DECISION

Fair Work Act 2009
s.394—Unfair dismissal

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)

Application for relief from unfair dismissal – whether case of genuine redundancy.

[1] This decision concerns seven applications made under s.394 of the Fair Work Act 2009 (Cth) (FW Act). Asciano Services Pty Ltd (Asciano/Employer/Respondent), is the respondent to the applications filed by:

[2] This decision only concerns whether any of the dismissals were harsh, unjust or unreasonable. If any of the dismissals are found to be unfair, they will be further programmed for hearing in relation to what remedy, if any, should be awarded.
[3] The applications have a long history:

(a) All of the applications (with the exception of Mr Pemberton’s application) were filed on 29 July 2015. Mr Pemberton’s application was filed on 9 September 2015.

(b) On 1 September 2015 the respondent filed a response to the applications denying that the termination of the applicants’ employment was unfair because, it said, the dismissals were genuine redundancies.

(c) The applications were heard together on 26, 27 and 30 November 2015. Thereafter, there followed a program for the filing of closing submissions (closing on 5 February 2016).

(d) On 4 May 2016 I handed down my decision. I dismissed all of the applications on the basis that I was satisfied that each matter involved a case of genuine redundancy (Genuine Redundancy Decision). 3

(e) The applicants appealed.

(f) On 25 January 2017 a Full Bench of the Commission decided to allow an appeal against the Genuine Redundancy Decision. The Full Bench was not satisfied that the dismissal of the applicants was a case of genuine redundancy (Full Bench Decision). 4 The gravamen of the Full Bench Decision was the failure of the respondent to consider voluntary redundancy (VR) swaps. The Full Bench held:

“[56] We agree with Senior Deputy President Hamberger that there is no general obligation for an employer to implement or facilitate a process whereby employees whose positions are redundant can swap with other employees who wish to volunteer for redundancy. An employer who does not implement such a process will not automatically be found to have failed to meet the requirement in s.389(2) of the FW Act for the redundancy to be considered to be genuine.

[57] The redeployment obligation is expressed in the context of “reasonable in all the circumstances”. Whether it would have been reasonable in all of the circumstances for an employer to allow employees whose positions are redundant to swap with other employees who wish to volunteer for redundancy, will depend on the facts in the particular case. In the present case:

● The respondent is a large business employing a significant number of employees who undertake the same role as those being made redundant;

● The number of employees performing the same or substantially the same role – train driving – means that allowing a swap would not place onerous training requirements on the respondent;

● In some cases there were potential swaps possibly available in depots reasonably proximate to the depots in which the appellants were working so that the respondent would not have been exposed to costs such as those associated with transferring employees;

● The respondent had previously allowed swaps in similar circumstances; and

● The respondent had suggested this as a possible option to mitigate the effects of redundancy in the round of redundancies which resulted in the dismissal of the appellants.

[58] In these circumstances the possibility of swaps should have been considered, and the respondent’s failure to do so, by removing that option from consideration altogether, resulted in the respondent having failed to comply with its obligations under s.389(2). We are not satisfied that the respondent did all that it was required to do in determining whether it would have been reasonable in all the circumstances to redeploy a person whose position is redundant, by allowing that person to swap with another employee who wished to accept redundancy. Contrary to the submission of the respondent, we do not think that making available the possibility of transfers to Enfield and Moss Vale was sufficient compliance with the obligations imposed by s.389(2) of the FW Act. We are therefore not satisfied that the dismissal of the appellants was a case of genuine redundancy.”

(a) Consequently, the Full Bench quashed the Genuine Redundancy Decision and remitted the matters to the Commission, as presently constituted, for rehearing. 5 On a rehearing of the matters the Commission must consider whether it is satisfied that the dismissal of each of the applicants was harsh, unjust or unreasonable.

(b) On 9 April 2017 the parties were provided with my preliminary views about which paragraphs in the Genuine Redundancy Decision were not disturbed by the Full Bench Decision. They were invited to respond to the same.

(c) The applications were re-heard together on 10 April 2017.

(d) Thereafter there was a program for the filing of further closing submissions.

(e) On 28 July 2017 the parties jointly filed a response to my preliminary views about which paragraphs in the Genuine Redundancy Decision were not disturbed by the Full Bench Decision.

[4] At the rehearing:

a) The applicants were represented by Mr Robert Reitano of Counsel.

b) The respondent was again represented by Mr Simon Meehan of Counsel.

[5] Permission was granted to both parties to be represented because the Commission, as presently constituted, was satisfied that the matters were invested with sufficient complexity such that the matters would proceed more efficiently if the parties were represented. 6

[6] In coming to this decision the parties agreed that I could have regard to evidence and witness statements from the following (from when the matters were first before me):

a) Mr Phillip Mullard (Exhibit R3);

b) Mr Robert King (Exhibit R4);

c) Mr Paul Hopwood (Exhibit R6 & R7);

d) Mr Perry Karavas (Exhibit R8);

e) Ms Catherine Sanjurjo (Exhibit R9);

f) Mr Steven Thomas Thornhill (Exhibit R10);

g) Mr Grant Skinner (Exhibit A8);

h) Mr Mark Andrew Pemberton (Exhibit A4);

i) Mr Mareck Preston (Exhibit A5);

j) Mr Ian Lucas (Exhibit A6);

k) Mr Joshua Ross (Exhibit A9);

l) Ms Abigail Bryant (Exhibit A10);

m) Mr Kadin Hill (Exhibit A11);

n) Mr Michael Deering (Exhibit A3); and

o) Mr Adam Smith (Exhibit A2).

[7] In coming to this decision the Commission, as presently constituted, has also had regard to the following:

a) Applicant’s Outline of Submissions (Exhibit A13);

b) Applicant’s Outline of Submissions in Reply (Exhibit A14);

c) Witness Statement of Mr Mark Andrew Pemberton dated 13 March 2017 (Exhibit A15);

d) Witness Statement of Mr Joshua Ross dated 13 March 2017 (Exhibit A16);

e) Witness Statement of Ms Abigail Bryant dated 13 March 2017 (Exhibit A17);

f) Witness Statement of Mr Kadin Hill dated 13 March 2017 (Exhibit A18);

g) Witness Statement of Mr Ian Lucas dated 13 March 2017 (Exhibit A19);

h) Witness Statement of Mr Mareck Preston dated 14 March 2017 (Exhibit A20);

i) Witness Statement of Mr Grant Skinner dated 13 March 2017 (Exhibit A21);

j) Possible Voluntary Redundancy VR Swaps as at 13 March 2017 (Exhibit A22);

k) RTBU New South Wales News Flash (Exhibit A23);

l) Bundle of documents produced by Kadin Hill under notice to produce (Exhibit A24);

m) Production Bundle provided by the respondent (Exhibit A25);

n) Letter dated 13 February 2013 (Exhibit R11);

o) Witness Statement of Robert King dated 4 April 2017 (Exhibit R12);

p) Witness Statement of Mr Benjamin John Arscott dated 4 April 2017 (Exhibit R13); and

q) Detailed Warning Letter to Mr Ross dated 31 July 2012 (Exhibit R14).

Background

[8] The parties have agreed that the following paragraphs from the Genuine Redundancy Decision can stand in this decision:

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

a) The respondent is a ‘national system employer’ for the purposes of section 380 of the FW Act and is an Australian freight logistics company, operating in railway freight and shipping. 7

b) Each of the applicants was a ‘national systems employee’ for the purpose of section 380 of the FW Act.

c) The respondent was the employer of each of the applicants.

d) Each applicant had completed the minimum period of employment with the respondent. 8

e) The Enterprise Agreement ‘Pacific National Bulk Rail Enterprise Agreement 2013 (Bulk Rail EA)’ (Bulk Rail EA) applied to the applicants, for the purpose of s 382(b) (ii) of the FW Act.

f) The following points made in the respondent’s submissions (Exhibit R1) were accepted by Mr Pryor in transcript:

‘7. The Respondent was advised of a reduction of workload in the form of a ‘rake’ or train set comprising 2 locomotives and 40 wagons from 20 April 2015: see the Bundle at pages 004 and 036. See the Statement of Mullard, paragraph 10.

8. The Respondent was advised by its customers of the reduction in grain volumes for export for the 2014/15 harvest period due to end in June 2015 and that this reduced volume would continue: see the Bundle at pages 004, 09, 36 and 043. See the Statement of Mullard, paragraph 11.

9. The Respondent was advised by its customers that the profile of grain harvested for export, evident in harvests for the two years preceding the 2014/15 season, would continue. Specifically, grain would need to be shipped from Australia by the end of June each year so that it would be available for the export market prior to European grain hitting the market. As this profile continued into the future, this will lead to significantly reduced demand for the Respondent’s services from July to November each year: see the Bundle at pages 004, 36 and 043. See the Statement of Mullard, paragraphs 8, 12 and 13.

10. The reduction in workload and altered profile outlined above led to a reduction in the need for train crews, as well as a requirement for a greater focus on costs.

11. The Respondent initially decided that operationally it required fewer train crew employees operating from its Cootamundra (20) and Parkes (17) Depots. These were full time permanent roles. This decision impacted the Applicants Lucas, Preston and Pemberton who worked at the Cootamundra Depot. This decision also impacted the Applicants Skinner, Ross, Hill and Bryant who worked at the Parkes Depot. See pages 004, 09 and 037 of the Bundle. See the Statement of Mullard, paragraph 16.

12. On or about 18 June 2015, the required reductions in labour were reduced to 19 positions at Cootamundra and 15 at Parkes Depots. See page 119 of the Bundle. The reduction required at Cootamundra resulted from an employee retiring. See the Statement of Hopwood, paragraph 23. The changed reduction required at the Parkes Depot was explained in the Statement of Thornhill at paragraphs 23, 25, 27 and 32.

IBT

13. The Respondent had reduced work for coal at its IBT Depot which impacted (in turn) the work at that Depot. One customer, NRE Limited, ceased operations on 30 June 2014. Another customer, Centennial Coal, announced the closure of one its mines. Centennial Coal also transferred some of its capacity to the Hunter Valley train network due to the unreliability of the Port Kembla Coal Terminal, a facility not operated or controlled by the Respondent. See the Statement of Mullard, paragraph 17 and pages 004, 09, 43 and 063 of the Bundle.

14. The reduction in work led to a reduction in the need for train crews and a requirement for a greater focus on costs.

15. The Respondent decided that operationally it required 7 fewer train crew employees operating from its IBT Depot. These were full time permanent roles. This decision impacted the Applicants Smith and Deering who worked at IBT Depot. See pages 004, 09 and 063 of the Bundle. See the Statement of Mullard, paragraph 20.

All Depots of the Respondent

16. Each Applicant was provided with a letter of termination of employment, 14 days in advance of their dismissal, that identified the reasons for dismissal as redundancy: see page 172 (Preston); page 177 (Lucas); page 182 (Pemberton); page 216 (Deering); page 224 (Smith); page 254 (Ross); page 260 (Skinner); page 266 (Bryant); and page 272 (Hill).

17. Each of the former Parkes and Cootamundra Depot Applicants was provided with a letter of termination of employment that referred to ‘reduced grain volumes and haulage tasks.’ Each of the former IBT Depot Applicants was provided with a letter of termination of employment that referred to ‘reduced demand requirements.’ 9

…

[9] Mr Pryor conceded all points under the heading ‘CONSULTATION’ in the respondent’s submissions 10, subject to the following amendment of point 32:

32. None of the Applicants lodged an expression of interest for voluntary redundancy or a written expression of interest to transfer to Moss Vale or Enfield. 11

[11] Mr Pryor conceded the points mentioned under the title ‘REASONABLENESS OF REDEPLOYMENT’ in the respondent’s submissions 12 (subject to underlined amendments (below)):

“41. The Respondent informed each of the Applicants that it had considered and would continue to consider up to the respective dates of their termination of employment alternative roles for them within the Asciano Group. This began with the 29 May 2015 notification to all affected employees including the Applicants (page 008 of the Bundle), which identified 52 new full time and part time train crew roles at the Enfield and Moss Vale Depots of the Respondent (page 010 of the Bundle) and provided a list of current Asciano Group opportunities for employment (pages 014 and 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. Employees had the right to lodge a written expression of interest for a role at the Enfield and Moss Vale Depots of the Respondent during the consultation period up to 14 June 2015.

42. During the consultation meetings on 1 to 4 June 2015 at Parkes, Cootamundra and Port Kembla, information about redeployment opportunities was provided by the Respondent. See pages 039 and 065 of the Bundle, addressing both internal transfers available to Enfield and Moss Vale Depots and a further redeployment period managed by the Respondent’s careers team during the 2-week period after an employee was notified that they were selected for involuntary redundancy.

43. In the ‘Message from the GM’ sent by email to affected employees, the Respondent referred to the transfer opportunities at Enfield and Moss Vale Depots for any ‘displaced individuals.’ See page 043 of the Bundle.

