DECISION

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

Ms Deborah Hallam
v
Sodexo Remote Sites Australia Pty Ltd
(U2017/3968)

Application for relief from unfair dismissal – jurisdictional objection – redeployment not reasonable in all the circumstances – genuine redundancy.

INTRODUCTION

[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) was made by Ms Deborah Hallam (the Applicant) alleging that her dismissal from Sodexo Remote Sites Australia Pty Ltd (the Respondent) was harsh, unjust or unreasonable. The Respondent raised a jurisdictional objection pursuant to s.385(d) of the Act, arguing that the dismissal was a case of genuine redundancy.

[2] The Applicant commenced employment with the Respondent in 2006, and was made redundant on 24 March 2017. At the time of her dismissal, the Applicant held the position of “Relief Project Manager”, however had not been rostered to work since September 2016. 1 Between June 2016 and September 2016, the Applicant had worked at the Respondent’s worksite located in Dysart, Central Queensland. The Applicant resided in Mareeba, and travelled to worksites on a fly-in fly-out basis.

[3] The Applicant was employed within one of the Respondent’s “relief pools”, workgroups designed to backfill positions at various worksites during periods of employee absence. 2 Whilst the relief pools were predominately designed to backfill labour positions, the Applicant was employed as a manager within her respective relief pool.3

[4] On 24 February 2017, the Respondent sent the Applicant the following termination letter:

“Dear Deborah,

Re: Termination of Employment

To operate our business in-line with our Client’s expectations and within the scope of our commercial contract we are required to continually review and adjust our operations at the workplace level. This allows us to remain competitive in the market and ensures that we deliver the Quality of Life services to our Clients and employees.

In line with our latest business review to optimise labour efficiencies the company has decided to change the construct and application of the relief pool across its broader operations. This means the intermittent and irregular workforce needed to cover its unpredictable operational requirements will now be sourced, if and when required, through a labour hire agency. As a result of this operational change, your position as a relief employee has been deemed redundant and will no longer be required to be performed.

Future opportunities of employment

It is good practice to minimise the adverse effects of changes and attempt to retain our valued staff. For this reason we would like you to consider other suitable redeployment opportunities within the business.

We have provided to you a full list of current vacancies within our business nationally. If you are interested in any of the listed vacancies please notify us in writing and outline the position, the work location, your knowledge, skills, experience, and your qualifications / licences as required by the position.

It should be noted that if Sodexo is unable to reasonably redeploy you, your employment with Sodexo will be terminated in line with your industrial instrument with final day of employment being Friday 24th March 2017.

You will of course receive all due termination entitlements and Sodexo will also assist to provide career transition support. Sodexo’s Employee Assistance Program is also available as an anonymous support resource for you during this difficult time.

To avoid any certainty, the purpose of this letter is also to give you at least the required period of notice of termination.

Employment with Agencies

Sodexo Energy and Resources - Mining is currently working primarily with two global labour hire Agencies, namely Chandler Macleod and HAYS. Both of these companies have expressed interest in engaging Sodexo Employees from our relief pool to cover casual workforce requirements for their broad range of clients. Should you wish to explore these options further, please refer to the contact details included below.

…

If you have any questions or wish to discuss further about the termination of employment notified in this letter, your Scheduler will be able to assist by phone and email with some of your questions. If you prefer to meet with an HR representative, please let your scheduler know as they will be able to book a suitable time for this. The relevant contact details are included below:

…

Yours sincerely,

Shalyn Jones

HR Operations Manager” (emphasis added)

[5] The Applicant was made redundant as the result of a restructure that saw the relief pools outsourced to an external labour hire company. The Respondent submitted that there were significant commercial benefits to the restructure. It was submitted by Counsel for the Applicant, that the Applicant’s case revolves around the application of s.398(2), and whether it would have been reasonable, in all the circumstances, to redeploy the Applicant within the Respondent’s, or with any of its associated entities’, enterprises. 4

[6] The Applicant submitted that there were several positions into which she was capable of being redeployed, and that the Respondent had failed to provide sufficient notice to the Applicant of the redundancy. In addition, it was submitted that the Respondent did not make all reasonable attempts to redeploy the Applicant.

[7] The Respondent objected to conciliation prior to the determination of the jurisdictional objection. Pursuant to s.396 of the Act, the Fair Work Commission (the Commission) must first consider the jurisdictional objection, prior to dealing with the merits of the application. Accordingly, it was agreed with the parties that the jurisdictional objection would be determined and Directions were set for the filing of material. The matter was heard by consent in Brisbane (with video link to the Cairns court house) on 5 July 2017, and 14 July 2017.

[8] The parties further agreed that, subject to this Decision, given that conciliation of this matter had not occurred, they would engage in discussions relating to the progress of the application.

[9] At the Hearing, the Applicant was represented by Mr Ryan Haddrick of Counsel, instructed by Ms Amanda Langtree, Associate with Preston Law, who both appeared with permission granted pursuant to s.596 of the Act. The Respondent was represented by Mr Sean Edwards, Legal Counsel – Workplace Relations and Employment (in-house counsel) of the Respondent.

[10] Whilst not all of the evidence and submissions are referred to in this Decision, all of such have been considered.

RELEVANT LEGISLATION

[11] Pursuant to s.385 of the Act:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[12] Relevantly, s.389 of the Act provides:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

[13] The Respondent was part of a large multinational group of companies, operating in approximately 80 countries, and employing over 3000 people in Australia. 5 The associated corporate entities of the Respondent (Sodexo Remote Sites Australia Pty Ltd) in Australia were: IFM Services Pty Ltd and Sodexo Australia Pty Ltd.6

[14] The Respondent raised a jurisdictional objection pursuant to s.385(d) of the Act, stating that the dismissal was a case of genuine redundancy. Accordingly, it was submitted by the Respondent that it bears the onus of proof to satisfy the requirements of s.389 of the Act. 7

[15] The Respondent submitted that in late 2016, a business decision was made to eliminate four of the Respondent’s relief pools from its operations. The Respondent’s seasonal relief employees were replaced with labour sourced through an external labour hire company, and its permanent relief employees (such as the Applicant) were replaced by existing employees from each individual worksite operated by the Respondent. In stating that the loss of the Applicant’s job was a genuine redundancy, the Respondent referred to the Explanatory Memorandum to the Fair Work Bill 2009, which relevantly provides:

“1548. The following are possible examples of a change in the operational requirements of an enterprise:

…

•  the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person's job no longer exists.”

[16] The Respondent submitted that the result of the organisational change was such that the Applicant’s duties and functions were redistributed to the existing employees. It was submitted that the Applicant, “no longer had any functions or duties left to discharge.” 8

[17] Mr Colin Purves, Human Resources Director – Energy and Resources of the Respondent, provided a statement and oral evidence in these proceedings. Mr Purves stated that, in August 2016, the Respondent had commenced a project to, “optimise the relief pools”. 9 Mr Purves stated that a business decision was made to terminate several relief pools, and source the Respondent’s, “intermittent and irregular workforce from labour hire agencies, and utilise its existing permanent labour from the work sites to backfill management positions”.10

[18] It was clarified at the Hearing, that the decision to terminate the relief pools was approved by the Respondent in either November or December 2016, 11 however the proposal was first contemplated in either August or September 2016.12

[19] The business case in support of the decision, projected a cost saving of $2,434,440.86. 13 In the case of relief project managers (such as the Applicant), Mr Purves stated, “…Sodexo no longer had the obligation to pay permanent employees (i.e. relief pool managers) their high wages when the employee remained ready, willing and able to perform their services and Sodexo was unable, for whatever reason, to place them at a client site…”14 Mr Purves identified several key problems with the relief pools, including the burden to administer and manage the relief pools;15 the inherent lack of ownership, accountability and responsibility for a workforce that is viewed as transient;16 and the lack of clear reporting and governance for sites, where relief pools operated.17

[20] The Respondent submitted that it is not relevant whether the duties of the Applicant continue to exist but rather, “whether the job previously performed by the Applicant still exists.” 18 The Respondent submitted that, whilst the functions and duties of the Applicant’s role have been redistributed to other employees, the position itself no longer exists, and in accordance with the example provided in the Explanatory Memorandum, it had improved the efficiency of its business by distributing the Applicant’s duties to other employees.

