemberton.

Mr Joshua Ross

[51] Mr Ross commenced employment at Asciano on 9 January 2012, at the Parkes Depot as a Trainee Locomotive Driver.
[52] Mr Ross was subject to a similar consultation process as Mr Skinner, accordingly I am satisfied the respondent fulfilled its duty to consult. It is then left to determine whether it would have been reasonable to redeploy Mr Ross.
[53] Mr Ross alleges that at the meeting of 3 July 2015 with Mr Thornhill and Mr Daley, he expressed interest to the Moss Vale positions. He says Mr Daley responded that the positions had all been filled. Further, the Union submitted that the respondent’s careers team was complacent in not contacting the applicant on his personal phone number, when the respondent contacted him on that number ordinarily, as opposed to his work number. 56
[54] The respondent submitted, that Mr Daley did not state in the meeting of 3 July 2015, that the Moss Vale positions were full. The respondent submitted that, such a statement would contradict what was conveyed in the memorandum of 29 May 2015, and what was put to some of the other applicants, repeatedly throughout the consultation process. Further, the respondent submitted that, had the applicant not removed the SIM card from the work phone and no longer used it, it would have been obvious that Asciano careers were in fact trying to contact him to assist him with possible redeployment. 57
[55] Mr Ross conceded he received the memorandum of 29 May 2016, which informed that there were 10 full time positions available at Moss Vale and 27 full time positions at Enfield 58. In these circumstances it is most unlikely that the respondent would tell one employee (namely, Mr Ross) the positions in Moss Vale were full when in fact they were not. Further, the applicant had taken note of the Memo and was aware of the vacant positions in Moss Vale, he then asked that he be contacted by Asciano careers. In my view he should have recognised that it might have been likely he would be contacted on the work number provided to him. No action was taken by Mr Ross in contacting Asciano careers or informing the respondent that he had not been contacted.
[56] Mr Ross’ willingness to be redeployed was limited to a question, at the meeting of the 3 July, as to whether or not there were available positions at Moss Vale, and no written expression of interest was received from Mr Ross. Further, the evidence provided by the respondent as to why Mr Daley would not have put it to Mr Ross that the positions were full, was preferable to the account provided by Mr Ross.
[57] Consequently, the Commission, as presently constituted, is satisfied that it would not have been reasonable in all the circumstances to redeploy Mr Ross.

Mr Ian Raymond Lucas

[58] Mr Lucas commenced employment at Asciano around 2004, at the Parkes Depot as a Trainee Locomotive Driver.
[59] It is undisputed that Mr Lucas received the feedback form and the notices of 2, 10 and 18 June 2015 by email. Mr Lucas stated in cross examination that he is computer illiterate and I am satisfied the respondent was aware of Mr Lucas’ inability to access and use emails.
[60] The RTBU argued that the employer sent the memorandum of 29 May 2015 by post because the employer was aware of the fact that the applicant was not confident with emailing, and stressed the point that Asciano would organise computer aid for Mr Lucas when conducting first aid courses at work.
[61] The respondent submitted that it complied with its consultation obligations as it had provided notice to the employee in writing. Further, the applicant accepted that a phone conversation occurred between Mr Hopwood and himself on 4 June 2015; however the details of this conversation are a matter of dispute between the parties. RTBU put it to Mr Lucas that the phone call involved discussions surrounding the topic of labour rationalisation and putting Mr Lucas on notice of the possibility of voluntary redundancy.
[62] Mr Lucas did not refute, neither did he recall the details of the discussion. Despite this, looking at the Bulk Rail EA, it is clearly outlined that the duty of the employer in consultation is to inform the relevant employees and unions “in writing” of the proposed changes. No limits or restrictions are placed upon this provision and the decision of the employer to contact Mr Lucas’ by email cannot be taken to be a contravention of the agreement. I am therefore satisfied that the employer’s consultation requirements were adhered to. It was not submitted that the email was never received into Mr Lucas’ email, therefore it is taken that the email was in fact received and therefore provided.
[63] Mr Lucas in cross examination stated that the only location he was interest in being redeployed to was Moss Vale 59. Mr Lucas stated he was unable to submit an expression of interest before 24 June 2015, as he was not made aware that he was going to be made forced redundant. Further, it was asserted that he was informed that numbers at Moss Vale were full, and for this reason he did not submit an expression of interest.
[64] The employer submits that Mr Lucas’ evidence should not be accepted given the contradictory nature of his answers in cross examination to the statements made in Exhibit A6. Specifically, in his statement at [43] stating that he was asked about whether he would like to be transferred to either Moss Vale or Enfield compared with is oral evidence that he was not asked whether or not he would like to be transferred to Moss Vale or Enfield, and also could not account for how the talk of Moss Vale was brought up in the meeting 60. Considering the contradictory nature of the evidence, Mr Lucas’ witness statement is preferable to his answers in cross-examination and are taken to reflect a true recount of what was said at the meeting, as the same recount was provided in the statement of Mr Skinner, that on 3 July 2015 (after the meeting of Mr Lucas) i.e. Mr King mentioned to him that there are positions available in Moss Vale61.
[65] Given that it is now accepted that the proposition of a transfer to Moss Vale was put to Mr Lucas, it would seem unlikely that the employer would propose a redeployment opportunity, to then turn it down and claim it is full moments later. Mr Lucas was made aware on the memorandum of 29 May 2015 of the opportunities in Moss Vale, and was then asked about these same redundancies on the meeting of 24 June 2015. Mr Lucas expressed he would like to be contacted by Asciano careers 62.
[66] On 30 June 2015 he was contacted by Asciano careers, where in that conversation he was advised ‘if there are positions available (at Moss Vale)…they will be available on the Asciano website” 63. As mentioned above the actions of an employee are considered when determining if redeployment was reasonable. Mr Lucas took no further action to inspect whether positions in Moss Vale were available, it is acceptable that one might not be capable of using a computer or lack an internet connection, however when being directed to check the website for possible availabilities, it would seem reasonable that an opportunity to access internet or a computer could have been sufficiently created without disruption of one’s ordinary daily routine. Further, the applicant took no action to contact the respondent regarding the possibility of Moss Vale positions being vacant, or to flag his difficulties with accessing the job opportunities online.