44. Further notifications were given to employees in a Memo sent on 10 June 2015 about the progress of the labour rationalisation process.

See pages 084 to 090 of the Bundle, especially at page 088 and 089 for employees at IBT and pages 092 to 099 of the Bundle especially at pages 092 and 093 for employees at the Parkes and Cootamundra Depots. Employees were reminded that they could lodge an expression of interest for redeployment to Moss Vale or Enfield Depots until 14 June 2015.

45. Attached to the 10 June 2015 Memo was a set of ‘Questions & Answers’ about the labour rationalisation. With respect to the available transfers to Moss Vale and Enfield Depots, see pages 084 to 085 and 095 to 096 (questions 5 and 6), where employees were given further information about the process for applying to transfer prior to the Respondent making a decision about which employees would be selected for involuntary redundancy. If an employee successfully applied for a transfer, then they would be provided with financial support to relocate in accordance with the respective Enterprise Agreement which applied to them.

46. The ‘Questions & Answers’ issued on 10 June 2015 also referred to the redeployment process that would be followed if an employee was selected for involuntary redundancy.

See pages 086 and 097 of the Bundle (question 10). This referred to the 14-day redeployment period, during which the Respondent may identify a suitable employment opportunity. Unless an employee was redeployed, it was only after that 14-day period that the employee’s employment terminated.

47. The Respondent now addresses additional specific circumstances of the Applicants.

Mr Preston

48. Mr Preston (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 requested and obtained an estimate from the Respondent of the redundancy pay he would receive in order to evaluate whether to apply for voluntary redundancy, but he did not express an interest in it (see the Statement of King, paragraph 28). 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.

49. On 24 June 2015 during a meeting to inform him that he had been selected for involuntary redundancy, Mr Preston was given a termination letter (page 172 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 174 to 176 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.

50. As Mr Preston said during the 24 June 2015 meeting that he wanted to be contacted by Asciano Careers (see the Statement of Hopwood, paragraph 39, and the Statement of King, paragraph 49), 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.” 13

51. During the 24 June 2015 meeting, Mr Preston also said that he would consider one of the truck driver positions in the Patrick division of Asciano Group. See the Statement of King, paragraph 49.(Subject to the truck driver position in fact being a forklift driver position). 14

...

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. 15

…

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. 16

…

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.

62. On 5 June 2015, Mr Pemberton was informed orally about the labour rationalisation including how to express an interest in one of the positions available at Moss Vale and Enfield Depots and also about the opportunity to apply for positions listed on the Asciano Group’s website, a hard copy (as at 29 May 2015) of which was sent to employees on or about that day. See the Statement of Hopwood, paragraph 19 (see pages 014 to 015 of the Bundle).

63. On 24 June 2015 during a meeting to inform him that he had been selected for involuntary redundancy, Mr Pemberton was given a termination letter (page 182 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 184 to 186 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. The list included opportunities for qualified locomotive drivers at Moolabin, Brisbane. See page 184 of the Bundle.

64. As Mr Pemberton said during the 24 June 2015 meeting that he wanted to be contacted by Asciano Careers (see the Statement of Hopwood, paragraph 42), 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.

65. During the meeting on 24 June 2015, Mr Pemberton said that he was exploring opportunities himself and had expressed an interest in positions with Asciano. See the Statement of Hopwood, paragraph 42 and the Statement of King, paragraph 51.

66. On or about 30 June 2015, Mr Karavas of Asciano Careers spoke to Mr Pemberton and during that conversation, informed Mr Karavas that he was only interested in a position with the respondent at Moolabin, Queensland. See the Statement of Karavas, paragraph 20.

67. A further meeting between Mr Hopwood and Mr Pemberton was arranged to take place on 2 July 2015, but Mr Pemberton informed Mr Hopwood that he would not be attending. See the Statement of Hopwood, paragraph 44.

68. Mr Pemberton applied for one of the Respondent’s positions at Moolabin in Queensland. See the Statement of Hopwood, paragraph 28.

69. On 9 July 2015, the day before his employment was due to terminate, Mr Pemberton was informed that this would not occur and that instead, he would work out his notice period while his application for the Moolabin position was being considered. See the Statement of King, paragraph 73 and annexure RK2 to the Statement and the Statement of Hopwood, paragraph 45.

70. Mr Pemberton had been absent on workers compensation during the labour rationalisation process and up to July 2015. In July 2015 during the time when his application for the Moolabin role was being considered by the Respondent, he was certified fit to work other than at Cootamundra Depot. Mr Pemberton accepted a temporary transfer to work at the Moss Vale Depot of the Respondent which he commenced on or about 20 July 2015. See the Statement of Hopwood, paragraphs 45 to 47 and the Statement of King, paragraph 75. 17

…

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. 18

…

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. 19

..

95. Mr Hill’s employment was terminated on 17 July 2015. He was paid his termination of employment entitlements. See page 300 of the Bundle. His termination pay included pay in lieu of notice of termination and redundancy pay.

Mr Ross

96. Mr Ross (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.  20

…

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.  21

…

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.

103. Mr Ross’s employment terminated on 17 July 2015. He was paid his termination of employment entitlements. See page 299 of the Bundle. His termination pay included pay in lieu of notice of termination and redundancy pay.

Ms Bryant

104. Ms Bryant (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. She 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.  22

…

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.  23

…

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

112. Ms Bryant’s employment terminated on 17 July 2015. She was paid her termination of employment entitlements. See page 301 of the Bundle. Her termination pay included pay in lieu of notice of termination and redundancy pay.

Mr Skinner

113. Mr Skinner (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.  24

…

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.  25

…

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.  26

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). 27

[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). 28 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:

“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.”

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). 29

[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. 30 Consequently, compliance with the Code is not a relevant consideration.

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 31. 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 required32.

[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 33. 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. 34

[25] The onus is on the employer to prove that, on the balance of probabilities, the redundancy was due to changes in operational requirements. 35

[26] The respondent submitted that operational changes were implemented (Exhibit R1 36) and this was accepted by Mr Pryor37. Consequently, the Commission, as presently constituted, accepts the respondent’s submissions that as a result of the reduction in customer demand in exports of grain38, the loss of NRE Limited due to its closure, and the loss of another site from Centennial Coal39, 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 Consultation and Change

Consultation

(a) The parties are committed to pursue all opportunities to adopt the world’s best practices through modern technology and continuous improvement to all aspects of Pacific National Bulk Rail operations.

(b) Levels of staffing, equipment and methods of operation may be varied from time to time by Pacific Bulk Rail to reflect the need for safe work practices, improved technology, and new types of machinery or systems, customer service needs or for any other reason.

(c) Pacific National Bulk Rail having made a definite decision that it intends to proceed with any significant change shall issue a notification, in writing, advising:

(i) The affected Employees, or their representatives and their Union;

(ii) The nature of the change;

(iii) The reason for it;

(iv) The timing of it; and

(v) Any other relevant information.

(d)

(i) Pacific National Bulk Rail shall allow the Employee, their representative and the Union, an opportunity to express their view or concerns. Pacific National Bulk Rail will allow Employees, their representative and their Union to actively participate in the consultative process. That is, allow for the reasonable release and payment of Employees to attend meetings and access to entitlements as provided for in this Agreement.

(ii) Pacific National Bulk Rail shall genuinely consult and consider any views or advice from the Employees, their representative and their Union in relation to the proposed change and provide written reasons addressing concerns raised by Employees and or Employee representatives.

(e) This consultative process must be completed within a period of fourteen (14) days from the date of notification by Pacific National Bulk Rail as set out in Clause 30 (c) above, subject to the provisions of Clause 30 (d) being complied with. Failure to comply with the provisions of Clause 30 (d) will delay and or extend the fourteen (14) day period accordingly.”

[30] The respondent concedes it had a duty to consult and submits that for the purpose of section 389(1) (b) of the FW Act, it complied with its obligations under Clause 30 of the Bulk Rail EA to consult all of the applicants about their redundancy. 40

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]:

● “notify the affected employees and the RTBU, in writing, advising them of the nature of the proposed reduction in the workforce, the reasons for the proposed reduction, the timing of the proposed reduction, and any other relevant information;

● allow the RTBU and the affected employees an opportunity to express their views or concerns about the workforce reduction, and to actively participate in the consultative process. That includes allowing for the reasonable release and payment of employees to attend meetings and access entitlements as provided for in the enterprise agreement;

● genuinely consult and consider any views or advice from the RTBU and affected employees in relation to the proposed workforce reduction and provide written reasons addressing concerns raised as part of that process.”

[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). 41 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.42

[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 43, before raising the issue of the Union’s request for an extension of time which was rejected44. 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 Asciano45. 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:

a) the consultation should be meaningful and should be engaged in before an irreversible decision to terminate has been made; 46 and

b) “Consultation is not perfunctory advice on what is about to happen ... [c]onsultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker.” 47

[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.

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 48, he was also aware of the meetings that were conducted between the Union and the respondent in regards to these changes49. Further, he conceded he was aware of the expression of interest form provided, and confirmed he received the form50. 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 employer51. 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 interested52. Mr Pemberton submitted he was unable to attend the meetings of 1-3 June 2015 as he was ill53, 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 interested54. 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 55. 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 position56.

[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.

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. 57

[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. 58

[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 59. 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.

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 60. 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 61. 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 Vale62.

[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 63.

[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” 64. 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 65. 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.

[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.

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 66. Mr Hill did not refute nor accept that he received an email from Mr Cowan on 2 June67, he did see the memorandum of the 10 June 2015, however did not specify on which date68. 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 representative69. 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 termination70. 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 his71.

[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.

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 72. Ms Bryant did not refute nor accept that she received update emails from Asciano as she was away on holiday73. 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 circumstances74.

[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.

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 75. 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 in76. 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 circumstances77.

[83] Mr Preston was informed in writing of the major work place changes to occur at the workplace. Mr Preston attended two separate meetings 78. 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.

[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. 79

[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.”

[9] As has already been observed, a Full Bench of the Commission decided that the termination of the applicants’ employment was not a case of genuine redundancy. Consequently, the Commission has been satisfied of s.385(a), (c) and (d) of the FW Act.

[10] Therefore the task for me upon rehearing the matters is to consider whether I am satisfied the dismissal of each of the applicants was harsh, unjust or unreasonable. The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the FW Act:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
b) whether the person was notified of that reason; and
c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
h) any other matters that the FWC considers relevant.”

[11] Ordinarily I would be under a duty to consider each of these criteria in reaching my conclusion. 80 However, because the dismissal was not a case of genuine redundancy the consideration of the matters specified in s.387(a), (b) and (c) are neutral, unless in the circumstances another valid reason is identified. No other valid reason was identified by the respondent.

[12] Matters arising from the redundancy (e.g. a failure to consider the possibility of voluntary swaps, or the unfair application of a selection criteria) fall within s.387 (h). 81 It was this approach that I proposed to the parties without objection.82

[13] Therefore, in relation to each of the applicants I am satisfied that:

Valid reason - s.387(a)

a) The respondent did not assert that the reasons for the dismissal of the applicants were not related to their capacity or conduct. Accordingly there cannot have been, and there was not, a valid reason for the dismissals related to the applicants’ capacity or conduct.

b) In all the circumstances of these cases I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of each of the applicants was harsh, unjust or unreasonable.

Notification of the valid reason and opportunity to respond - s.387(b), (c)

a) The matters in s.387(b) and (c) of the FW Act deal with whether there was procedural fairness in respect of a reason for dismissal related to capacity or conduct.

b) The dismissal of the applicants was not related to capacity or conduct.

c) Consequently, in all the circumstances of these cases I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of each of the applicants was harsh, unjust or unreasonable.

Unreasonable refusal by the employer to allow a support person - s.387(d)

a) Where an employee protected from unfair dismissal requests a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

b) In the present matters all of the applicants were represented by their union, the RTBU. There was no refusal (unreasonable or otherwise) to allow them to have a support person.

c) In all the circumstances of these cases I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of each of the applicants was harsh, unjust or unreasonable.

Warnings regarding unsatisfactory performance - s.387(e)

a) The respondent did not assert that the dismissal of the applicants related to their unsatisfactory performance, so this matter is not relevant to my consideration as to whether the dismissals were harsh, unjust or unreasonable.

b) In all the circumstances of these cases I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of each of the applicants was harsh, unjust or unreasonable.

Impact of the size of the Respondent on procedures followed and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(f), (g)

a) The size of a respondent’s enterprise may impact on the procedures followed by it in effecting a dismissal. Further, the presence of dedicated human resource management or expertise in a respondent’s enterprise should ensure a higher standard of management of human resources.

b) In the present matter the respondent is a large employer and well resourced.

c) In all the circumstances it is apparent that the size of the respondent did not have any adverse effect on the procedures it adopted in dismissing the applicants. In fact it could have been expected that an employer such as the respondent, with the resources it had at its disposal, would have done better in the execution of the KSA process (which I deal with later).

d) In all the circumstances of these cases I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of each of the applicants was harsh, unjust or unreasonable.