[21] The Respondent submitted that there were genuine and demonstrable changes to its operational requirements. It submitted that the relief pools had, “evolved and morphed over time, polluting the labour mix with management positions, poor performing employees, employees with site or other restrictions, and adding rigid and inflexible, inefficient, cumbersome, and costly work processes; significantly eroding the Respondent's competitiveness and lean profit margins.” 19

[22] Mr Purves made reference to the Respondent’s redeployment obligations, in particular he stated:

“Where there was an open position or vacancy within the Sodexo business or associated entity and an affected employee could reasonably perform that role (even if some upskilling was required) then that affected employee would be redeployed into that role. Any employee affected by this optimisation program would not… be required to apply for or compete against the market for a suitable role… It is important to note, that almost all of these new roles were non-management roles… I believe that at the time of the optimisation project, less than 1% of all existing and generated vacancies in Sodexo and its associated entities may have been management or supervisory roles… we provided all affected employees with a list of open vacancies within Sodexo and its associated businesses. Whilst these positions had been previously advertised in open market, the affected employees were asked to review these positions, notify and discuss with us if there were any suitable positions that interested them, and if the position was suitable then they would be redeployed into that position without any form of an application or the need compete with the open market.”  20

[23] In relation to the redeployment obligations, the Respondent, in assessing alternative jobs for the Applicant and the process of implementation, referred to the case of Kekeris v A. Hartrodt Australia Pty Ltd, 21 where it was held that:

“[27] When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists. The evidence clearly discloses that none of the supervisory positions that existed prior to the restructure survived. In particular, the applicant’s job of supervisor of sea freight import and export no longer exists.”

[24] The Respondent stated that this case was relevant to the Applicant; when considering the duties, experience and qualifications of the alternative positions.

[25] Ms Shalyn Jones, Human Resources Manager – Energy and Resources for the Respondent, provided evidence in these proceedings. Ms Jones was responsible for engaging with the Applicant, regarding any opportunities for redeployment within the Respondent’s enterprise.

[26] In her Statutory Declaration, Ms Jones detailed the steps taken to consult with the Applicant regarding the redundancy and the redeployment process. These steps are critical to the redeployment process and have been summarised below.

[27] On 24 February 2017, Ms Jones effected correspondence to be sent by post to the Applicant, advising her that her position was to be made redundant effective 24 March 2017. The correspondence contained a list of vacancies nationwide, across the Respondent’s enterprise, and its associated entities; enterprises (national vacancy list). 22

[28] On 28 February 2017, Ms Jones telephoned the Applicant on her mobile number as recorded on the Respondent’s personnel file, to confirm receipt of the correspondence. The telephone call was not answered, and Ms Jones was not able to leave a message.

[29] On 2 March 2017, the Applicant telephoned Ms Jones. During that telephone conversation, Ms Jones became aware that the telephone number listed for the Applicant on the Respondent’s file was not current. Ms Jones stated that the Applicant said she had not received the letter and national vacancy list sent to her. Ms Jones indicated to the Applicant that she would be communicating with her over the next four weeks, to explore redeployment opportunities. Ms Jones indicated to the Applicant, that if a suitable position for redeployment could not be identified, the Applicant’s employment would be terminated.

[30] The Applicant and Ms Jones agreed to communicate over the following weeks to discuss redeployment opportunities, however Ms Jones was given the impression that the Applicant expected her to, “do all the work.” The Applicant also indicated to Ms Jones that her preferred form of communication would be email. Ms Jones emailed the Applicant the letter and a copy of the national vacancy list.

[31] On 3 March 2017, the Applicant emailed Ms Jones with a list of concerns, including: that the national vacancy list did not contain any similar positions and that the Respondent had not attempted to mitigate the effects of the redundancies. The Applicant requested copies of her employment records.

[32] Ms Jones attempted to telephone the Applicant, however the Applicant did not answer her phone. Ms Jones emailed the Applicant, indicating that the Applicant had been provided with the requisite notice of the redundancies.

[33] On 4 March 2017, the Applicant emailed Ms Jones reiterating that she felt that the Respondent had not attempted to contact her. On 7 March 2017, Ms Jones emailed the Applicant copies of her employment contracts, in accordance with the request in the Applicant’s email dated 3 March 2017.

[34] On 16 March 2017, Ms Jones emailed the Applicant a new copy of the national vacancy list, and requested that the Applicant notify her if she had an interest in any positions. The same day, the Applicant emailed Ms Jones and stated that hardcopy versions of her employment records had not been received. The Applicant did not comment on the national vacancy list.

[35] On 17 March 2017, Ms Jones emailed the Applicant to inform her that she was out of the country, and would contact her next on 20 March 2017. On 20 March 2017, Ms Jones telephoned the Applicant in relation to the national vacancy list. Ms Jones stated that the Applicant told her that, “there was nothing in the list of vacancies that seemed relevant to her and therefore was not interested in any of those options.” 23 During the telephone call, Ms Jones identified several positions for redeployment, including a Site Administrator position. Ms Jones stated that the Applicant did not consider that the Site Administrator position was suitable for redeployment.

[36] On 21 March 2017, the Applicant emailed Ms Jones, alleging that Ms Jones had not contacted her, and that the process was unfair. Ms Jones telephoned the Applicant to discuss her email. Ms Jones followed up those discussions with an email sent to the Applicant, which recorded that Ms Jones indicated that the Applicant was required to engage in discussions with the Respondent regarding redeployment, rather than the process requiring unilateral effort on the Respondent’s behalf.

[37] On 22 March 2017, the Applicant emailed Ms Jones alleging that no consultation had occurred, and stating that the Respondent had not provided her with any suitable redeployment opportunities. On 24 March 2017, Ms Jones emailed the Applicant and advised her that she was unable to be redeployed, and accordingly her employment would be terminated.

[38] The Respondent submitted that it would have been unreasonable, given the available roles, to redeploy the Applicant into an identified position on the same terms and remuneration as her previous position. The Respondent submitted that it had done all that was, “reasonably practicable to identify and explore all redeployment opportunities across Australia and within its business.” 24

[39] At the Hearing, it was put to the Applicant during cross-examination that several of the positions identified by the Applicant as redeployment opportunities were inappropriate, given the Applicant’s training and qualifications. The Respondent referred to a sample of the positions identified by the Applicant, 25 of which the Applicant conceded that she lacked the necessary training or experience. These positions included: Housing Manager; HSE Specialist; HSEQ Coordinator; HSE 7/11 Advisor; Property Administrator; Sourcing Manager, Food & Beverage; Personal Logistics Coordinator; Funding and Development Manager; and Catering Manager, PwC.