[67] I acknowledge that Mr Lucas, of all the applicants, was the closest to expressing some interest in redeployment to Moss Vale 64. However, the expression made by Mr Lucas, was not made in writing, which was crucial to the validity of an expression of interest. In these circumstances, despite Mr Lucas’ queries about redeployment to Moss Vale, his failure to make an expression in writing weighs in favour of the respondent.

[68] The RTBU did not press the allegations that the possible VR Swaps with Mr Ronald Gustowski and Mr Mark Beechie were a reasonable form of redeployment.
[69] In summary, I am satisfied that the employer met its consultation obligations under the Bulk Rail EA. The consultation process fulfilled the necessary requirements, and could not have accounted for an employee whom has no internet/email connection. Further, the evidence provided by the respondent as to why Mr King would not have denied positions being available at Moss Vale, was preferable to the account provided by Mr Lucas.
[70] Consequently, the Commission, as presently constituted, is satisfied that it would not have been reasonable in all the circumstances to redeploy Mr Lucas.

Mr Kadin Hill

[71] Mr Hill commenced employment at Asciano on 9 January 2012, at the Parkes Depot as a Trainee Locomotive Driver.
[72] Mr Hill conceded the following in cross examination; he attended the meeting on 1 June 2015 at the Parkes depot where a PowerPoint presentation was shown, which reflected the terms and conditions of consultation, transfer opportunities to other depots, including Moss vale and Enfield, information on voluntary redundancies, and at the end of that meetings, another meeting was held with other employees and the Unions 65. Mr Hill did not refute nor accept that he received an email from Mr Cowan on 2 June66, he did see the memorandum of the 10 June 2015, however did not specify on which date67. He further accepted that a meeting was held on 3 July 2015, with Mr Daly, Ms K Smith, and with Mr Symonds accompanying Mr Hill as a representative68. At this meeting Mr Hill rejected the notion of moving to a position at Moss Vale, Enfield, or any of the other locations attached to the letter of termination69. Mr Hill also accepted that the positions attached to his statement, which he claimed were the employer’s advertisements of his old position, were in fact different positions to his70.
[73] Mr Hill was informed in writing of the major work place changes to occur at the workplace. Mr Hill attended three separate meetings. The first meeting was held with the employer, where he was shown a PowerPoint presentation explaining in detail the process of consultation and voluntary redundancy. The second meeting was held with the Unions, which discussed the same topics mentioned by the employer. The third meeting which informed Mr Hill of his redundancy occurred on 3 July, where he was made aware of all redeployment opportunities, and communicated he was not able to move due to his current circumstances. He did not file an expression of interest nor pursue any further action in requesting redeployment, but in fact turned down offers of redeployment by the respondent.
[74] Given his apparent lack of interest in redeployment, it would not have been reasonable for the employer to redeploy Mr Hill.
[75] Consequently, the Commission, as presently constituted, is satisfied that it would not have been reasonable in all the circumstances to redeploy Mr Hill.