Any other matters that the FWC considers relevant – s.387(h)

[14] Having considered each of ss.387(a), (b), (c), (d), (e), (f) of the FW Act, it remains necessary to now consider subsection 387(h) in respect of each of the applicants. Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.

[15] Once I have considered s.387(h) in combination with each of ss.387(a), (b), (c), (d), (e), (f) of the FW Act, I must then decide (in respect of each applicant) if, in all the circumstances, the termination of each of the applicants’ employment was harsh, unjust or unreasonable. Deciding whether the termination was ultimately unfair involves the exercise of discretion.

[16] Although section 387 includes matters that the Commission must take into account in deciding how to exercise its discretion, the discretion conferred is otherwise expressed in general, unqualified terms. Of course, the discretion conferred must be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative purpose. Further, the discretion is also confined by the subject matter, legislative context and purpose.

[17] In exercising the discretion, guidance can be drawn from s.381 of the FW Act. It provides that:

“Object of this Part

(1) The object of this Part is:

a) To establish a framework for dealing with unfair dismissal that balances:

a. The needs of business (including small business); and

b. The needs of employees; and

b) To establish procedures for dealing with unfair dismissal that:

a. Are quick, flexible and informal; and

b. Address the needs of employers and employees; and

c) To provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: the expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

Submissions on behalf of the applicants at the rehearing

[18] On behalf of the applicants it was submitted that:

“4. The applicants say that their dismissals were unfair for four main reasons.

5. First, they say that their dismissals were unfair because the process (known to Asciano and the applicants as the ‘Knowledge and Skills Assessment’ or ‘KSA’) that led to them being selected for redundancy rather than anyone else was itself unfair and was certainly not objective or transparent and was partial in its application.

6. The applicants submit that the KSA process was both procedurally and substantively unfair. It was procedurally unfair because at no time before the decision was made to dismiss them (or even after) were the applicants entitled to be heard or to attempt to influence any matter in it which was adverse to their interests. It was substantively unfair because it was not transparent, those applying it were unaccountable, there was nothing done to ensure the process was applied consistently and equally and it was open to abuse based as it was on the subjective opinion of managers.

7. Second, they say that their dismissals were unfair because in the circumstances it would have been reasonable for them to be redeployed within the respondents business. In this regard the applicants expressly rely upon the findings of the Full Bench in Skinner & Ors v Asciano Services Pty Limited t/a Pacific National Bulk 83 which was to that effect.

8. Third, the applicants say that their dismissal were unfair because of the failure to consider redundancy swaps, to identify what redundancy swaps might reasonably be available - by asking questions or sending emails - to clearly articulate to the applicants what redundancy swaps were available, to permit them to take up those swaps and to consult with them and the proposed retained workforce of train drivers.

9. Fourth, they say that the complete failure to have any regard at all to the applicants personal circumstances (treating them like commodities and not human beings) led to their dismissals being unfair.

10. It is useful to deal with each of the asserted grounds of unfairness in turn.

The Knowledge and Skills Assessment Process (KSA)

11. The sole and only determinant in the selection of individuals who were to be made involuntarily redundant (and therefore resulted in the applicants being dismissed from their employment) throughout the redundancy process of 2015 was that of the KSA process 84.

12. The evidence of Mr King 85 and the Production Bundle86 are particularly relevant to this issue.

13. The purpose of the KSA process was to achieve a reduction in the overall headcount of the Asciano’s train driver workforce across the Bulk Division. It was not directed to classifications or particular types of train drivers, but rather to the reduction of train driver numbers per se. 87 The notion that it was about selecting particular kinds of train drivers (e.g. drivers under instruction or second persons or mentors) for redundancy was only relevant when KSA scores were assessed (the drivers classification was one of the objective criteria to be attributed a score), but was otherwise irrelevant to the exercise. The suggestion more recently that somehow train driver classification otherwise figured in the equation should be rejected.

14. Further, the notion of head count reduction (and redundancy) should not be a disguise for denying employees an opportunity to be heard if they are to be dismissed for conduct or performance issues. Nor should it be a smokescreen for cleaning out what managers considered to be, for any reason, unwanted employees.

15. The KSA process involved the development of criteria against which employees would be scored from 1 to 5 and then have their scores totalled and ranked against the rest of the train driver work force. The lowest scoring train drivers would then be dismissed from employment by reason of redundancy.

16. The final criteria that were applied to the applicants were:

a. Positive attitude;

b. Attendance, punctuality and reliability;

c. Commitment to customer service;

d. Supportive team behaviour towards peers and leaders;

e. Is proactive and demonstrates initiative;

f. Demonstrates the value of ‘home safely everyday’;

g. Performance record;

h. Driver level;

i. Technical qualification;

j. Time driving; and

k. Experience at multiple locations. 88

17. The guidelines distributed to the local managers conducting the KSA scoring process outlined the scores that could be given. Each of the criteria were to be assessed and given a score between 1 (the lowest possible score) and 5 (the highest possible score) with each score for each criteria being subject to a different descriptor which determined the score to be given.

18. The descriptors which were used to determine scores in many cases (and especially in the case of the subjective criteria referred to below) left a great deal of room for interpretation especially in relation to some of the more subjective criteria, more of which will be addressed in a moment. The guidelines contain the criteria and the descriptors and it is not necessary to address each of them here. 89

19. In the documents distributed to managers there was no suggestion that half scores or decimal places could be awarded and nor were there any descriptors that suggested so much. The system of scoring only ever contemplated the use of whole numbers. 90

20. The managers completing the KSA scoring process for the applicants were informed that they must be able to substantiate all the KSA scores with supporting evidence. 91 This was not an optional requirement – it was mandatory (with only a few minor exceptions none of that ‘evidence’ was produced to the Commission – a matter to which these submissions will return later).

21. After managers assessed the scores there was a ‘calibration’ meeting where people unknown (in the sense that they had nothing to do directly with employees) to the employees ‘calibrated’ scores. The managers who knew the employees and had assessed them were not involved in the ‘calibration’ meeting. 92 ‘Calibration’ (apparently) meant some scores were changed although it is not now possible to know whose scores where changed or why which perhaps emphasises again the lack of transparency and accountability in the process.93

22. The people at the ‘calibration’ meeting (much like the Commission) had no evidence about the scores and why people were given the scores they received. All they had were the score sheets that had been completed by mangers which contained names and scores alongside each of the eleven criteria. 94

23. Part of what was enshrined in the process was that an employee (or anyone on their behalf) was not given their score nor told how they had been assessed until after the decision to dismiss them was made. In fact, employees knew nothing until after they were told they were being dismissed. They were not entitled to correct errors of any kind at any time and managers were instructed not to listen or take into account anything they might have to say no matter what.

24. There was a meeting after an employee was told they had been selected for redundancy, but this, as will be seen later, was not a meeting at which an employee would be heard. So far as the KSA process was concerned no correspondence would be entered into at all. There was to be no debate about the scores and Asciano would not countenance any attempt by employees to increase their scores. 95

25. Immediately, it should be said that there were three very troubling aspects of the KSA process – employees had no opportunity to influence the KSA score they received, approximately half of the criteria were subjective (discretionary) and thirdly, the so-called ‘calibration’ meetings proceeded when there was no evidence at all to be looked at. 96 Each of these matters together with the other deficiencies is the KSA process are further developed below.

Subjectivity and the KSA Process

26. One of the requirements imposed throughout the KSA process was that the criteria and related scores for all employees must be justifiable and substantiated by evidence which included file notes, performance review documents, performance outcomes. 97 Mr King confirmed that ‘evidence’ meant ‘documents’.98

27. This is significant because employees who were fortunate enough to receive praise in documents or unfortunate enough to receive discipline in documents were at an advantage or disadvantage over those who were only subject to word of mouth communication. 99 It also highlighted the fact that there should have been documents in existence to support each and every one of the applicants and the other 107 employees’ scores – yet only a handful of documents in fact existed.

28. Some of the KSA criteria – such as driver level and technical qualification, time driving and experience at multiple locations – are objective standards that can be measured in one way or another. I will return to the ‘fairness’ of some of these criteria later.

29. Some of the KSA criteria – such as positive attitude, commitment to customer service, supportive team behaviours towards peers and leaders, is proactive and demonstrates initiative and demonstrates the value of ‘home safely every day’ - are inherently subjective.

30. There is not much of an explanation about what these things meant in the context of the KSA and it is fair to say that the explanations afforded clearly had the potential to mean different things to different people.

31. In any event the subjective criteria were rather obviously subject to discretionary application by managers. Those criteria were not capable of measurement nor could they be (or were they) supported by evidence (documents, as to which see later). In this regard it is telling that no evidence about them went to the ‘calibration’ meeting and no evidence of any kind relevant to them as it applied to the applicants has been put before the Commission. The proposition that these criteria were subjective was accepted by the respondent. 100

32. These criteria left open the real prospect of differential application across mangers applying the criteria and preferential treatment both across managers and within managers groups of employees.

33. There is no possible objective measure that would, for example, support the lowest score of ‘1’ for positive attitude. For almost half of the criteria the sole determinative factor of the resulting scores was simply the untested and unchallengeable opinion of the relevant manager. The manager did not have to (and having regard to the process adopted did not) explain or justify at all why she or he gave the score he gave to anyone. Such discretionary application of the KSA guidelines concerning the way in which scores were to be attributed undermines the credibility and fairness of the entire process and infects the decision to dismiss each of the applicants with unfairness.

34. A few examples illustrate this point. Mr Lucas received high scores for the categories which could be substantiated objectively or by recourse to by documentation: driver level, technical qualification, time driving and experience at multiple locations 101 (although even in respect of some of these Asciano did not attempt to put evidence before the Commission concerning them). The five subjective criteria - positive attitude, commitment to customer service, supportive team behaviour towards peers and leaders, the taking of initiative and demonstrating a commitment to ‘home safely everyday’ - were all attributed the lowest possible score of 1, with the exception of attendance and punctuality.102

35. Mr Pemberton’s circumstances provide another illustrative example. Mr scored ‘2’ on the criteria demonstrates the value of ‘home safely everyday’ yet he had never had any safe working breaches. 103 There is no other evidence that would inform his low score of 2.

36. Mr Preston’s scores provide a further example. He scored ‘1’ on the criteria of ‘supportive team behaviours towards peers and leaders’ 104 despite the fact that he had never had any difficult getting along with his colleagues.105

37. Mr Skinner was told he was made redundant because he was ‘arrogant and disrespectful’ (which words appear nowhere on the KSA documentation). He scored ‘3’ for attendance despite having had only three sick days in four years and ‘2’ for safety despite having had no safe working incidents. 106 Note too Ms Bryant’s evidence.107

38. The ability for an individual’s results to reflect higher scores on the criteria that are objective and can be substantiated - whilst scoring the lowest possible scores on the subjective criteria – suggest the process is open to abuse especially where by and largely the number of objective criteria is matched by the number of subjective criteria. Mr Lucas lost his job solely based on the subjective opinion of a manger which was untested and unchecked and may have done no more than reflect the fact that Mr Lucas’ manager did not understand the process or, far worse simply did not like Mr Lucas and Asciano made no attempt to justify in this hearing. It brought no evidence to prove Mr Lucas’ subjective scores even though the KSA process was under scrutiny.

39. In any event, this begs the question as to how it could be considered just or fair to terminate the employment of an employee based on a scoring process which simply cannot be substantiated with evidence, which may do nothing other than identify the employees who were held in favour by a manger or managers and those who were not, for which no one is ultimately accountable and in circumstances where an employee could not challenge or in any way contest the scores attributed to them.

40. Of course, had the process been accountable and transparent, the complaints made here about the subjective views of managers determining results might be different and may not sound so loudly. The need to explain scores or the ability in an employee to challenge a score would readily counter the criticism levelled here – but one of the features of the entire process was of course the complete absence of accountability, transparency and procedural fairness.

41. The Commission has no evidence at all about how the scores for anyone, including the applicants were derived and is in no position to determine at all whether the scores attributed to each applicant or to other employees were fair or had any basis in fact.

42. It is hardly surprising that Asciano made little effort to lead evidence supporting the KSA scores of the applicants in respect of each criterion. For one thing, the lack of all of the evidence being produced strongly suggests that it does not exist and managers did not move forward with their assessments based on evidence as required by the process. This is also because so far as the subjective criteria are concerned there could be no evidence of them.

43. The only evidence that Asciano could produce was by way of confronting one or two of the applicants with disciplinary warnings they received two or three years ago in cross examination. 108 The absence of evidence at all about the subjective criteria is all the more remarkable in that context and leads inexorably to the conclusion that whatever ‘evidence’ managers or Asciano had in that respect would not have assisted Asciano in its case.