[40] The Respondent provided reasons as to the Applicant’s unsuitability for these positions, based on the qualifications and experience required for the roles, being different to that of the Applicant. The position of Property Administrator, was referred to by Counsel for the Applicant as a position capable of being performed by the Applicant. In relation to this position, it was put to the Applicant that it was an, “unsuitable position”, to which the Applicant responded, “I think I could upskill for that.” 26

[41] The Respondent argued the position required experience dealing with real estate matters; negotiating, managing and interpreting tenancy agreements; and that “upskilling” the Applicant to meet the requirements for the role could not be achieved within a reasonable timeframe. In particular, it was submitted that the Applicant would be required to complete six “property management modules”, and that this would take up to 12 months to complete. 27 It was submitted that it would be unreasonable, to hold the position open for that period of time.28

[42] In the months leading up the Applicant’s dismissal, the Respondent had secured contract extensions with Rio Tinto, to provide services at various worksites. The Applicant, in her correspondence sent to Ms Jones, had made reference to those contract extensions.

[43] The Respondent submitted that it would have been unreasonable to redeploy the Applicant into those positions as Rio Tinto had expressly excluded the Applicant from accessing its worksites (as Ms Jones provided in her statement). 29 The Applicant disputed the factual basis on which Rio Tinto had excluded her from its worksites, however this provided an impediment to placing the Applicant, in alternative positions at these sites.

[44] The Respondent argued that the situation was not dissimilar to the circumstances in Pettifer v MODEC Management Services Pty Ltd, where it was found that the capacity to enter a worksite, was essential to the capacity to work, and that this was a relevant consideration when determining, the reasonableness of the redeployment and whether there was a valid reason for dismissal. 30

[45] The Respondent submitted that the evidence of Mr Purves and Ms Jones was more responsive and accurate on the issue of the redeployment, in relation to the available positions, and that their evidence should be preferred over the evidence of the Applicant.

[46] It was submitted that, whilst the Sodexo Remote Sites Onshore Enterprise Agreement 2013 (the Agreement) applies to the Respondent’s onshore business, the positions of Project Manager and Relief Project Manager are not explicitly provided in cl.11 of the Agreement. It was therefore submitted by the Respondent, that the Applicant’s employment was not covered by the Agreement. Similarly, the Respondent submitted that the position also fell outside of the classifications in the Hospitality Industry (General) Award 2010 (the Award).

[47] The Respondent submitted that the consultation obligations in the Act only arise where the Applicant’s employment was governed by a relevant enterprise agreement or modern award. Accordingly, it was submitted that, as the Applicant’s position fell outside of the classifications in the Agreement and the Award, there was no obligation to consult about the redundancy. Nonetheless, the Respondent argued that it had met its consultation obligations.

[48] Whilst this submission has been taken into consideration, the case law sets out relevant obligations for consultation. These considerations are set out later in this Decision.

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

[49] The Applicant commenced employment with the Respondent on 5 November 2006. The Applicant had been employed across a range of roles with the Respondent. In an early position referred to as “domestic”, she was required to travel to the Respondent’s “Arnhem Village” worksite in Gove, Northern Territory, where she would perform various housekeeping duties. 31 Arnhem Village provided accommodation for construction workers employed by the mining company, Alcan (now Rio Tinto Alcan).

[50] In 2008, the Applicant was transferred to the position of “Administration Officer”, and promoted to “Administration Manager” later that year. 32 In December 2008, the Applicant was promoted to the position of “Relief Manager” at Arnhem Village. Whilst the term “relief” was used to describe this position, the Applicant was permanently employed at Arnhem Village.33 The Applicant’s usual duties included: performing the duties of Housekeeping Manager, performing the duties of Accommodation Manager, and covering shifts on the front counter at the worksite.34

[51] In 2008, Alcan sold its mining operations to Rio Tinto, and Arnhem Village was amalgamated with another village, Gove House. The Applicant began working across both worksites, and her position title was changed to “Relief Project Manager”. 35 In 2010, the Applicant was appointed to the position of “Project Manager of Gove House”.36

[52] In 2011, the Applicant was appointed to the “relief circuit” in the position of “Relief Assistant Project Manager/Administration”. 37 Between 2011 and 2012, whilst assigned to the relief circuit, the Applicant worked on various worksites operated by the Respondent, including: Weipa Depot, Ernest Henry, George Fisher, North Goonyella, Dysart, Tanami and Dalby Stayover.38

[53] In 2013, the Applicant was appointed to the role of “Project Manager” at Dalby Stayover. From 2014 to 2015, the Applicant worked in various positions for the Respondent, including “Accommodation Clerk” and “Accommodation Manager”, at various sites around Australia. 39 From December 2015, until the time of her dismissal on 24 March 2017, the Applicant was employed in the position of “Relief Project Manager” at the Respondent’s Weipa site. The Applicant was based in Mareeba, and undertook her duties on a fly-in fly-out basis. However, as previously noted, the Applicant had not been rostered to work since September 2016.40

[54] At the time of the dismissal, the Applicant’s remuneration was approximately $93,372.00 per annum. The evidence was that the Applicant had received the applicable notice of the termination of her employment, and redundancy payments, however at a very late stage, on her evidence. She argued the redundancy consultation and redeployment were deficient.

[55] At the Hearing, Counsel for the Applicant emphasised the application of s.389(2) of the Act, that is, whether it was reasonable, in all the circumstances, to redeploy the applicant. 41 The Applicant referred to the decision of the Full Bench in Ulan Coal Mines Limited v Honeysett and Ors,42 where it was held that:

“[26] First, s.389(2) must be seen in its full context. It only applies when there has been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer’s capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.

[27] Secondly, it is implicit in the terms of s.389(2)(b) that it might be reasonable for an employee dismissed by one employer to be redeployed within the establishment of another employer which is an entity associated with the first employer. It follows that an employer cannot succeed in a submission that redeployment would not have been reasonable merely because it would have involved redeployment to an associated entity. Whether such redeployment would have been reasonable will depend on the circumstances. The degree of managerial integration between the different entities is likely to be a relevant consideration.

[28] Thirdly, the question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.”

[56] Counsel for the Applicant, referred to the decision of the Full Bench in Technical and Further Education Commission T/A TAFE NSW v Pykett, 43 where the Full Bench quoted obiter also from the decision in Honeysett (referred to above):

“[33] The Full Bench went on to make some obiter remarks about the operation of s.389(2):

“It may be appropriate to make some concluding remarks about the operation of s 389(2). It is an essential part of the concept of redeployment under s 389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s 385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.

Where an employer is part of a group of associated entities which are all subject to overall managerial control by one member of the group, similar considerations are relevant. This seems to us to be a necessary implication arising from the terms of s 389(2)(b). While each case will depend on what would have been reasonable in the circumstances, subjecting a redundant employee to a competitive process for an advertised vacancy in an associated entity may lead to the conclusion that the employee was not genuinely redundant.”