Ms Abigail Bryant

[76] Ms Bryant commenced employment at Asciano on 22 August 2011, at the Parkes Depot as a Trainee Locomotive Driver.
[77] Ms Bryant’s circumstances are of similar nature to Mr Hill. In cross examination she conceded that she attended the meeting of 1 June 2015 at the Parkes depot where a PowerPoint presentation was shown, which reflected the terms and conditions of consultation, transfer opportunities to other depots, including Moss vale and Enfield, information on voluntary redundancies, and at the end of that meeting, another meeting was held with other employees and the Union 71. Ms Bryant did not refute nor accept that she received update emails from Asciano as she was away on holiday72. Ms Bryant attended a meeting on 3 July 2015 where she was handed the letter of Termination and a list of available opportunities, none of which were suitable to her circumstances73.
[78] Ms Bryant was informed in writing of the major work place changes to occur at the workplace. Ms Bryant attended three separate meetings. The first meeting was held with the employer, where she was shown a PowerPoint presentation explaining in detail the process of consultation and voluntary redundancy. The second meeting was held with the Unions, which discussed the same topics mentioned by the employer. The third meeting of 3 July 2015 which informed Ms Bryant of her redundancy, where she was made aware of all redeployment opportunities, and communicated she was not able to move due to her current circumstances. She did not file an expression of interest nor pursue any further action in requesting redeployment, but in fact turned down offers of redeployment by the respondent.
[79] I am satisfied that at the time of the termination, the employer satisfied its obligation to consult and that Ms Bryant did not wish to be redeployed to any of the available positions. Mention was made of redeployment to the Bathurst Depot, but in these circumstances where Bathurst is 4 hours away from Parkes, it could not be deemed reasonable to redeploy Ms Bryant within the respondent’s enterprise.
[80] Consequently, the Commission, as presently constituted, is satisfied that it would not have been reasonable in all the circumstances to redeploy Ms Bryant.

Mr Mareck Preston

[81] Mr Preston commenced employment at Asciano on 8 November 2010, at the Nowra Depot as a Trainee Locomotive Driver. Mr Preston was then transferred to the Cootamundra Depot as a level 3 Terminal Operator and Trainee Driver in approximately January 2012.
[82] Mr Preston’s circumstances are of similar nature to Mr Hill. In cross examination he conceded the following. He attended the meeting of the 3 June 2015 at the Cootamundra Ex-Services Club where a PowerPoint presentation was shown, which reflected the terms and conditions of consultation, transfer opportunities to other depots, including Moss vale and Enfield, information on voluntary redundancies, and at the end of that meeting, another meeting was held with other employees and the Union 74. Mr Preston accepted that the emails sent out in the period between the 3 June and the next meeting of 24 June 2015, were sent to a collective recipient “Bulk Rail” in which his email was included. Mr Preston stated in cross-examination he had not accessed his emails for 9 months as he was not able to log in75. Mr Preston attended a meeting on 24 June where he was handed the letter of Termination and a list of available opportunities, none of which were suitable to his circumstances76.
[83] Mr Preston was informed in writing of the major work place changes to occur at the workplace. Mr Preston attended two separate meetings 77. The first meeting was held with the employer, where he was shown a PowerPoint presentation explaining in detail the process of consultation and voluntary redundancy. The second meeting on 24 June 2015 which informed Mr Preston of his redundancy, where he was made aware of all redeployment opportunities, and Mr Preston stated at the outset of the meeting none of the available opportunities were suitable to him. He did not file an expression of interest nor pursue any further action in requesting redeployment, but in fact turned down offers of redeployment by the respondent.
[84] Further, the carelessness in allowing a work email to go unattended for a period of 9 months, does not constitute sufficient reasoning as to why the emails sent from the respondent were not read by the applicant. Additionally, and more importantly the applicant’s behaviour at the meeting on 24 June 2015 did not reflect positively upon Mr Preston. It is of course understandable that being made redundant would lead to discomfort to one’s life, however the conduct of Mr Preston during this meeting could not be taken to be the conduct of an employee who is seeking redeployment.
[85] Mr Preston was contacted by Asciano Careers around the 30 June 2015, to discuss available opportunities for redeployment, at which point Mr Preston again stated he was not interested. 78
[86] The respondent put forward a number of opportunities for Mr Preston to be redeployed, or at least express interest in redeployment, including in Moss Vale and Enfield, to which the applicant rejected all available opportunities due to his circumstances.
[87] Consequently, the Commission, as presently constituted, is satisfied that it would not have been reasonable in all the circumstances to redeploy Mr Preston.