44. It hardly need be pointed out is that each of the applicants were very close to not having their employment terminated having regard to the closeness of the scores finally determined. 109 Ms Bryant, Mr Hill, Mr Ross and Mr Skinner were selected for dismissal because they scored 23, 23, 24.5 and 27.5 respectively when a score of 27.5110 would have saved them from dismissal. In other words, an increased score of 4.5 (or 1 point for each of the subjective criteria alone) would have saved them from dismissal. Mr Pemberton, Mr Preston and Mr Lucas scored 18, 22 and 24 respectively and a score of 25 would have saved them from dismissal.111

45. These small differences reflect the fact that even the most basic error or subtle exercise of discretion against an employee had the capacity to have enormous effects on the outcome for these employees. It could not be assumed that in any fair or transparent process the applicants would have nonetheless lost their employment.

46. It should also be noted that the process was in other respects unfair but it is not necessary to develop fully those unfairnesses here. For example, an employee who had the misfortune of suffering a serious illness and therefore had many days absent from work did not have that misfortune taken into account in the process by being scored down on the objective criteria of ‘absenteeism’. Mr Pemberton provides an example of this in that he has never had an issue with his leave other than his work-related injury 112 – he scored ‘1’ for absenteeism, punctuality and reliability.113 Employees were effectively punished for being sick and availing themselves of their lawful entitlement to sick leave.

47. Likewise, an employee who had a disciplinary issue within weeks of the three year cut-off date for considering such issues was treated differently to an employee who was one day outside that period yet had a more serious disciplinary issue.

48. Nor is it entirely clear why disciplinary matters concerning matters over which employees have already been taken should be considered or why employees who have used award or industrial rights to sick leave should be treated differently to those who have not.

How were managers equipped with the ability to apply the scores?

49. The matters referred to in the immediately preceding section of these submissions are made worse when regard is had to the way in which Asciano implemented the process, leaving managers singularly ill-equipped to deal fairly with the task with which they were entrusted.

50. It was assumed by Asciano that the managers had a complete and presumably consistent understanding of the scoring process and how the scoring guidelines were to be applied. 114 Unless questions were raised regarding the application of the KSA scoring guidelines to each individual, there was an assumption on behalf of the respondent that the guidelines for scoring were understood by all involved in the process.

51. There was no action taken to ensure that all managers involved in the scoring process understood the criteria, guidelines and descriptors in the same way as other managers did.

52. A lack of a consistent understanding as to the application of the guidelines left open the prospect of differential application.

53. It is to be remembered that six different managers conducted the KSA assessments at Parkes and three different manages conducted them at Cootamundra. As a matter of ordinary human experience, it could not be assumed, as it appears Asciano has, that all of those managers consistently applied the KSA process across the relevant workforce. This is quite different from the concern that individual managers may have favoured or disfavoured particular employees.

54. The fact that managers probably did not understand the process is given credence by the fact that even Mr King, one of its authors, had to ‘guess’ about how the attendance, punctuality and reliability criteria was to be applied. 115

55. The fact that managers did not understand the process is illustrated by the fact that contrary to the written words of the guidelines some managers were awarding scores of ‘.5’. The guidelines do not provide for that eventuality and it is completely unknown on what basis a manager or managers were determining to award ‘.5’ to employees – there is no criteria or in the guideline for 1.5, 2.5, 3.5 and 4.5. 116 It would appear that some managers were applying a different KSA to the one that Asciano sought to implement yet Asciano did nothing about that. If in matters as simple as this, managers did not understand and apply the process the inference runs hard and long that they did not understand the more intricate subtle nuances of the scoring criteria and descriptors.

56. The KSA process as applied was open to abuse. This was accepted by the respondent yet nothing appears to have been done about that. 117

57. There is no evidence to support the conclusion that the KSA process was conducted fairly and equitably. Asciano is peculiarly placed to have led that evidence, but did not do so in the face of the applicants outline filed before the case commenced which identified the KSA process and its fairness as being squarely in issue. In the case of the applicants there is no adequate indication or measure concerning the scoring guidelines in terms of fair and reasonable assessment regarding the seven applicants. The Commission has no way of knowing how the applicants’ scores were arrived at (let alone how any other employees score was arrived at).

Human resources and the KSA process

58. Asciano refers in its evidence to a ‘calibration meeting’ that was held on 12 June 2015 regarding the final KSA scores for all employees at Cootamundra, Parkes and Junee. 118 At this meeting, Pia Daish, Barry Daly, Gary Troy, Phillip Mullard and Robert King were in attendance.119 None of the individuals who attended the calibration meeting were directly involved with any of the applicants during their day-to-day work related activities whilst employed by the respondent.

59. Asciano suggest that the purpose of this ‘calibration’ meeting was to assess whether the scoring guidelines had been correctly applied by the managers. 120 Mr King said that the purpose of the ‘calibration’ meeting was to test the scores of each employee and to ensure as far as possible that they could be supported by extrinsic evidence.121 But how on earth could that be done without the mangers present and without having the evidence upon which the managers were bound to act in front of them. Mr King frankly conceded the evidence was not available at the calibration meetings.

60. Throughout the cross-examination of Mr King, it became apparent that no extrinsic material was relied upon to determine whether the KSA scores were fair or correct. Mr King claimed that the scores were evaluated in accordance with evidence that could substantiate these scores, but the only documents available for assessment at this meeting were the spreadsheet containing the final KSA scores for each individual. 122 The reality is that the scores were simply accepted.123

61. It was also suggested that in between the calibration meeting and the meeting with each of the seven applicants informing them of the decision to terminate their employment by way of involuntary redundancy that a phone call was made to each of the managers to confirm that the scores were correct. This important aspect of the process, insofar as it relates to the finalisation of the KSA scores, was omitted from the witness statement of Mr King. 124 In any event it makes little difference to the outcome that people adhered to what they may well have wrongly said earlier.

62. Mr King’s evidence about how the calibration meetings worked and what information was available at the calibration meetings really amounted to no more than the scores attributed to employees were simply accepted. When challenged about how Mr Bryant’s scores were calibrated, Mr King’s evidence was all over the place (see PN984-1022).

63. The one thing that is clear is that the scores were not tested in any way to ensure their validity. There was no cross checking or examining of individual managers to make sure they were awarding scores impartially and fairly and consistently. Even when a mistake was attributed to the KSA score results in respect of Mr Skinner no further actions were taken to ensure that the process was being correctly applied at a local level. 125

Inability of the applicants to challenge or influence the KSA scores

64. There is no issue that the applicants (and other employees) were not permitted to have any say in their KSA scores or to be heard upon them at any time in the process. The first they knew about what their scores were was at a meeting after they were told they had been selected for dismissal by reason of redundancy). 126 At that meeting they were told their scores but it was not an opportunity to be heard and from ‘go to woe’ an employee was not given any opportunity at all to be heard about their scores or the reasons for their scores.127

65. The unfairness in the process is exemplified by the almost complete lack of evidentiary materials substantiating the KSA scores attributed to the applicants and the absolute inability of the applicants (or anyone on their behalf) to challenge or influence the scores accorded to them or any other aspect of the way in which they were assessed. These matters alone compel a finding that the dismissal of each of the applicants was unfair.

66. It is important to keep in mind the fact that the Commission should not assume or presume or infer that had the applicants been afforded a fair opportunity to contest their scores (or the criticisms made of them) that a their scores would not have changed such as to enable them to save their employment. That is, it is to be presumed that Asciano would have approached the issues raised by them with an open and fair mind (because to do otherwise would itself have been unfair). The question of allowing the applicants to know the case against them and contest it was no matter of theoretical possibility or of simply going through the motions.

The failure to redeploy the applicants

67. The Full Bench in the earlier proceedings in Skinner & Ors v Asciano Services Pty Limited T/A Pacific National Bulk 128 found that in the circumstances it would have been reasonable for the applicants to be redeployed within the Asciano’s business. This finding had two effects. First it took the dismissal out of the realms of a genuine redundancy such as to attract the immunity from attach as an unfair dismissal case. Second, it has the knock on effect of highlighting why the dismissals are in each case unfair – the applicants as a matter of fairness should have been redeployed rather than have had their employment terminated. Terminating their employment rather than redeploying them meant that the dismissal were unfair.

68. It is also relevant that the Full Bench found (and it would appear Asciano accept) that it did not consider redundancy swaps when it dismissed each of the applicants from its employment. The Full Bench found, and the Commission as constituted would accept the finding, that is was reasonable for the Asciano to consider redundancy swaps. Its failure to do so meant that dismissing each of the applicants was unfair.

69. The fact that there were at least four people interested in voluntary redundancy swaps 129 when no investigation inquiry or consideration was even given to the matter by Asciano demonstrates that there was a practical possibility of swaps being availed of to save the applicants employment. Simply putting the whole question of swaps out of the equation for no good reason was made the dismissal of the applicants unfair.

70. There was no satisfactory explanation for why Mr Searle was the beneficiary of a voluntary redundancy swap, but the applicants could not have been treated in the same way. 130

71. Further, Asciano had available to it prospect of offering redundancy swaps. There was no sound or rational basis for not considering redundancy swaps in the circumstances. Mr Prior’s evidence 131 demonstrates how easy it would have been for Asciano to consider and investigate the prospects of redundancy swaps at the time it dismissed each of the applicants and the real likelihood that in doing so it would not have been necessary to terminate the applicants employment at all.

The failure to consider the applicants personal circumstances

72. As noted earlier the sole criteria applied in the selecting employees for redundancy was their KSA scores. Asciano did not take into account any of the applicants’ personal circumstances when it came to dismiss them. It needs to be remembered that the dismissal of each applicant was through no fault of their own – it was Asciano that determined to engage in a headcount reduction. If headcount reduction was what the process was really about, there was no reason at all as to why personal circumstances could not have been considered in the process.

73. In those circumstances it was incumbent upon Asciano to give consideration to the peculiar personal circumstances of each employee especially having regard to the overall harshness that any decision to terminate their employment had bearing in mind their location in country New South Wales. In some respects this ground of unfairness really highlights in combination with the failure to consider swaps the unfairness generally of Asciano’s approach.

74. Mr Hill’s circumstances are a good example – he had a young family and a partner who had only recently settled in Parkes. 132 Mr Preston’s personal and family circumstances were also of note – he only recently moved for family reasons (the death of his niece) with a partner who had recently lost her job for medical reasons133 (Note too that Mr Preston had a sound explanation for his then recent poor absenteeism record that was not taken into account in the KSA process).

75. The failure to invite the applicants to put forward their personal circumstances and to have them considered in selecting employees for redundancy was a glaring omission rendering the dismissals unfair.”

Submissions on behalf of the respondent at the rehearing

[19] The respondent submitted that:

“3. There are four reasons advanced by the applicants as to why their dismissals were each harsh, unjust or unreasonable. They are dealt with seriatim below.

Knowledge and Skills Assessment (KSA)

4. It is not in dispute that the applicants were each dismissed because Asciano no longer required their jobs to be performed because of changes in the operational requirements of its enterprise. 134 The reason for each of the dismissals was redundancy.

5. It is not in dispute that Asciano satisfied its consultation obligations under the Pacific National Bulk Rail Enterprise Agreement 2013. 135

6. There is no suggestion that the selection criteria chosen by Asciano did not comply with the terms of the Pacific National Bulk Rail Enterprise Agreement 2013. 136

7. There is no dispute that Asciano consulted with the RTBU on the KSA and the KSA had been in use for some time. 137

8. In the appeal decision in Skinner & Pemberton and Others v Asciano Services Pty Ltd [2017] FWCFB 57, the Full Bench concluded 138 that it was not satisfied that Asciano did all that it was required to do in determining whether it would be reasonable in all the circumstances to redeploy a person whose position is redundant, by allowing that person to swap with another who wished to accept redundancy.

9. But for that (generalised) finding (which is dealt with later in these submissions) each of applicants’ dismissals would have been a case of ‘genuine redundancy’, and enquiry by the Commission into the KSA selection process would have been irrelevant and impermissible. 139 Put simply, the mandated result under the FW Act would have been that none of the applicants was unfairly dismissed.140

10. The case that the applicants in substance are each seeking to advance on the rehearing so far as it relates to the KSA selection process is that, despite the incontrovertible fact that the reason for each dismissal was that the job that each applicant was performing was no longer required to be performed due to changes in Asciano’s operational requirements, 141 their dismissal was unfair because they were selected for dismissal instead of someone else.

11. It is fanciful to suggest that in a redundancy situation, a dismissal was unfair if the redundancy selection process, free from the alleged shortcomings, would have made no difference to the result (i.e. the employee would have been dismissed anyway). In this regard the applicants bear the onus of demonstrating that, but for the alleged shortcomings in the selection process, they would not have been selected for dismissal. The principle that “he who asserts must prove” is operative. 142

12. However the applicants have chosen not to pursue such a case. Rather, they each advance a high level criticism of the selection process. This was a forensic choice they each made, despite having obtained access to the human resources files of every employee affected by Asciano’s redundancy decision. For the reasons that follow, their cases face insurmountable hurdles in reliance on this type of challenge to the selection process.