[57] The Applicant argued that Pykett was authority for the redeployment process. 44 The Applicant, in her second Statutory Declaration, set out various positions that she considered she would be able to perform, with either minimal or no additional training. She made particular reference to the positions of: Relief Project/Camp Manager, Training Coordinator, Accounts Payable Officer, Sourcing Manager, Funding and Development Administrator, HSE Advisor, Fuels and Warranty Manager, Finance Administrator, Assistant Manager – Uniform Shop, General Administrator, Accounts Administrator, Catering Manager, Finance Shared Services Manager, Site Administrator/Supervisor, Property Administrator, Office Services Supervisor, HSEQ Supervisor, Accounts Receivable Officer, Functions Coordinator, Housing Manager, Contracts Administrator, Assistant Catering Manager, Personnel Logistics Coordinator, Facilities Manager, Site Manager – Corporate, Facility Coordinator, HR Administrator, Village Manager and HSEQ Coordinator.45 The Applicant stated that, “[h]ad I known about these positions… I would have sought more information about them…”46

[58] The Applicant particularly argued she was able to satisfy all the requirements of the Property Administrator position. In addition, during cross-examination, Ms Jones conceded that the Applicant, “…with her skills and a bit of training, she would have been able to [perform all of the main duties].” 47

[59] The Applicant’s representative was critical of the redeployment exercise, stating that the Applicant was not able to fully assess an alternative position, as not all of the relevant information was provided. The list did not set out whether the job was worked on a fly-in fly-out basis, whether relocation expenses were paid and the applicable salary and qualifications for each position. It was also argued that the fact that the Applicant was not provided with detailed job descriptions for each position was a relevant consideration. It was submitted that at various times the Applicant requested information about the positions, including in an email to Ms Jones sent two days before the termination of her employment, in which the Applicant stated, “[n]ow let's talk job opportunities, the listing sent with the letter were out of date when they arrived, even out of date when you emailed the letter as they are updated weekly from what I understand (emailed 10.30pm 2/3/17 and letter arrived 9/3/17) and then nothing sent until I emailed on 16th March because you had not answered my email, then soon after you emailed current jobs listing.” 48

[60] During cross-examination, Ms Jones stated that the email sent by the Applicant was not connected to the previous discussions she had with the Applicant. It was Ms Jones’ evidence that the Applicant had not expressed any desire to explore redeployment opportunities, prior to that email. Further, Ms Jones stated that the email was part of a chain, in which Ms Jones had provided a list of current vacancies within the Respondent’s business.

[61] The Applicant submitted that the Respondent did not discuss the identified positions with the Applicant as it had alleged. Further, it was submitted that, “the Respondent simply decided that the Applicant would not accept redeployment to a lower paid position in circumstances where the possibility has not been fully disclosed with the Applicant.” 49 In the alternative, the Applicant submitted that merely making the Applicant aware of any vacancies would not discharge its redeployment obligations.50

[62] The Applicant submitted that a failure to offer or redeploy into a suitable position, even an identified lower level position, may render the redundancy not genuine. 51 It was submitted that, on the Respondent’s own submissions, there were identified positions to which the Applicant may have been redeployed. The Applicant also considered that given the size of the Respondent’s enterprise and operations, her experience and the period of time between the decision to restructure being made and the redundancy taking effect, it would have been reasonable for the Respondent to commence redeployment as early as November or December 2016, when the decision to terminate was made.

[63] The Applicant specifically referred to the Respondent advertising for positions of Village and Camp Managers in November 2016, a position which the Applicant had worked in the previous months. Further, it was submitted that, “[t]he sheer number of positions turned over in a twelve month period meant that the Respondent ought to have known that it quite easily had the capacity to absorb the Applicant into another position.” 52

[64] The Applicant also submitted that the Commission should favour the evidence of the Applicant, over that of Mr Purves and Ms Jones, as the Applicant’s evidence, was straightforward and focused on the relevant alternative positions. 53

CONSIDERATION

[65] The Applicant alleged that the termination of her employment from the Respondent was harsh, unjust or unreasonable. The Respondent raised a jurisdictional objection to the application, stating that the dismissal was a case of genuine redundancy. It is noted, that whilst this Decision does not concern the merits of the substantive application (only the jurisdictional objection) the only reason for the dismissal provided by the Respondent, was that it was a case of redundancy.

[66] As stated, the jurisdictional objection must first be determined prior to considering the merits of the application. 54 The requirements for establishing that a dismissal was a case of genuine redundancy are set out in s.389 of the Act, as follows:

s.389(1)(a) - the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise

[67] It was not contested, that the Applicant’s job of “Relief Project Manager” was no longer required, as a result of removing the relief pools.

[68] In his evidence, Mr Purves linked the redundancies to the operational changes and that the retention of operating the relief pools was an, “inefficient and costly labour management process.” In August 2016, the Respondent developed the plan to terminate the relief pools and outsource its labour requirements, to labour hire companies. It was not disputed that the restructure represented a significant financial advantage for the Respondent. As a result, the Applicant’s duties were redistributed amongst the Respondent’s existing staff and labour hire employees. 55

[69] The evidence of Mr Purves in relation to the commercial advantages of the decision, was uncontested, and accordingly, was accepted. It was not relevant that some of the Applicant’s duties, were redistributed to the existing managers at the Respondent’s sites, 56 the test is whether the Applicant’s position survived the restructure,57 and on the evidence, it did not.

[70] The Respondent satisfied the criteria that the Applicant’s job was no longer required to be performed by anyone.

s.389(1)(b) - the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy

[71] In relation to considering the consultation obligations under the Agreement, whilst cl.11 does not name Relief Project Manager as a relevant position, the list of positions is not exhaustive. 58 Further, the duties performed by the Applicant, had similarities to some of the duties of various positions explicitly identified.

[72] Clause 11 of the Agreement states:

“11. CLASSIFICATIONS

Employees will be employed at the following levels as determined by the Company:

…”

[73] On the basis that the Applicant’s employment was covered by the Agreement, and the consultation obligations in the Agreement, were required to be observed by the Respondent, the case of Ulan Coal Mine Limited v Howarth & Ors is relevant to the required consultation: 59

“[31] We do not consider, in the particular circumstances of the present matter and having regard to the obligation under sub-clause 23.1 of the Agreement, that a further round of discussions was required to be held by the Company with the employees to be dismissed, either separately or as a group. This does not mean that such separate discussions might not be worthwhile and appropriate e.g. as part of the consideration of measures to mitigate the adverse affects of terminations or to ensure that opportunities for other employment and assistance are properly examined. However they are not part of the discussions envisaged and required under sub-clause 23.1 of the Agreement and that is the test in these particular circumstances. In different circumstances this will of course vary according to the terms of particular awards and agreements.” 60

[74] It is noted, however that the Applicant did not seek to rely on a failure to consult as to the operational decision, as grounds to dismiss the jurisdictional objection. The Applicant’s submissions relating to consultation and mitigation, were made in reference to the “reasonableness” element of s.389(2), in relation to redeployment. The Applicant’s representative noted the time lag between when the decision was made to approve the strategy to remove the relief pools, and when the employees were told, and how it impacted on the redeployment process. The Applicant argued that if the employees had been notified or consulted at an earlier stage, jobs that were available at an earlier time (than when they were notified) could have been isolated for the redeployment exercise.

[75] Consideration has been given to the processes engaged in by the Respondent, to consult with the Applicant, regarding the redundancy decision.

s.389(2) - A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within: (a) the employer’s enterprise; or (b) the enterprise of an associated entity of the employer

[76] The Applicant submitted that it would have been reasonable in all the circumstances to redeploy the Applicant. In summary, the Applicant submitted that given that the decision to make the Applicant redundant was made in either November or December 2016, it would have been reasonable for the Respondent to begin quarantining positions for redeployment at that time (at an earlier stage when the proposal was under consideration), or at the very least notify the Applicant, in a timely manner, that her position was to be made redundant, in order that she had the longest opportunity to gain alternative employment. Further, it was submitted that there were several identified positions (including that of Property Administrator) that the Applicant was capable of being redeployed into; and that during the redeployment period, the Respondent did not make reasonable attempts to consider or assist redeployment of the Applicant.