Conclusion

[88] I am satisfied that the dismissal of each of the applicants was a case of genuine redundancy. Accordingly their applications for an unfair dismissal remedy are dismissed. Orders in relation to each matter, reflecting the same, will be issued with this decision.

COMMISSIONER

Appearances:

Mr Kevin Pryor (RTBU) for the applicant.

Mr Simon Meehan of counsel for the respondent.

Hearing Details:

Sydney,

26, 27 November,

2015

Forbes,
30 November,

2015

 1   Section 596(2)(a) of the FW Act

 2   http://asciano.com.au/asciano/business-partnerships-and-supply-chain-management

 3   Section 382(a) of the FW Act

 4   Transcript PN 92-112

 5   Exhibit R1

 6   Transcript PN 179-185

 7   Exhibit R1

 8   Transcript PN 191-228

 9   Transcript PN 235-236

 10   Transcript PN 262-267

 11   Transcript PN 287-292

 12   Transcript PN 312-335

 13   Transcript PN 463-468

 14   Transcript PN 471-174

 15   Transcript PN 479-483

 16   Transcript PN 485-490

 17   Transcript PN 495-50

 18   Transcript PN 505-109

 19   Transcript PN 519-525

 20   Transcript PN527-530

 21   Transcript PN 537-542

 22   Exhibit R1 at 4(i)

 23   Exhibit R1 at 4(f),(g),(h)

 24   Exhibit R1 at 4(d)

 25   Exhibit R1 at 4(e)

 26   Exhibit R1 at 11-12

 27   Transcript PN 99-102

 28   Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, 373.

 29   Explanatory Memorandum, Fair Work Bill 2008, [1548].

 30   Keiselbach v Amity Group Pty Ltd (unreported, AIRC, Hamilton DP, 9 October 2006) PR973864, [34].

 31   At 7-19

 32   Transcript PN 93-113

 33   Exhibit R1 at 8

 34   Ibid at 13

 35   Exhibit R1 at para 20

 36   Transcript PN 179-185

 37   Transcript PN 2780

 38   Transcript PN 58

 39   Transcript PN130

 40   Exhibit A8 at Para 30

 41   Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company (1998) 88 IR 202, 218; cited in

Steele v Ennesty Energy Pty Ltd T/A Ennesty Energy [2012] FWA 4917 (unreported, Jones C, 21 June 2012) [20].

 42   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v

 43   Transcript PN 2776

 44   Transcript PN 2788

 45   Exhibit R4 at Para 69

 46   Transcript PN 898-906

 47   Transcript PN 2106

 48   Transcript PN 2114

 49   Transcript PN 2126

 50   Transcript PN 2143-2145

 51   Transcript PN 2161

 52   Transcript PN 2163

 53   Transcript PN 2170-2176

 54   Exhibit A4 at para 8

 55   Transcript PN 2260-2261

 56   Applicant’s Final Closing Submissions at para 153-156

 57   Closing Submissions of Respondent on Jurisdiction at para 99

 58   Transcript PN 2834

 59   Transcript PN 2584-2585

 60   Transcript PN 2597-2604

 61   Exhibit A8 at para 31

 62   Exhibit A6 at para 48

 63   Exhibit A6 at para 76

 64   Exhibit A6 at para 44 and 75

 65   Transcript PN 3057-3064

 66   Transcript PN 3072-3074

 67   Transcript PN 3080

 68   Transcript PN 3090-3092

 69   Transcript PN 3103-3106

 70   Transcript PN 3128-3129

 71   Transcript PN 2969-2981

 72   Transcript PN 2991

 73   Transcript PN 2989

 74   Transcript PN 2425-2426

 75   Transcript PN 2447-2449

 76   Transcript PN 2501-2504

 77   Transcript PN 2424

 78   Transcript PN 2513

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