13. It has been authoritatively held that the process for selecting individual employees for redundancy is not relevant to whether a dismissal was a case of ‘genuine redundancy’ for the purpose of section 389 of the FW Act. 143 The applicants have not grappled with or attempted to explain how the same issue is relevant under section 387 of the FW Act, when the incontrovertible reason for each dismissal is redundancy.

14. In UES (Int’l) Pty Ltd v. Leevan Harvey [2012] FWAFB 5241 the Full Bench rejected the proposition that issues of selection for redundancy were relevant to section 387(a) of the FW Act. The Full Bench reasoned that the dismissal did not relate to the applicant’s capacity or conduct in the requisite sense. By parity of reasoning the Full Bench concluded that s.387(b) and (c) of the FW Act, which deal with whether there was procedural fairness in respect of a reason for dismissal related to the employee’s capacity or conduct, was a neutral consideration because the reason for the applicant’s dismissal was redundancy.

15. No relevant distinction in principle can be drawn in the present cases. In UES, the applicant, a storeman, was selected for dismissal on the ground of redundancy from a group of 3 storepersons. The selection involved evaluation of the applicant’s comparative efficiency as against the other storepersons, which evaluation the Commissioner at first instance regarded as not sound, defensible or well founded. The applicant was not notified of or given an opportunity to respond to the reason for his dismissal related to his capacity or conduct.

16. The Full Bench upheld the challenge to the Commissioner’s finding that that there was no valid reason for the applicant’s dismissal, because it was founded on a conclusion that the reason for the dismissal related to the applicant’s capacity. The Commissioner’s decision was quashed and the Full Bench proceeded to determine for itself the application for an unfair dismissal remedy. In doing so, the Full Bench correctly excluded from its consideration the selection process adopted by the employer. 144

17. In Cliffe v Construction Glazing Pty Ltd [2015] FWC 1008 O’Callaghan SDP stated at [60]:

“Notwithstanding the decision I have reached in this respect, it is appropriate to note that, even if I had concluded that the merits of the application should be considered, the evidence before me would have resulted in the dismissal of Mr Cliffe’s application. Mr Cliffe challenges the correctness of the Full Bench decision in UES Int’l. I consider that the UES decision means the reasons for Mr Cliffe’s selection for redundancy are not open for review by the FWC. Furthermore, the evidence is overwhelmingly indicative of the business downturn forming the basis for the termination decision.”

18. That is the approach the Commission should follow in the present cases.

19. If contrary to these submissions, the Commission decides that it is relevant to consider the fairness of the redundancy selection process, then Asciano makes the following submissions.

20. Self-evidently in circumstances where each of their positions was redundant, challenges by each applicant to the fairness of the process for their selection is an arid exercise unless it can be demonstrated that the alleged procedural deficiency, if cured, would have led to a different result, namely another employee being selected for retrenchment instead of them. 145

21. The applicants have made no meaningful attempt to make that connection.

22. With the exception of Mr Skinner, the Commission would reject the applicants’ generalised submission that they each ‘were very close to not having their employment terminated having regard to the closeness of the scores finally determined..” as set out in Exhibit A25. 146 The position in respect of each applicant was as follows:

a. Bryant (score 23) – Bryant had the (equal) second lowest rating at Parkes depot. There were 9 employees with better ratings who were selected for involuntary redundancy. She would have had to achieve a score of 28 to avoid selection;
b. Hill (score 23) – Hill had the (equal) second lowest rating at Parkes depot. There were 9 employees with better ratings who were selected for redundancy. He would have had to achieve a score of 28 to avoid selection;
c. Ross (score 23.5) - Ross had the third lowest rating at Parkes depot. There were 7 employees with better ratings who were selected for redundancy. He would have had to achieve a score of 28 to avoid selection;
d. Skinner (score 27.5) – Skinner ranked 51^st out of 63 employees at Parkes depot. He would have avoided selection if his score was increased by half a point or more.
e. Pemberton (score 21) – Pemberton ranked 48^th out of 49 employees at Cootamundra depot. He would have had to achieve a score of 27.5 or more to avoid selection;
f. Lucas (score 24) – Lucas ranked 46^th out of 49 employees at Cootamundra depot. He would have had to achieve a score of 27.5 or more to avoid selection.
g. Preston (score 22) - Preston ranked 47^th out of 49 employees at Cootamundra depot. He would have had to achieve a score of 27.5 or more to avoid selection.

23. It is accepted that Mr Skinner was close to the cut off by virtue of his KSA score of 27.5. However, he led no evidence to persuade the Commission that he should have been given a higher score, or that the employees who were ranked immediately above him were scored too highly. The Commission is in effect being asked to second guess the Depot superintendents and supervisors who gave the rankings. 147

24. The Commission is presented by the applicants with a high level criticism of the selection process, including:

a. The descriptors left a great deal of room for interpretation; 148
b. There was no documentary suggestion that half scores could be awarded; 149
c. Scores were ‘calibrated’ by people unknown to the employees; 150
d. The people who did the calibration had no evidence about the scores and why people were given the scores; 151
e. Employees were not given their score until after a decision to dismiss them was made, at which time no correspondence would be entered into; 152
f. Employees had no opportunity to influence the KSA score they received; 153
g. Criteria used included subjective criteria. 154

25. There is nothing inherently wrong with subjective criteria. Any meaningful evaluation of an employee’s performance necessitates some element of subjective evaluation.

26. There was no evidence of any adverse interpretation of the descriptors affecting the scores of any applicant.

27. There is nothing inherently unfair with a half point score. The fact that some employees were given ‘half scores’ has not been shown to have adversely affected any of the applicants.

28. It is true that the applicants were not given an opportunity to be heard before their KSA ranking was completed. However, despite a full opportunity in these proceedings to explain the facts upon which they say their ranking should have been higher (and/or other employees ranking lower) and thereby placed them in a position of safety from dismissal, no persuasive evidence was adduced at all.

29. The criticisms made of the calibration exercise must be evaluated in context, which includes that no applicant suffered a reduction in their score. 155

30. The results of the calibration were as follows: 156

Name	Original KSA score	Final KSA score
Hill	22	23
Bryant	22.5	23
Ross	24	24.5
Skinner	25.5	27.5
Pemberton	16	21
Preston	22	22
Lucas	24	24

31. Even if the Commission is persuaded that there were aspects of the selection process that were unfair, the fact of unfairness in the employer’s decision making process is but a factor to be taken into account in determining whether a termination of employment was harsh, unjust or unreasonable. 157

32. Indeed the Commission has concluded that a failure to consult does not necessarily mean a dismissal was harsh, unjust or unreasonable: (UES) at [49]; Maswan v Escada Textilvertrieb t/as Escada [2011] FWA 4239 at [39]; Ventyx Pty Ltd v Murray  [2014] FWCFB 2143 at [151]-[162].

33. The critical question is, ‘would the result have been any different in the absence of any particular unfairness found to have existed in the selection processes. The Commission would need something more than high level criticisms to come to such a conclusion on a case by case basis.

34. As to substantive unfairness, the applicants each contend that: (i) the KSA selection process was not transparent (ii) those applying it were unaccountable, (iii) there was nothing done to ensure the process was applied consistently and equally (iv) it was open to abuse.

35. Those criticisms address only the potential for unfair outcomes in the KSA ranking process. However there is no demonstrable unfairness in the scoring outcomes, by reference to either the actual scores of the applicants or the relative scores of the applicants vis-à-vis each other and all other employees of Asciano who were ranked.

36. None of the applicants have attempted to challenge the specific scores that were assigned to them for each criteria. Instead some of them have made general assertions about aspects of their performance. In this regard, and by way of example, Hill said nothing in his evidence about the score he received. Ross gave evidence in chief that the derailment incident that he was involved in, and that was relied upon by Asciano in rating him, had occurred more than 3 years earlier and should not have been relied upon. 158 Mr Ross’ evidence in that regard was wrong as the incident occurred on 5 July 2012. In cross examination Mr Ross conceded that the incident was something that Asciano was entitled to take into account in assessing his score.159 Mr Skinner gave evidence that, notwithstanding that he had only taken 3 days off work sick, he was rated ‘3’ on attendance.160 However this evidence fails to recognise that a rating of ‘3’ means, ‘meets expectations’. He further stated that he had scored a ‘2’ on safety, although he had never had a safe working incident. Firstly, the vast majority of employees at Parkes received a rating of ‘2’ for ‘Demonstrates the value of “Home Safely Everyday”. As the descriptor makes clear, the criteria is concerned with the demonstration of safety values, and is not defined by reference to safe working incidents, although involvement in safe working incidents was something that regard was had to.161 A score of ‘2’ was ‘understands the safety values and adheres to them but does not mentor others.”162 Mr Preston and Ms Bryant also gave evidence that they never had any safe working incidents. The comments made above about what the criteria, ‘‘Demonstrates the value of “Home Safely Everyday’ is concerned with, apply to Mr Preston and Ms Bryant also. Their evidence should not be interpreted as justifying criticism of the ratings given by their Superintendents and supervisors in relation to the safety criteria.

37. Mr Pemberton gave evidence that he never had any safe working breaches. 163 He received a score of ‘2’ for ‘demonstrates the value of ‘home safely every day’, which was no less than the corresponding scores for other employees who were not selected for redundancy because they were ranked higher on other criteria. He asserted that he did not have any issues with leave. However he scored 3 for attendance, which denotes ‘meets expectations’. Mr Pemberton did not advance any evidence to challenge the scores for qualification and experience that he received. Evidence of the kind advanced by Mr Pemberton does not demonstrate any unfairness in the scoring process.

38. The Commission would reject the challenge to the KSA selection process.
Redeployment

39. The applicants each submit that it would have been reasonable for them to be redeployed within the respondent’s business. They seek to rely upon the findings of the Full Bench in the appeal 164 especially at [57] and [58].

40. The Full Bench did not find as fact that it would have been reasonable for each applicant to be redeployed.

41. The Full Bench made a sweeping conclusion (at [58]) to the effect that because the possibility of VR swaps was not considered, the Full Bench was not satisfied that the dismissal of the applicants was a case of genuine redundancy.

42. Whilst the respondent accepts that it is not open to it on the rehearing to re-agitate its contentions about the existence of ‘genuine redundancies’ under s.389 of the FW Act, the Commission as presently constituted is not bound on the rehearing to refrain from making its own findings of fact relevant to (i) whether reasonable redeployment opportunities existed in fact for each applicant (as distinct from the mere possibility of VR swaps), so far as such findings are relevant to whether each dismissal was harsh, unjust or unreasonable and (ii) whether applicants who were offered but rejected redeployment opportunities acted unreasonably and thereby undermined their claim that their dismissal was harsh, unjust or unreasonable having regard to the principle of a ‘fair go all round’. 165 The Respondent has already made comprehensive submissions166 about redeployment opportunities and does not repeat them. Subject to the Commission’s deliberations about VR swaps (dealt with later in these submissions) there is no reason for the Commission to make different findings of fact in relation to issues of redeployment to those recorded in its earlier decision.

43. One of the salient issues is that five of the applicants 167 were classified as ‘driver in training’ which meant that they were not permitted to drive a train without the presence of a qualified driver. Those applicants have said nothing about that fact in relation to their contentions about redeployment.

44. Not one of the applicants in their evidence or closing submissions have identified a job or vacancy (as distinct from a possible VR swap), into which they contend they could or should reasonably have been redeployed at the time of their dismissal and thereby avoided dismissal.

45. Accordingly the respondent will not repeat, but rather cross reference, the submissions it has already made in its outlines of submission in respect of each application that were filed on 4 April 2017:

a. Bryant - see paragraphs [10], [14] and [15];
b. Hill - see paragraphs [12], [13] and [14];
c. Ross – see paragraphs [13], [14] and [15];
d. Skinner – see paragraphs [12], and [13];
e. Pemberton – see paragraphs [10] and [14];
f. Lucas – see paragraphs [10] and [14];

46. Preston – see paragraphs [10] and [14].
47. The following additional submissions are made about the evidence at the rehearing.

48. Ms Bryant gave evidence on the rehearing and conceded that moving away from Parkes was not possible for her in 2015. 168 She stated, for the first time at the rehearing,169 that she would have been prepared to work at Mudgee, by travelling daily from home in Parkes to Mudgee and return, in her own (unpaid) time170 a distance of approximately 400km.171

49. There is no evidence that there was a vacant role at Mudgee at the time of her dismissal.

50. When it was put to her that she never informed the respondent of her willingness to travel 400 kilometres per day just to get to and from work, she stated, “I never had a chance”. 172 When challenged as to why she never told the respondent she further stated, “It wouldn’t have mattered what I said; they made me redundant; they didn’t want me there.”173 The Commission would reject Ms Bryant’s evidence that she had any interest in redeployment to a depot as distant from Parkes as Mudgee, whilst residing in Parkes. The true position, as she had conceded in cross examination in November 2015 and April 2017,174 is that she was not interested in redeployment due to her personal circumstances.