[77] In relation to s.389(2), the decision of Stickley & Ors v Kestrel Coal Pty Ltd is relevant, 61 where the Full Bench of the Commission held that:

“[13] Under the heading “Considerations and Conclusion” the Commissioner sequentially considered the elements of the definition of genuine redundancy in s.389. Some factors, such as work chosen to be performed by contractors, were relevant to s. 389(1)(a) and s. 389(2)(a). Insofar as the work of contractors is concerned, the appeal only relates to the finding with respect to s.389(2)(a). In that respect the Commissioner said:

“[182] With respect to s.389(2)(a) “reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise”, and whether the Applicants could have been reasonably redeployed into the Respondent’s enterprise, it is not accepted that the Respondent had an obligation to redeploy the Applicant into a “backfill position” filled by Mastermyne employees. The timing of this project, and the short-term engagement of the project are relevant considerations, as is the Respondent’s prerogative to structure their workforce on the optimum, operational and flexible basis for their business.

[183] The roles in the organisational structure were not being recruited for, and while only the Applicant’s names had been deleted from the structure, it is accepted that the jobs no longer existed, and therefore, the job, position or work were not available for redeployment to, for the Applicants.”

[14] In this passage the Commissioner was applying the relevant element of the definition. The language used to summarise the requirement varied from the language in the section. In no case was there any ‘obligation’ in a legal sense to employ employees in roles filled by employees of the contractor. However, this passage must be considered in the context of the decision as a whole. Properly understood, in our view, the Commissioner was expressing a conclusion in relation to the reasonableness of continuing to employ persons to perform the work that had become work of contractors. The Commissioner did not state that work being performed by contractors was irrelevant to that process. Indeed the Commissioner expressly considered those circumstances.

[15] In our view, the considerations leading to the ultimate conclusion regarding the work of the contractor’s employees were all properly considered and taken into account. We are not persuaded that the discretion was improperly exercised or that there were any significant errors in the findings of fact. The facts and circumstances were considered by the Commissioner to be relevant circumstances in making the requisite overall judgment. The decision does not apply a binding principle that s.389(2)(a) has no application in relation to the work of contractors.” 62

[78] In further considering the redeployment obligations, the Full Bench of the Commission in Technical and Further Education Commission T/A TAFE NSW, 63 held that:

“[25] The word ‘redeployed’ should be given its ordinary and natural meaning. The ordinary meaning of the word ‘redeploy’ includes:

“Move (troops, workers, material etc) from one area of activity to another, reorganise for greater effectiveness; transfer to another job, task or function.”

[26] The Explanatory Memorandum to what is now s.389(2) is in the following terms:

“1551. Subclause 389(2) provides that a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).

1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.”

…

[34] Honeysett is authority for the proposition that for the purpose of s.389(2) it is sufficient if the Commission identifies a suitable job or position to which the dismissed employee could be redeployed. The Commission must then determine whether such a redeployment was reasonable in all the circumstances. We note that given the factual context the Full Bench in Honeysett did not need to consider whether s.389(2) may be satisfied if the dismissed employee could be redeployed to perform other work within the employer’s enterprise (or that of an associated entity.) Given its particular factual circumstances Honeysett is not authority for the proposition that it is always necessary to identify a particular job or position to which the dismissed employee could have been redeployed.

[35] As we have mentioned, the use of the past tense in the expression ‘would have been reasonable in all the circumstances for the person to be redeployed ...’ in section 389 (2)(a) directs attention to the circumstances which pertained when the person was dismissed. As noted in Honeysett, [T]he exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances’. The question is whether redeployment within the employer’s enterprise or an associated entity would have been reasonable at the time of dismissal. In answering that question the Full Bench in Honeysett observed that a number of matters are capable of being relevant:

“They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered”.  64 (emphasis in original and footnotes omitted)

[79] At the Hearing on 5 July 2017, the Respondent objected to the admission of the further statement of the Applicant dated 3 July 2017. The statement was filed in response to documents obtained as a result of an Order to Produce, issued late in the proceedings. The Order to Produce sought, “[d]ocuments showing positions vacant within the Respondent’s enterprise, or the enterprise of a related entity of the Respondent, at any time between 1 August 2016 to 12 April 2017.”

[80] The further statement was admitted into evidence on the basis that the evidence was of probative value, and in the interests of fairness. The Respondent was on notice, as a result of the Order to Produce and the fact that it was in possession the underlying material, and that the material would be raised at the Hearing, in relation to the legislative tests, to determine whether there were any positions suitable for redeployment.

[81] The Applicant held a Diploma of Management and a Certificate III in Business Administration that had been sponsored by the Respondent, 65 and she had been employed in a range of roles across ten years. The Applicant’s representative referred to a number of positions on the list capable of being performed by the Applicant. In particular, the Applicant referred to the positions of: Relief Project/Camp Manager, Training Coordinator, Accounts Payable Officer, Sourcing Manager, Funding and Development Administrator, HSE Advisor, Fuels and Warranty Manager, Finance Administrator, Assistant Manager – Uniform Shop, General Administrator, Accounts Administrator, Catering Manager, Finance Shared Services Manager, Site Administrator/Supervisor, Property Administrator, Office Services Supervisor, HSEQ Supervisor, Accounts Receivable Officer, Functions Coordinator, Housing Manager, Contracts Administrator, Assistant Catering Manager, Personnel Logistics Coordinator, Facilities Manager, Site Manager – Corporate, Facility Coordinator, HR Administrator, Village Manager and HSEQ Coordinator.66

[82] A number of positions were raised in cross-examination with the Applicant. The Respondent, referred to a range of the positions relied on by the Applicant. Particular mention was made of the positions of Housing Manager; HSE Specialist; HSEQ Coordinator; HSE 7/11 Advisor; Property Administrator; Sourcing Manager, Food & Beverage; Personal Logistics Coordinator; Funding and Development Manager; and Catering Manager, PwC. The Respondent submitted various references to the transcript of proceedings, where the Applicant conceded she did not, at the time, possess the necessary qualifications or experience to be redeployed into those specific positions. 67

[83] For example, in relation to the position of Housing Manager, the Applicant conceded she did not possess any of the required qualifications, and that it would not be a suitable position for redeployment, stating that, “I’ve made these choices based on the summary, realising that maybe with some up training I could get a real estate licence, but now seeing the job description, no.” 68 The Applicant made similar concessions in relation to the positions of HSC Specialist,69 HSC Advisor 7/11,70 and HSEQ Coordinator.71

[84] The Respondent also submitted that several of the positions identified by the Applicant, appeared on the national vacancy lists provided to the Applicant, and that she did not express an interest in those positions, at that time. 72

[85] The Respondent made significant reference to the fact that the Applicant was not required to “apply” for any positions. However, the Applicant stated that the list of available roles she was given provided insufficient detail to make an expression of interest. However, on receiving an expression of interest, all that deal was then provided. Furthermore, she significantly criticised the process, on the basis that Ms Jones had not responded to her when she stated she would and therefore, the Applicant lost a period of time that could have been devoted to the redeployment process. Knowledge of all of the matters were within the Respondent’s domain and there was a clear expectation that the Applicant would consider any of the alternative positions. The Respondent had been on notice of such, given the Applicant sough an Order to Produce, for these vacancies.

[86] The Respondent submitted that:

“As reasons outlined in the above, the Respondent submits that redeployment period was between 24 February 2017 and time of dismissal, 24 March 2017. There were no contractual obligations binding the Respondent to a defined period of redeployment. In fact, the Sodexo Career Listings opened vacancies up to the Applicant from 8 March 2017 to the Applicant’s dismissal date. The Commission should not turn its mind to any period outside this window.” 73

[87] The test is whether it would have been “reasonable” in the circumstances to redeploy the Applicant, having regard whether the time spent exploring redeployment opportunities was reasonable (among other considerations), rather than whether there was a contractual obligation to spend a specified period of time exploring redeployment options.