51. Mr Pemberton again gave evidence at the rehearing about the role at Moolabin in Queensland that he applied for but was unsuccessful in obtaining. He gave evidence to the same effect at the hearing in November 2015. His evidence in the rehearing was that he had not heard why he was not successful in obtaining that role. 175 That was surprising evidence to say the least given that Mr King’s witness statement in reply dated 23 November 2015 addressed that very issue.176 Mr Pemberton was not a qualified driver. Mr O’Brien, the successful appointee was qualified. Apart from the Moolabin role, Mr Pemberton has not identified any role that he says would have been reasonable.

Voluntary Redundancy Swaps

52. The applicants each submit that their dismissal was unfair because of the respondent’s failure:

a. to consider redundancy swaps;
b. to identify what redundancy swaps might be available;
c. to articulate to the applicants what swaps were available;
d. to permit them to take up the available redundancy swaps; and
e. to consult with them and the proposed retained workforce of train drivers.

53. They each make the sweeping submission that the respondent’s failure to consider redundancy swaps meant that dismissing them was unfair. 177

54. That equates to a submission that a dismissal of an employee in a redundancy situation will be unfair if there exists the mere possibility that one or more VR swaps from somewhere within the respondent’s business might generally be available. In other words, an applicant for an unfair dismissal remedy who was dismissed due to redundancy need only allege, but not prove, that he or she could have avoided dismissal because a VR swap might have been able to be identified and potentially offered to him or her, in order to make out a case for relief. The submission should be squarely rejected on principle.

55. Firstly, it cannot be reconciled with the onus on an applicant to make out his or her case.

56. Secondly, it cannot be reconciled with a ‘fair go all round’.

57. Thirdly, it takes no account of the fact that in a particular redundancy situation, there may be less possible VR swaps opportunities than there are surplus employees, such that the employer has to select which of the surplus employees will be offered a VR swap. In such a case the failure by the employer to offer a surplus employee a VR swap could not, without more, result in a finding of unfair dismissal.

58. Fourthly, it discounts altogether consideration of the following matters relevant to each particular case, which none of the applicants have meaningfully addressed:

a. the capacity (skills, qualifications or experience) of a surplus employee to satisfactorily perform any of the roles held by employees who have expressed interest in voluntary redundancy;
b. the reasons adopted by the employer to select which surplus employees will be offered available VR swaps if there are more surplus employees than available VR swaps;
c. evaluation of the employer’s operational and business requirements so far as they informed the employer’s decision as to whether to allow an employee in one part of its business who is not surplus to requirements to leave their employment by taking voluntary redundancy;
d. the comparative cost to the employer of retrenching the volunteer instead of the surplus employee;
e. what, if any, training might be necessary for the surplus employee to perform the role in which the volunteer for redundancy is employed;
f. the cost to the employer of providing the necessary training, and the period within which it might be completed;
g. the cost to the employer of providing financial assistance for relocation; 178
h. consideration of the willingness of an applicant to swap into the particular roles, bearing in mind that the roles may be at a different location to their current role;
i. the employer’s prerogative to choose who it wishes to employ within its business.

59. All of the above factors point to the need to identify and evaluate the particular VR swap opportunity which is alleged by an applicant to have been available to avoid their dismissal. There is no onus on an employer to demonstrate that possible VR swaps did not exist throughout its business.

60. There were no VR swaps available in the affected depots. Voluntary redundancy was offered in those depots prior to any employee being selected for involuntary redundancy. 179

61. Despite two contested evidentiary hearings the ‘high water mark’ of the evidence relied upon by the applicants is that there were persons at Gunnedah (1), Werris Creek (1), Junee (Intermodal) 180 (2) and Bathurst181 who were interested in a possible VR swap. The Bathurst swap opportunity can be put aside because (i) it was discussed at a meeting that the Parkes applicants did not attend, but could have attended182 (ii) it was offered to all Parkes employees183 and (iii) two Parkes depot train crew applied (iv) Mr Grant Coleman, a level 4 train driver at Parkes was successful.184 He had previously worked from the Bathurst depot.185 (v) the VR swap was no longer available at the time of the applicants’ dismissals.

62. The employees who have been identified in the evidence as interested in a VR swap are: 186

a. Mark Beeche – in June 2015 he was employed as a Level 14 mainline Driver at Junee Intermodal;
b. Ronald Gustowski - in June 2015 he was employed as a Level 14 mainline Driver at Junee Intermodal;
c. Stuart Holland – in June 2015 he was employed as a Level 6 Train Driver at Gunnedah; and
d. Peter Bolshesolsky – in June 2015 he was employed as a Level 5 Advanced Locomotive Driver at Werris Creek.  187

63. In the present case the five applicants who were ‘drivers in training’, namely Bryant, Ross, Hill, Skinner and Pemberton were not qualified to perform and could not have swapped into the role of any of the employees identified above.

64. There was no evidence at all of the existence of a VR swap for a ‘driver in training’. In the circumstances it cannot seriously be contended that Bryant, Ross, Hill, Skinner or Pemberton should have been given a VR swap, or that there was in fact a possible VR swap available for each of them.

65. Further, and in any event:

a. Bryant was not able to move from Parkes;
b. Ross was unlikely to have been favourably considered for a VR swap, if VR swaps at non-affected depots were under consideration, as there were 11 other surplus employees at Parkes who the respondent would have needed to consider for the VR swaps;
c. Hill was unlikely to have been favourably considered for a VR swap, if VR swaps at non-affected depots were under consideration, because he was ranked 61^st out of 63 employees at Parkes; 188
d. Skinner informed the respondent on 3 July 2015 that he did not want to be contacted by Asciano Careers. 189 It was reasonable for the respondent to regard him as not being interested in an alternative role;
e. Pemberton was only interested in a move to Brisbane, 190and rejected a position at Moss Vale.

66. In the case of the remaining applicants who were qualified drivers:

a. Preston made it clear he was not interested in redeployment; 191
b. Lucas’ KSA ranking was the fourth lowest at Cootamundra and, if VR swaps at non-affected depots were under consideration, preference would have been given to 3 other higher ranking employees for any available VR swap. In all probability Lucas would not have been offered a VR swap if a VR swap possibility existed. 192 Lucas had an opportunity to accept redeployment at Moss Vale which he took no steps to pursue.

67. Furthermore, it is highly relevant that there were other surplus employees besides the applicants who were selected for involuntary redundancy, 193 and (if the Applicants’ submissions about consideration for VR swaps is accepted by the Commission) would also have been entitled to the same consideration for any VR swap opportunities.

68. The evidence does not support a finding that VR swaps were probably available to avoid the dismissal of any of the applicants. The applicants have not met their onus in that regard.

69. It is accepted that the respondent did not consider voluntary redundancy swaps at non-affected depots. Each of the depots at Gunnedah, Werris Creek, Junee (Intermodal) and Bathurst were non-affected depots.

70. The respondent was not actively looking at VR swaps or voluntary redundancies at non- affected depots because:

a. It had vacancies at Enfield and Moss Vale depots. Accordingly, it would be impracticable to agree to a voluntary redundancy at depots where it was trying to recruit. In any event, each of the Applicants were offered the opportunity to transfer to these depots and each of them declined this opportunity.
b. At the time the Respondent was considering the possibility of headcount reductions at non-affected depots in NSW. The Respondent regarded it as inappropriate to offer a VR swap (which may involve relocation) to employees where there was a real prospect that they would still be made redundant a short time later. 194

71. Contrary to the applicants’ submission that there was no sound or rational basis for not considering redundancy swaps in the circumstances,  195 the above reasons are sound and rational.

72. Even if it is concluded that four VR swaps were available that should have been offered to surplus employees, that in itself could not rationally lead to a conclusion that each of the applicants was unfairly dismissed. As Mr King indicated in his evidence 196 in determining which employee might be offered a VR swap, the Manager at the non-affected depot would look at comparative skills, experience and capabilities of the surplus employee and the volunteer to ensure a ‘like for like’ swap. The drivers in training were not ‘like for like’ swaps and there is no basis for any applicant to demonstrate that they would have been chosen ahead of another.

Failure to consider the Applicants’ personal circumstances

73. The applicants each submit that the sole criteria applied in selecting employees for redundancy was their KSA scores and that there was no reason at all as to why personal circumstances could not have been considered in the process. 197

74. The applicants also contend that the failure to invite the applicants to put forward their personal circumstances and to have them considered in selecting employees for redundancy was a glaring omission rendering the dismissals unfair.

75. The Commission should reject the applicants’ challenge on this ground. It does not accord with a ‘fair go all round’, and does not adequately comprehend and reconcile with Asciano’s legal obligations.

76. Asciano was bound to comply with the Pacific National Bulk Rail Enterprise Agreement 2013, and in particular, sub-clause 17(f) which provides:

“17(f) Selection for redundancies shall be made having regard to the following criteria:

(i) Pacific National Bulk Rail needs for competencies;
(ii) Employee qualifications;
(iii) Employee past work performance and experience;
(iv) An Employee’s suitability for Pacific National Bulk Rail future needs; and
(v) Any expressions of interest for voluntary redundancy.”

77. It is not clear whether the applicants are contending that their personal circumstances should not only have been considered, but should also have been accorded more weight than the considerations set out above that Asciano was bound to take into account and accord weight to. The Commission would reject such a contention.

78. The substance of applicants’ submission is that by reasons of their personal circumstances someone else should have been made involuntarily redundant instead of them. In circumstances where there is no dispute about the need for Asciano to reduce employees, there is no evidence to suggest that the personal circumstances of any applicant were more compelling than those of employees who were retained.

79. Asciano took appropriate steps to avoid the need to select any employees for involuntary redundancy. It sought expressions of interest for voluntary redundancy at each affected depot and later offered redeployment. All the applicants were offered redeployment. It was only when the applicants failed to avail themselves of redeployment that selection for dismissal had to be effected in accordance with the Pacific National Bulk Rail Enterprise Agreement 2013.

80. In the circumstances it was fair, and appropriate for Asciano to implement the selection criteria mandated in the enterprise agreement. Had it not done so it would have been exposed to claims that it contravened the FW Act.”

Disposition

81. Each of the applications should be dismissed.”

Submissions in reply on behalf of the applicants at the rehearing

[20] On behalf of the applications, it was submitted in reply that:

“The Knowledge and Skills Assessment (KSA) Process

2. In UES v Harvey [2012] FWAFB 5241 a Full Bench of the Commission confirmed that the process for selecting a person for redundancy is immaterial if the criteria for the case of genuine redundancy in s389 of the Fair Work Act (Cth) 2009 (Act). 198 The Commission also said in UES that the unmet criteria of s389 can be taken into consideration by the Commission in determining whether a dismissal is harsh, unjust or unreasonable as a part of s 387(h).199 The decision in UES makes clear that there is no genuine redundancy as that term is defined by s389 the process for selecting an individual for redundancy may be considered in any unfair dismissal application.200

3. UES simply precludes consideration of the process for the purpose of determining whether there is a valid reason relating to an employee’s conduct or performance (that is, s 387(a)), but otherwise leaves open the prospect of consideration of that process under s 387(h). The suggestion to the contrary misunderstands UES. The wide words used in s 387(h) preclude completely any other conclusion. The respondent’s construction leaves open that a process guided by a selection process for redundancy that saw, for example, people with red hair selected and dismissed before anyone else in a redundancy process would not be capable of being taken into account by the Commission as part of s 387(h) and as part of the determination of an unfair dismissal application more generally. Cliffe v Construction Glazing [2015] FWC 1008 supports this conclusion. 201 The Commission rejected the proposition that the selection criteria were open for review in Cliffe because the redundancy was found to be genuine.202

4. Both UES and Cliffe support the conclusion that the selection criteria is but one factor to be taken into consideration in determining whether the applicants’ dismissals were harsh, unjust or unreasonable. It is worth nothing that it was been conceded by the respondent’s Counsel that the KSA process is a relevant matter that ought to be dealt with under s 387(h). 203

5. Next, contrary to the respondent’s submission it is not incumbent upon the applicants to establish that – but for the shortcomings in the selection process – the applicants would have been selected for dismissal anyway. The applicants are required to establish that their dismissal was harsh, unjust and unreasonable. If the respondent engaged in an unfair process or failed to give the applicants a fair opportunity to be heard or failed to redeploy the applicants’ when it could have, or failed to consider the applicants personal circumstances (or any combination individually or together of those things) it is not for the Commission to speculate about whether the applicants’ ‘would have been dismissed anyway’. Fair process may have saved their employment but that would be mere idle speculation – here the Commission knows it was an unfair process (accompanied by the other matters identified) that led to the applicants dismissals. It follows from that the dismissals were unfair dismissals.

6. The applicants’ submit that the unfairness here of the entire process is glaringly obvious because of the things they identify. The applicants were unfairly dismissed is to be gleaned from the KSA process and the substantive and procedural inequity in that process. 204 It is fanciful to suggest, as the respondents do, that as the applicants led no evidence to persuade the Commission that the scores given as a result of the KSA process were incorrect and that the Commission should therefore find in favour of the respondent.205 That the KSA scores cannot be objectively substantiated is dealt with in the Applicants’ Submissions of 7 May 2017 – not the least of which is the total absence of any evidentiary foundation supporting the final calculations or, importantly, the managerial discretion involved in the application of the subjective criteria. The complete lack of that evidence made it both unnecessary and impossible for the applicants to mount the challenge that the respondent seems to think they should have. The respondents submission in this respect is in substance a refusal to engage with the submission made (perhaps because it is insurmountable).

Redeployment

7. In Skinner & Ors v Asciano Services Pty Ltd T/A Pacific National Bulk [2016] FWCFB 574 the Full Bench was required to apply s 389(2)(a) and (b) of the FW Act. In doing so the Full Bench necessarily found that it would been reasonable in all of the circumstances to redeploy the applicants within Asciano’s business because that is the very criteria to which s 389(2)(b) refers. 206 That finding having been made by the Full Bench in the very same proceedings cannot now be disturbed (no matter how hard the respondent tries to overcome it). The Commission having had the matter remitted cannot (and should not) disturb that finding.

8. It is not disputed that job vacancies (as distinct from VR swaps) at the time of dismissals were not identified submissions or in the applicants’ evidence. That there were vacant positions available throughout Asciano at the time of the applicants’ dismissals (including those at Moss Vale and Enfield) has been detailed in previous submissions and is not be addressed in detail here. 207 The existence of vacancies at Moss Vale and Enfield has been accepted by the respondent.208 The respondent says that a number of the applicants – including Mark Pemberton – were not qualified drivers. The respondent glibly asserts that its ability of to redeploy several of the applicants was hindered by the fact of their qualifications. The Pacific National Bulk Rail Enterprise Agreement 2013 imposes upon the respondent the obligation to provide appropriate training to an employee so that their skill base and competencies would facilitate their redeployment into a suitable alternative position.209 This was affirmed by the Full Bench where it held that ‘the number of employees performing the same or substantially the same role – train driving – means that allowing a swap would not place onerous training requirements on the respondent’.210 This finding by the Full Bench puts to bed any suggestion that redeployment opportunities as well as VR swaps were available at the time of the applicants’ dismissals.

9. In any event, the competencies and qualification of each of the applicants were dealt with as a part of the KSA process. The process so said Mr King and the respondent (until more latterly) was mere headcount reduction (as has been consistently maintained by the respondent) rather than a ‘clean out’. There is no justifiable reason as to why qualifications or competencies were given additional weight in deciding whether redeployment was a reasonable option.

Voluntary Redundancy (VR) Swaps

10. The respondent says that the applicants have made a ‘sweeping submission that the respondent’s failure to consider redundancy swaps meant that dismissing them was unfair’. 211 Sweeping or not the submission is correct. It should not be forgotten that the Full Bench found that it would have been reasonable in all of the circumstances for the respondent to consider redundancy swaps. The respondent did not do that and that of itself or in combination with other factors means that the dismissals were unfair. The respondent advances as part of its ‘defence’ the proposition that ‘there may be less possible VR swaps opportunities than there are surplus employees, such that the employer has to select which of the surplus employees will be offered a VR swap’. This kind of idle speculation which the respondent invites is exactly what illustrates something of the unfairness in this case– had the respondent bothered to consider or explore swaps and found itself in that position then its submission may have had some force. Its complete failure to even consider swaps is the factual circumstance that the Commission is required to deal with here.

11. Likewise, that the respondent was considering further headcount reductions at some point in the future is irrelevant. 212 Consideration as to what the respondent was contemplating at the time of the dismissals regarding to the future operations of the business would be an exercise in futility and has no bearing on whether the dismissals were unfair.

Personal Circumstances

12. The failure to consider the personal circumstances of the applicants demonstrates the extent to which the dismissals were unfair. The applicants do not contend that the personal circumstances of the applicants should have been afforded more weight or less or any particular than anything else. The applicants say that their personal circumstances should have been considered and they were not considered at all. In Byrne v Australian Airlines Ltd it was held that a dismissal may be ‘harsh in its consequences for the person and economic situation of the employee’. 213 Here, all of the applicants resided in country New South Wales and were employed as train drivers – a skill that is only transferrable within the same industry. The complete disregard that the respondent had for the personal circumstances for each of the applicants - when considered in conjunction with the failure to consider swaps and the process by which the individuals were selected for redundancy - only accentuates the unfair nature of the dismissals. It is well established that the failure to consider the personal circumstances of an employee at the time of dismissal supports a finding that the dismissal itself was harsh unjust or unreasonable.

Conclusion

13. The dismissal of each of the applicants was harsh, unjust and unreasonable.”

Consideration – the KSA process

[21] I should first deal with the submissions made about the application of UES (International) Pty Ltd v Leevan Harvey. 214 That case does not stand for the proposition that the process for selecting employees for redundancy is not a relevant consideration in determining whether a dismissal was harsh, unjust or unreasonable. The process for selecting employees for redundancy is not relevant in determining whether the legislative prescription in s.389 has been met. Further, if a determination is made that the redundancies were not a “genuine redundancy” then the process for selecting employees for redundancy is also not relevant in assessing whether there was a “valid reason” for dismissal under s.387(a) of the FW Act. Rather, the process for selecting employees for redundancy is to be considered under s.387(h) of the FW Act. It was this approach that I indicated to the parties I would follow and was agreed to by both counsel.215

[22] In its Closing Submission at the rehearing, the respondent relied upon the decision in Farquharson v Qantas Airways Ltd 216 to support the argument that even if there was a defect in the KSA process that does not, automatically, render the applicants’ terminations harsh, unjust or unreasonable. The relevant paragraph in Farquharson is as follows:

“41 The fact of unfairness in the employer’s decision making process, even if it involves a breach of a term of a certified agreement, is but a factor to be taken into account in determining whether a termination of employment was harsh, unjust or unreasonable. In circumstances where, as here, the merits of the termination of employment based on misconduct have been the subject of a full hearing in the Commission (in which the employer must establish the alleged misconduct on the balance of probabilities) and the dismissal has been found to be justified, it will be rare for a defect in an internal disciplinary process that preceded the termination justifying a conclusion that the termination was harsh, unjust or unreasonable. This is because, almost invariably in such circumstances, it may be inferred that the outcome of the disciplinary process would have been the same even if there had been no such defect.”

[23] The applications presently before the Commission can be distinguished from the circumstances in Farquharson. None of the applications involve allegations that the applicants engaged in misconduct. Further, in Farquharson the process was very distinct from the reason for dismissal. By contrast, in the present matters, the process led to the selection of the applicants for redundancy. While accepting that the respondent needed to, and was entitled to, reduce the size of its workforce because of a reduction in workloads and grain volumes, the manner in which it selected which of its employees to make redundant is a relevant consideration in determining whether the terminations of employment were harsh, unjust or unreasonable. It was the sole determinant for selection for redundancy, therefore it is a factor to be taken into account. Consequently, I do so take the KSA process into account.

[24] The Commission, as presently constituted, is satisfied that the KSA selection criteria chosen by the respondent complied with the terms of the Pacific National Bulk Rail Enterprise Agreement 2013. It was not contended that the selection criteria did not so comply. Further, the respondent consulted with the RTBU about the KSA and the KSA had been used on previous occasions.

[25] As has been observed, the KSA contained 11 criteria as follows:

1. Positive attitude;

2. Attendance, punctuality and reliability;

3. Commitment to customer service;

4. Supportive team behaviour towards peers and leaders;

5. Is proactive and demonstrates initiative;

6. Demonstrates the value of “Home Safely Everyday”;

7. Performance record;

8. Driver level;

9. Technical qualification;

10. Time driving; and

11. Experience at multiple locations.

[26] Criteria 2, 7, 8, 9, 10 and 11 were objective criteria. The (underlined) criteria 1, 3, 4, 5 and 6 were subjective. That is to say almost half of the selection criteria were subjective. There is nothing inherently unfair in including subjective criteria as part of a selection process. However, it must be recognised that an otherwise unobjectionable selection criteria can result in an unfair outcome if it is not applied consistently and transparently.

[27] In the present matters the evidence supports a finding (and the Commission, as presently constituted, so finds) that the KSA criteria was not applied consistently and transparently for the following reasons:

a) the descriptors left a great deal of room for interpretation;

b) managers/supervisors clearly applied the KSA criteria in different/inconsistent ways;

c) there were 6 different managers at Parkes and 3 different managers at Cootamundra applying the criteria;

d) it is not clear how any of the scores against the subjective criteria were arrived at;

e) there is no documentary suggestion that half scores could be awarded (but they were);

f) the scores were “calibrated” by people who did not know the applicants, with the consequence that they had no basis to question the scores which had been attributed to the applicants;

g) the people who undertook the calibration had no evidence before them about the scores given to the applicants and why they were given particular scores;

h) the managers who undertook the assessments were not present at the calibration meeting (and not called upon to justify the scores given). There was no meaningful testing of the KSA scores; and

i) the applicants were not provided with an opportunity to influence the KSA score given to them either during the process of allocation of scores, during the process of calibration or once a decision was made that their KSA score meant their employment was in jeopardy. In fact, it was the evidence of Mr King that nothing any of the applicants said would have mattered. 217

[28] In total the KSA process was one that could have been applied fairly, but, in the present circumstances, failed through poor execution. In fact Mr King conceded that the process was open to abuse. 218 In respect of each of the applications, the KSA process supports a finding that the terminations of employment were harsh, unjust or unreasonable.

[29] However, the fact that this aspect of the events involving the applicants supports a finding that the terminations were harsh, unjust or unreasonable is not conclusive that, all things considered, the terminations were unfair. It is but one of the matters to be taken into account, albeit a matter that I afford considerable weight.

[30] I also take into account the fact that the:

a) respondent led no evidence to support the KSA scores; and

b) applicants led little to no evidence that would challenge their KSA scores.

[31] It is curious that neither side seriously undertook the exercise of interrogating the KSA scores. Both sides said the onus fell to the other. I do not accept that either side bore the onus of justifying or challenging the KSA scores. It was open to both sides to do so. The respondent’s failure to do so supports a finding that the terminations were harsh, unjust or unreasonable. The applicants’ failure to do so tells against such a conclusion. I consider below the individual implications of the same in respect of each applicant.

Consideration – redeployment and VR swaps

[32] A proper reading of the Full Bench Decision does not lead to the conclusion (submitted by the applicants) that the Full Bench “found that in the circumstances it would have been reasonable for the applicants to be redeployed”. The Full Bench went no further than deciding that “the possibility of swaps should have been considered, and the respondent’s failure to do so… resulted in the respondent having failed to comply with its obligations under s.389(2)”. 219

[33] I reject entirely the submission made on behalf of the applicants that the Full Bench Decision has a “knock on effect of highlighting why the dismissals are in each case unfair”. The failure on behalf of the respondent to consider the possibility of swaps (or redeployment) is but one of the factors to be taken into account.

[34] Having been directed to do so by the Full Bench, I accept that the failure of the respondent to consider swaps supports a finding that the terminations of employment were harsh, unjust or unreasonable. However, it is not determinative of the question whether the terminations of employment were, in all the circumstances, unfair.

[35] Also relevant is the fact that the evidence does not disclose that at the time of the dismissals there were job vacancies available other than those which all the applicants were provided with an opportunity to apply for.

[36] The evidence does disclose that there were likely four people interested in VR swaps, but that the respondent did not further explore these options. This must be considered in the context of at least one employee (Mr Searle) being the beneficiary of a VR swap. The possibility of VR swaps is one factor that supports a finding that the terminations of employment were harsh, unjust or unreasonable.

[37] However, the evidence also discloses that the employees who may have been interested in a VR swap were not substantive drivers, but rather drivers in training. For this reason a VR was less viable an option for Mr Skinner, Mr Pemberton, Mr Ross, Mr Hill and Ms Bryant. In respect of each of these applicants this fact tells against a finding that the termination of their employment was harsh, unjust or unreasonable.

Consideration – personal circumstances

[38] In determining whether the termination of an employee’s employment was harsh, unjust or unreasonable it is relevant to have regard to the personal circumstances of the employee. That is the task required of the Commission and it is, therefore, prudent for an employer to have regard to the same when it considers its decision to terminate.

[39] In the present matters the Pacific National Bulk Rail Enterprise Agreement 2013 provided that the respondent should have regard to the following:

a) Pacific National Bulk Rail needs for competencies;

b) Employee qualifications;

c) Employee past work performance and experience;

d) An employee’s suitability for Pacific National Bulk Rail future needs; and

e) Any expressions of interest for voluntary redundancy.

[40] The respondent confined its consideration to the matters provided for in the Enterprise Agreement.