[88] In the circumstances, given that the decision to make the Applicant redundant was made in, at the latest, December 2016, it would have been reasonable to commence exploring redeployment opportunities with the Applicant in late December 2016, or at the latest, early January 2017. The Applicant was not notified of the redundancy until late February 2017 (or early March 2017 on the Applicant’s submissions), and the Respondent only allocated a period of some three weeks to explore redeployment opportunities. The Applicant had become aware of the redundancies when another employee received a redundancy letter. The Applicant, after querying such, received her redundancy advice much later.

[89] Mr Purves in his evidence, stated that it would not have been reasonable to quarantine those positions that appeared on the vacancy list earlier, as the Respondent would be required to move employees and would, “…still have to fulfil the requirements of the contract, so we would have to find labour from elsewhere which would presumably be agency labour which adds to our cost base and also means that those roles are filled by individuals who may not have the same experience and competency levels as the relief pool employees.” 74

[90] The Respondent’s submissions were that the Applicant did not express an interest to be redeployed to be particular job, during the relevant period. Ms Jones gave evidence that, in the weeks during the redeployment process, the Applicant was difficult to contact and would not return telephone messages, and that she did receive numerous emails from the Applicant during this period. However, Ms Jones emphasised that the purpose of the correspondence, had been for the Applicant to gain access to employment records, rather than to discuss redeployment opportunities.

[91] The Respondent alleged that the Applicant did not, during the entire redeployment period, engage meaningfully in the redeployment process, with the view of maximising her prospects of being redeployed. However, during the redeployment period, Ms Jones was out of the country, on a different time zone, and out of reception for a fair period of the redeployment period. There is clear and uncontested evidence, that the Applicant generally sought to be redeployed. For example, the email to Ms Jones dated 22 March 2017, which was not answered by the Respondent, that stated, “[n]ow let's talk job opportunities, the listing sent with the letter were out of date when they arrived, even out of date when you emailed the letter as they are updated weekly from what I understand (emailed 10.30pm 2/3/17 and letter arrived 9/3/17) and then nothing sent until I emailed on 16th March because you had not answered my email, then soon after you emailed current jobs listing.” 75

[92] As stated, Ms Jones was unable to be contacted for at least six days during the redeployment period. Taking all of the facts and circumstances into account, the Respondent’s obligation to mitigate the redundancy by offering a proper redeployment process, was procedurally deficient, in some respects, as set out. The Respondent erred in merely relying on the Applicant to navigate the redeployment process. The list of jobs provided as the basis for the redeployment exercise, did not provide sufficient relevant information, for the Applicant to decide whether she sought the position, but it did provide a basis for the Applicant to express an interest in a position, and then full details were provided. The Applicant indicated she had responsibility for her son and resided in Mareeba, and therefore required sufficient detail on the location, remuneration, whether it was fly-in fly-out, who paid for the flights, availability of relocation costs and or rental assistance.

[93] In relation to the limitations placed on the available positions for redeployment, it was the evidence of the Applicant that she had been told that she was no longer welcome on Rio Tinto’s Weipa site, and accordingly the Respondent submitted that she could not be redeployed to positions on those sites, due to the client’s decision. These matters of exclusion from worksites have been considered as performance issues. The recent decision of Tasmanian Ports Corporation Pty Ltd v Gee, 76 is relevant to the Applicant’s circumstances, wherein she was restricted from entering worksites. The Full Bench held:

“[27] It is critical to the determination of grounds 1-4 of Tasports’ appeal to identify the ratio decidendi of the Full Bench decision in Pettifer. The facts of that matter were that Mr Pettifer was employed by a labour hire company, Modec Management Services Pty Ltd, and had been assigned to work for BHP Billiton Petroleum Inc. (BHPB) to perform work upon a floating production, storage and offloading vessel. After a “near miss” incident, BHPB directed Modec to remove Mr Pettifer from the vessel. This direction was made pursuant to a right possessed by BHPB under a term of the labour supply contract between it and Modec. That right was expressed in the following terms (the “Company” being BHPB and the “Contractor” being Modec):

“The Company Representative may direct the Contractor to have removed from the Site or from any activity connected with the work under the Contract, within such time as a Company Representative reasonably directs, any subcontractor or person employed in connection with the work under the contract, whose involvement the company representative considers not to be in the best interests of the project.

The costs associated with removing such persons shall be borne by the Contractor. The person shall not be employed elsewhere on the Site or on activities connected with the work under the Contract without the prior written approval of the Company. Within a reasonable period of time those person who have been removed from the work under the Contract shall be replaced at the expense of the Contractor if the Company so requires by other suitable qualified persons Approved by the Company.” 

[28] Modec did not agree that Mr Pettifer’s conduct justified his removal from the vessel, but was nonetheless obliged to comply with BHPB’s direction in accordance with the above contractual provision. Modec endeavoured to find alternative work for Mr Pettifer, which included consideration of local and international employment opportunities and discussions with Mr Pettifer’s union to explore alternative roles, and Mr Pettifer was retained in employment while this occurred. It was ultimately concluded that there was no suitable alternative role for him. Mr Pettifer was given an opportunity to respond to this conclusion. He was ultimately dismissed on the basis that Modec had no suitable role for him to perform. Modec did not seek to justify the dismissal by reference to any aspect of Mr Pettifer’s conduct.

[29] Mr Pettifer applied to the Commission for an unfair dismissal remedy. In the decision at first instance, it was concluded that s.387(a) did not arise for consideration because Modec did not rely on any matter related to the applicant’s capacity or conduct as a reason for the dismissal. Notwithstanding this, the dismissal was found not to be unfair, essentially on the basis that there was no practical alternative by which Mr Pettifer could have been retained in employment.

[30] Mr Pettifer appealed on the basis that the conclusion that s.387(a) did not arise for consideration was in error, and contended in the appeal that his dismissal occurred because of the allegation of misconduct levelled against him by BHBP. The Full Bench rejected the proposition that Modec dismissed Mr Pettifer on the basis of any consideration as to his conduct. However, the Full Bench determined that his dismissal was capacity-related, and that the Commissioner erred by not considering this under s.387(a). The Full Bench said:

“[32] We have concluded that the BHPB instruction that Mr Pettifer was not permitted to work on the BHPB Site represented a matter which went to Mr Pettifer’s capacity to work. Consequently, it was a matter that required consideration pursuant to subsection 387(a) to determine whether or not it was a valid reason for the termination of his employment. It has long been established that the Commission is required to consider and reach conclusions about each of the factors specified in section 387...

[33] Consequently we have concluded that the Commissioner was in error in her conclusion that the circumstances of the termination of Mr Pettifer’s employment did not give rise to valid reason considerations. Mr Pettifer’s incapacity to work on the BHPB Site arose directly from the BHPB prohibition on his returning to work on that site, as distinct from any dispute over his conduct. As a consequence, Mr Pettifer was incapable of working on the BHPB Site in a manner which was akin to a bar or the loss of a form of licence, essential to his capacity to work. Hence Mr Pettifer’s capacity was a factor which required a conclusion in terms of whether it represented a valid reason for the termination of his employment.”

[31] Having found error in the respect identified, the Full Bench proceeded to re-determine Mr Pettifer’s unfair dismissal remedy application. In relation to s.387(a), the Full Bench referred to the contractual provision earlier quoted, and said (footnotes omitted):

“[37] MODEC was therefore contractually obliged to remove Mr Pettifer from the BHPB Site if instructed to do so. This was the role which Mr Pettifer was employed to perform. No longer capable of performing the inherent functions of this role, MODEC sought to find alternative employment for Mr Pettifer. Only after exhausting these inquiries did MODEC rely on this reason to terminate Mr Pettifer’s employment. In these circumstances the Full Bench is satisfied that MODEC had a valid reason relating to Mr Pettifer’s capacity to terminate his employment and only exercised this reason because it genuinely was unable to find suitable alternative employment for him.

[38] We have considered Mr Pettifer’s position in the context of the conclusions reached by Deputy President Asbury in Adecco.

[39] In that matter the Deputy President observed that:

‘[71] I accept that the Adecco, by virtue of its contract with Nestlé for the supply of labour, may have been required to remove Ms Kool from the Nestlé site when it was requested to do so. I was not assisted by the failure of Adecco to call any direct evidence about the terms of its contract with Nestlé for the supply of labour and the rights of Nestlé to seek to remove labour hire employees from its site.’

[40] The factual situation before the Deputy President was somewhat different to Mr Pettifer’s circumstances. In that case, the Deputy President did not have the terms of the contractual relationship between the labour hire company and the host employer in evidence before her. Some of her comments in that context might well be considered to be, at their highest, a general statement of principle. That principle is that, in the context of labour hire arrangements, the actions of an employer who dismisses an employee following the exercise of a host employer’s contractual right to have the employee removed from the host site cannot rely exclusively on the actions of that third party as their defence to a claim of unfair dismissal. A discretion remains with the FWC to decide whether a particular dismissal is unfair in all the circumstances.

[41] In the Adecco case, Deputy President Asbury found that a failure on behalf of the applicant’s employer to explore redeployment opportunities for the applicant constituted an element of unfairness in the circumstances of the applicant’s dismissal. In this case, there is no contest that MODEC did explore redeployment opportunities for Mr Pettifer both prior to his termination and afterwards, including liaising with his union to explore the opportunity of substitution. In this respect, we would also observe that there is absolutely nothing to suggest that MODEC colluded with its client to remove Mr Pettifer from the work site.

[42] Having determined that there was a valid reason for Mr Pettifer’s dismissal related to his capacity it is necessary to make findings in relation to sub-sections 387(b)-(h) as part of our re-determination of the matter.”

[32] The Full Bench went on to deal with paragraphs (b)-(h) of s.387 and ultimately came to the same conclusion as that at first instance, namely that the dismissal was not unfair.” 77 (footnotes omitted)

[94] The Respondent in the current matter, did not rely on the reasons relied on the exclusion by Rio Tinto to terminate the Applicant’s employment, and indeed those reasons are not before the Commission. However, regard has been had to the inability for the Applicant to be redeployed to the Rio Tinto sites, in considering the redeployment process. The client’s decision to exclude the Applicant from these sites, provided a limitation on the offer of positions for redeployment.

[95] The Respondent is a significantly large international company and therefore, the processes engaged in are put under heightened scrutiny. It is recognised that this is a case where a long serving employee, who had worked in a variety of roles, and who was employed for an extended period of time, when her position was made redundant. Accordingly, at the time of formulating the process of eliminating the relief pool operations, there was a requirement on the Respondent, as part of this new operational strategy, to consider the mitigation of the effects of the redundancies and which roles current employees may have been able to be redeployed to.

[96] There was no evidence that this was done until a much later stage when the Applicant was notified that the decision was taken. The available window between the approval of the decision in November or December 2016 and the communication of the decision in February 2017was not used to the advantage of the employees, to provide a longer lead time to consider redeployment options.

[97] Having said that, in assessing the available alternative jobs, on the evidence of the parties regarding the specific requirements of the roles, the Applicant would have required a period of, “up skilling,” in terms of obtaining further qualifications.

[98] Mr Edwards submitted that the Applicant did not possess the necessary experience or qualifications to be redeployed into any of the identified positions. In relation to the sample of positions tendered by the Respondent, the relevant qualifications for those positions included: Certificate IV Training and Assessment (Personnel Logistics Coordinator); Diploma in Occupational Health and Safety (HSE Manager); a diploma in a hospitality related discipline (Assistant Catering Manager); Bachelor Degree in Business (Catering Manager – PwC); tertiary qualifications in strategic sourcing/procurement (Sourcing Manager – Food and Beverage); Property Management Registration (Housing Manager); Property Management Registration (Property Administrator); and Certificate IV in Occupational Health and Safety (HSEQ Coordinator). 78

[99] In relation to the particular focus on the Property Administrator position, Mr Haddrick stated, “…it is the only other particular position that we say you have rolled gold evidence in front of the Commission... then it becomes a question of fact for this Commission to decide whether it was a position that’s reasonable for her to be [redeployed].” 79

[100] Mr Haddrick, went on to state:

“Ms Jones accepted that she thought that Ms Hallam could do all 22 of the 22 identified main responsibilities in the position. At its absolute worst for Ms Hallam, there might be some further training required to assist in undertaking the role, but the role was there, ready, open for her. She identified that she could do it and if that opportunity had been given to Ms Hallam she could have been considered to be redeployed in that position…” 80

[101] Whilst Mr Haddrick established, through the cross-examination of Ms Jones, that the Applicant possessed the necessary skills to perform the “duties” identified on the position description for the Property Administrator position, it was also established that she did not possess the necessary qualifications and experience at that time. This was conceded by the Applicant during cross-examination. 81 The role of Property Administrator required “Property Management Registration,” as set out in the position description, which required the Applicant to complete six learning modules.

[102] It is not sufficient that the Applicant would be able to perform some of the duties of the position, given she lacked the necessary qualifications. Accordingly, the Property Administrator position was not suitable for redeployment to at the time.

[103] In considering whether it would have been reasonable to hold the position open to allow Applicant to obtain Property Management Registration, Mr Edwards submitted this would have taken 12 months. In Wilson v Mackay Taxi Holdings Ltd, 82 Simpson C held that:

“[33] Even on the Applicants own best case there is a reasonable prospect that the Applicant will not hold the qualification attached to the new role for 6 months. I do not regard such a length of time as reasonable in all of the circumstances. Further while there was speculation that the Applicant may have been eligible for government funding to assist in meeting the costs of her undertaking the Certificate IV training, the fact is no such application had been made at the time of termination.

…

[35] For the reasons set out above I am satisfied it was not unreasonable for the Respondent to have advertised for the new position in order to engage an employee who held the qualification the position required instead of redeploying the Applicant into the Bookkeeper position.” 83

[104] The evidence of the Respondent is accepted on the time to obtain the qualification, and accordingly, it would have been unreasonable to hold the position open for 12 months, whilst the Applicant obtained registration.

[105] On the evidence, it would have been reasonable in the circumstances, for the Respondent to engage in consultation at an earlier time, quarantine positions, and extend the length of the redeployment period.

[106] However, the relevant test is whether it would have been reasonable, in all the circumstances, to redeploy the Applicant. The process required both parties to engage in the redeployment exercise. The positions advanced by the Applicant as prospective options for redeployment, were established on the evidence to be unsuitable, based on the Applicant’s qualifications and experience at the time of the redundancy. Further, it would not have been reasonable to hold the positions open for a relatively lengthy period, whilst the Applicant gained the relevant qualifications.

[107] The Full Bench in Technical and Further Education Commission (t/as TAFE NSW) v Pykett, 84 established that procedural deficiencies with a redeployment process, are alone not sufficient to find that a dismissal was not a case of genuine redundancy:

“[40] The Commissioner erroneously focussed on the inadequacy of the appellant’s redeployment policy and failed to make a finding that there was a job, a position or other work to which Ms Pykett could have been redeployed. Such a finding is a necessary step in reaching the conclusion that it would have been reasonable in all the circumstances for Ms Pykett to be redeployed within the appellant’s enterprise. The failure to make such a finding is an error which warrants correction on appeal…” 85 (emphasis added)

[108] On the facts, there was no identified position within the Respondent’s operation, or its associated entities’ enterprises where it would have been reasonable to redeploy the Applicant. 86

CONCLUSION

[109] Having regard to the matters outlined above, and in particular the requirements of s.389(2) of the Act, the Respondent has satisfied that the termination of the Applicant’s employment was a case of genuine redundancy.

[110] Having stated this, the Respondent is a significant employer and it would have been reasonable for the Respondent to notify the Applicant of the redundancy, at an earlier date, and commence exploring redeployment opportunities at that time. It would also have been reasonable to properly consult with the Applicant, regarding the requirements of specific positions identified as possible avenues for redeployment, and provide all relevant information with the group of positions at the earliest stage. Whilst these are noted as deficiencies, the evidence does not confirm that there would have been a different redeployment outcome, in the circumstances where the Respondent was changing its operations.

[111] However, the Applicant was also requested to express interest in positions. The Respondent argued that the Applicant had been confrontational during the redeployment process, and was not reasonably proactive or responsive during the redeployment period. It may have been appropriate to adapt the procedures to account for the periods where there were lapses in communication between the parties. Expanding the period or commencing redeployment consultation earlier, and providing a full list of potential alternative jobs with sufficient information for the Applicant to express relevant interest, may have accommodated this.

[112] However, this does not overcome the case that there was not a suitable position, within the Respondent’s or its associated entities’ enterprises, that the Applicant could have been reasonably redeployed to. Accordingly, despite the identified procedural deficiencies, they are not considered to be fatal to the Respondent’s procedure, and the jurisdictional objection must be upheld. Consultation was engaged in, and a reasonable redeployment exercise occurred. An alternative position was not available on the evidence, and therefore, it was not reasonable in the circumstances to redeploy the Applicant.

[113] Having taken into account all of the facts and circumstances, against the legislative tests, the dismissal is considered to be a case of genuine redundancy, in accordance with s.387 of the Act. The substantive application made pursuant to s.394 of the Act is therefore, dismissed.

[114] I Order accordingly.

COMMISSIONER

Appearances:

Mr. R.W. Haddrick of Counsel, instructed by Ms. A. Langtree of Preston Law for the Applicant.

Mr. S. Edwards for the Respondent.

Hearing details:

5 and 14 July 2017.

Brisbane.

 1   Statutory Declaration of Deborah Hallam declared 15 June 2017 at [17].

 2   Statutory Declaration of Colin Purves declared 23 May 2017 at [5].

 3   Ibid at [6].

 4   Transcript dated 14 July 2017 at PN25.

 5   Transcript dated 5 July 2017 at PN642 – PN645.

 6   Ibid at PN868 – PN872.

 7   Roy Morgan Research Ltd v Baker [2013] FWCFB 8936 [21] – [27].

 8   Submissions of the Respondent dated 25 May 2017 at [13].

 9   Statement of Colin Purves declared 23 May 2017 at [18].

 10   Ibid at [19].

 11   Transcript dated 5 July 2017 at PN668.

 12   Ibid at PN672.

 13   Statement of Colin Purves declared 23 May 2017 at [23].

 14   Ibid at [27].

 15   Ibid at [31].

 16   Ibid at [35].

 17   Ibid at [38].

 18   Submissions of the Respondent dated 25 May 2017 at [16]; see Ulan Coal Mines Limited v Honeysett and Ors [2010] FWAFB 7578.

 19   Submissions of the Respondent dated 25 May 2017 at [21].

 20   Ibid at [42], [45] and [47].

 21   [2010] FWA 674.

 22   Statement of Ms Shalyn Jones sworn 22 May 2017 at Annexure 4.

 23   Statement of Shalyn Jones declared 22 May 2017 at [52].

 24   Submissions of the Respondent dated 25 May 2017 at [63].

 25   Respondent’s Outline of Closing Submissions dated 13 July 2017 at [60].

 26   Transcript dated 5 July 2017 at PN388.

 27   Respondent’s Outline of Closing Submissions dated 13 July 2017 at [66].

 28   Ibid; Wilson v Mackay Taxi Holdings Ltd [2014] FWC 2425.

 29   Statement of Shalyn Jones declared 22 May 2017 at [68].

 30   [2016] FWCFB 5243 at [33].

 31   Statutory Declaration of Deborah Hallam declared 15 June at [2].

 32   Ibid at [3] – [4].

 33   Ibid at [5].

 34   Ibid.

 35   Ibid at [6].

 36   Ibid at [7].

 37   Ibid at [8].

 38   Ibid.

 39   Ibid at [10].

 40   Ibid at [17].

 41   Transcript dated 14 July at PN25.

 42   [2010] FWAFB 7578.

 43   [2014] FWCFB 714.

 44   Transcript dated 14 July at PN149.

 45   Statutory Declaration of Deborah Hallam dated 3 July 2017 at Annexure A.

 46   Ibid at [7].

 47   Transcript dated 5 July at PN970.

 48   Applicant’s “Response to Sodexo Form F3 Response to Unfair Dismissal Application” dated 25 May 2017 at Annexure 27.

 49   Submissions of the Applicant dated 16 June 2017 at [29].

 50   See Howarth and Ors v Ulan Coal Mines Limited [2010] FWA 4817 at [41].

 51   McLeod v Alcyone Resources [2014] FWCFB 1542 at [32]; Jenny Craig Weight Loss Centres Pty Ltd v Margolina [2011] FWAFB 9137 at [28] – [29].

 52   Applicant’s Brief Outline of Oral Submissions filed 14 July 2017 at [3(e)(ii)].

 53   Transcript dated 14 July at PN35.

 54   Fair Work Act 2009 (Cth) s.396.

 55   Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 at [27].

 56   Johnston v Blue Circle Southern Cement Pty Ltd [2010] FWA 5149 at [48].

 57   Ulan Coal Mine Limited v Howarth & Ors [2010] FWAFB 3488.

 58   See The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [2014] FWCFB 7447; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 at [114].

 59   [2010] FWAFB 3488.

 60   Ibid at [31]; see also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2013] FWCFB 10165 at [44].

 61   [2015] FWCFB 4760.

 62   Ibid at [13] – [15].

 63   [2014] FWCFB 714.

 64   Ibid at [25] – [26], [34] – [35].

 65   Transcript dated 5 July 2017 at PN268.

 66   Statutory Declaration of Deborah Hallam dated 3 July 2017 at Annexure A.

 67   Respondent’s Submissions for Closing Statement dated 13 July 2017 at [60].

 68   Transcript dated 5 July 2017 at PN346 – PN347.

 69   Ibid at PN357.

 70   Ibid at PN379.

 71   Ibid.

 72   Respondent’s Submissions for Closing Statement dated 13 July 2017 at [33].

 73   Ibid at [55].

 74   Transcript dated 5 July 2017 at PN916.

 75   Applicant’s “Response to Sodexo Form F3 Response to Unfair Dismissal Application” dated 25 May 2017 at Annexure 27.

 76   [2017] FWCFB 1714.

 77   Transcript dated 5 July 2017 at [27] – [32].

 78   Exhibit 3.

 79   Transcript dated 14 July 2017 at PN142 – PN146.

 80   Ibid at PN146.

 81   Ibid at PN384 – PN387.

 82   [2014] FWC 2425.

 83   Ibid at [33], [35].

 84   [2014] FWCFB 714.

 85   Ibid at [40].

 86   Ibid at [36], [40].

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