[41] However, I consider it relevant to have regard to the personal circumstances of each of the applicants and I do so, including the fact that each of them have grim employment prospects in regional New South Wales. The termination of their employment had a more harsh impact on each of them because of that fact.

Application by Grant Skinner (U2015/9788)

[42] In respect of Mr Skinner I consider the following matters to be relevant to the determination of whether his dismissal was harsh, unjust or unreasonable:

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that:

i. Because of a reduction in workloads and grain volumes the respondent had a significantly reduced demand for its services and, consequently, train crews at both its Cootamundra and Parkes depots.
ii. Mr Skinner’s role was no longer required to be performed by anyone because of operational changes at his depot.
iii. Mr Skinner did not lodge an expression of interest for a voluntary redundancy (VR).
iv. On 27 May 2015 the RTBU was given advanced notice of the decision to be communicated to the affected employees.
v. From 29 May 2015 Asciano was prepared to consider Mr Skinner for alternative roles (in particular 52 new full time and part time roles at the Moss Vale and Enfield depots).
vi. The respondent held information sessions for affected employees on 1 – 4 June 2015.
vii. Affected employees were further advised of the processes (including a Q&A about labour rationalisation) and opportunities on 10 June 2015 and had an opportunity to apply for positions up to 14 June 2015.
viii. The respondent offered financial support to relocate.
ix. The respondent complied with its obligations to consult with its employees and the RTBU about the impending redundancies.
x. The consultation engaged in by the respondent was meaningful. Further, the consultation was engaged in before an irreversible decision to terminate was made. The consultation was not perfunctory.
xi. Mr Skinner did not express in writing any interest to transfer to Moss Vale or Enfield.
xii. A letter of termination was provided (14 days in advance of dismissal) that confirmed that the reason for dismissal was redundancy.
xiii. Mr Skinner received a termination pay comprising a payment in lieu of notice and severance pay.

Each of the above matters tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that, specifically in relation to Mr Skinner:

i. At the time of his dismissal he had worked for the respondent for nearly 3 ½ years.
ii. Mr Skinner said he did not want to be contacted by Asciano Careers.
iii. Mr Skinner was informed about Momentum providing labour hire services into the future and was provided with information about how to register with them.
iv. Mr Skinner and the RTBU asked for an extension of time that was rejected by the respondent. The rejection of the extension of time did not mean that the respondent failed to satisfy its consultation obligations.
v. Mr Skinner had made enquiries about vacancies at Mudgee, Werris Creek and the Hunter Bulk Terminal in Newcastle.
vi. It would have been reasonable for the respondent to advise Mr Skinner of possible VR swaps at Werris Creek depot, Junee Intermodal depot, Gunnedah Coal depot and the Bathurst depot. In particular the potential for a swap at Werris Creek was known to the respondent.

Each of the above matters (except (b)(v) and (vi)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

a) I am further satisfied that (and consider relevant):

i. Mr Skinner was a Trainee Driver.
ii. The procedural and substantive defects in the KSA process support a finding that the termination of Mr Skinner’s employment was harsh, unjust or unreasonable.
iii. Mr Skinner scored “3” for attendance despite having had only three sick days in four years and “2” for safety despite having had no safe-working incidents.
iv. Mr Skinner obtained a KSA score of 27.5. He was ranked 51^st out of 63 employees at the Parkes depot. He would have had to achieve a score of 28 or more to avoid selection.
v. Mr Skinner would have been spared selection for termination if he had scored another 0.5 point.
vi. Although the calibration process lacked any forensic integrity it did not result in a reduction in Mr Skinner’s KSA score. In fact it went up.
vii. The failure of the respondent to consider VR swaps supports a finding that the termination of Mr Skinner’s employment was harsh, unjust or unreasonable.
viii. However, as a Trainee Driver the possibility of a swap was less likely for Mr Skinner.

[43] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is satisfied that, overall, and having regard to the obligation to afford a “fair go all round” the dismissal of Mr Skinner was unreasonable. The deficiencies in the KSA process when coupled with the fact that Mr Skinner would have survived the termination process with just another 0.5 point score leads me to the conclusion that the dismissal was unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the respondent.

[44] Accordingly, the Commission, as presently constituted, finds Mr Skinner’s dismissal was unfair within the meaning of the FW Act. Mr Skinner’s application for an unfair dismissal remedy, if any, will now be programmed for further hearing.

[45] An Order and Directions will be issued with this decision.

Application by Mark Pemberton (U2015/11732)

[46] In respect of Mr Pemberton I consider the following matters to be relevant to the determination of whether his dismissal was harsh, unjust or unreasonable:

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that:

i. Because of a reduction in workloads and grain volumes the respondent had a significantly reduced demand for its services and, consequently, train crews at both its Cootamundra and Parkes depots.
ii. Mr Pemberton’s role was no longer required to be performed by anyone because of operational changes at his depot.
iii. Mr Pemberton did not lodge an expression of interest for a VR.
iv. On 27 May 2015 the RTBU was given advanced notice of the decision to be communicated to the affected employees.
v. From 29 May 2015 Asciano was prepared to consider Mr Pemberton for alternative roles (in particular 52 new full time and part time roles at the Moss Vale and Enfield depots).
vi. The respondent held information sessions for affected employees on 1 – 4 June 2015.
vii. Affected employees were further advised of the processes (including a Q&A about labour rationalisation) and opportunities on 10 June 2015 and had an opportunity to apply for positions up to 14 June 2015.
viii. The respondent offered financial support to relocate.
ix. The respondent complied with its obligations to consult with its employees and the RTBU about the impending redundancies.
x. The consultation engaged in by the respondent was meaningful. Further, the consultation was engaged in before an irreversible decision to terminate was made. The consultation was not perfunctory.
xi. Mr Pemberton did not express in writing any interest to transfer to Moss Vale or Enfield.
xii. A letter of termination was provided (14 days in advance of dismissal) that confirmed that the reason for dismissal was redundancy.
xiii. Mr Pemberton received a termination pay comprising a payment in lieu of notice and severance pay.

Each of the above matters tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that, specifically in relation to Mr Pemberton:

i. At the date of termination he had been employed for 3 years.
ii. He wanted to be contacted by Asciano Careers.
iii. He was exploring opportunities for himself.
iv. He was particularly interested in a position in Moolabin, Queensland.
v. He was rejected for the Queensland position because of his lack of qualifications.
vi. A further meeting was arranged (to discuss his KSA), but Mr Pemberton cancelled his attendance.
vii. He was certified fit for work at around the time of the proposed termination.
viii. He accepted a temporary transfer to Moss Vale.

Each of the above matters (except (b)(ii), (iv)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

a) I am further satisfied that (and consider relevant):

i. Mr Pemberton was a trainee driver.
ii. The procedural and substantive defects in the KSA process support a finding that the termination of Mr Pemberton’s employment was harsh, unjust or unreasonable.
iii. Mr Pemberton scored a “2” for “Demonstrates the value of ‘Home Safely Everyday’” despite never having had a safety breach.
iv. Mr Pemberton obtained a KSA score of 21. He was ranked 48^th out of 49 employees at the Cootamundra depot. He would have had to achieve a score of 27.5 or more to avoid selection.
v. Although the calibration process lacked any forensic integrity it did not result in a reduction in Mr Pemberton’s KSA score. In fact, it went up.
vi. The failure of the respondent to consider VR swaps supports a finding that the termination of Mr Pemberton’s employment was harsh, unjust or unreasonable.
vii. However, as a Trainee Driver the possibility of a swap was less likely for Mr Pemberton. In any case, Mr Pemberton was only interested in a move to Brisbane.

[47] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied that, overall, and having regard to the obligation to afford a “fair go all round” the dismissal of Mr Pemberton was harsh, unjust or unreasonable. Mr Pemberton had a very low KSA (even considering the procedural and substantive deficiencies in that process), he was not interested in redeployment and only interested in a move to Brisbane.

[48] Accordingly, the Commission, as presently constituted, finds Mr Pemberton’s dismissal was not unfair within the meaning of the FW Act. Mr Pemberton’s application for an unfair dismissal remedy must, therefore, be dismissed.

[49] An Order will be issued with this decision.

Application by Joshua Ross (U2015/9790)

[50] In respect of Mr Ross I consider the following matters to be relevant to the determination of whether his dismissal was harsh, unjust or unreasonable:

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that:

i. Because of a reduction in workloads and grain volumes the respondent had a significantly reduced demand for its services and, consequently, train crews at both its Cootamundra and Parkes depots.
ii. Mr Ross’ role was no longer required to be performed by anyone because of operational changes at his depot.
iii. Mr Ross did not lodge an expression of interest for a VR.
iv. On 27 May 2015 the RTBU was given advanced notice of the decision to be communicated to the affected employees.
v. From 29 May 2015 Asciano was prepared to consider Mr Ross for alternative roles (in particular 52 new full time and part time roles at the Moss Vale and Enfield depots).
vi. The respondent held information sessions for affected employees on 1 – 4 June 2015.
vii. Affected employees were further advised of the processes (including a Q&A about labour rationalisation) and opportunities on 10 June 2015 and had an opportunity to apply for positions up to 14 June 2015.
viii. The respondent offered financial support to relocate.
ix. The respondent complied with its obligations to consult with its employees and the RTBU about the impending redundancies.
x. The consultation engaged in by the respondent was meaningful. Further, the consultation was engaged in before an irreversible decision to terminate was made. The consultation was not perfunctory.
xi. Mr Ross did not express in writing any interest to transfer to Moss Vale or Enfield.
xii. A letter of termination was provided (14 days in advance of dismissal) that confirmed that the reason for dismissal was redundancy.
xiii. Mr Ross received a termination pay comprising a payment in lieu of notice and severance pay.

Each of the above matters tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that, specifically in relation to Mr Ross:

i. At the time of his dismissal he had been employed for around 3 ½ years.
ii. He wanted to be contacted by Asciano Careers, however, he took the SIM card out of his work provided phone.
iii. He expressed interest in being engaged through a labour hire firm. He was told that the firm was Momentum. He was invited to register with them.
iv. He expressed interest in Moss Vale (which I reject he was told was full), but he did not complete a written expression of interest as required.

Each of the above matters (except (b)(ii)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

[51] I am further satisfied that (and consider relevant):

i. Mr Ross was a Mainline Driver in training.
ii. The procedural and substantive defects in the KSA process support a finding that the termination of Mr Ross’ employment was harsh, unjust or unreasonable.
iii. Mr Ross obtained a KSA score of 24.5. He was the 3^rd lowest rating at the Parkes depot. There were 7 employees with better ratings who were also selected for redundancy. He would have had to achieve a score of 28 to avoid selection.
iv. Although the calibration process lacked any forensic integrity it did not result in a reduction in Mr Ross’ KSA score. In fact, it went up.
v. The failure of the respondent to consider VR swaps supports a finding that the termination of Mr Ross’ employment was harsh, unjust or unreasonable.
vi. However, as a Mainline Driver in training the possibility of a swap was less likely for Mr Ross.

[52] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied that, overall, and having regard to the obligation to afford a “fair go all round” the dismissal of Mr Ross was harsh, unjust or unreasonable. Mr Ross had a very low KSA (even when considering the procedural and substantive deficiencies in that process). Further he did not apply for redeployment and because he was still in training it was more difficult to offer him a VR swap.

[53] Accordingly, the Commission, as presently constituted, finds Mr Ross’ dismissal was not unfair within the meaning of the FW Act. Mr Ross’ application for an unfair dismissal remedy must, therefore, be dismissed.

[54] An Order will be issued with this decision.

Application by Ian Lucas (U2015/9795)

[55] In respect of Mr Lucas I consider the following matters to be relevant to the determination of whether his dismissal was harsh, unjust or unreasonable:

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that:

i. Because of a reduction in workloads and grain volumes the respondent had a significantly reduced demand for its services and, consequently, train crews at both its Cootamundra and Parkes depots.
ii. Mr Lucas’ role was no longer required to be performed by anyone because of operational changes at his depot.
iii. Mr Lucas did not lodge an expression of interest for a VR.
iv. On 27 May 2015 the RTBU was given advanced notice of the decision to be communicated to the affected employees.
v. From 29 May 2015 Asciano was prepared to consider Mr Lucas for alternative roles (in particular 52 new full time and part time roles at the Moss Vale and Enfield depots).
vi. The respondent held information sessions for affected employees on 1 – 4 June 2015.
vii. Affected employees were further advised of the processes (including a Q&A about labour rationalisation) and opportunities on 10 June 2015 and had an opportunity to apply for positions up to 14 June 2015.
viii. The respondent offered financial support to relocate.
ix. The respondent complied with its obligations to consult with its employees and the RTBU about the impending redundancies.
x. The consultation engaged in by the respondent was meaningful. Further, the consultation was engaged in before an irreversible decision to terminate was made. The consultation was not perfunctory.
xi. Mr Lucas did not express in writing any interest to transfer to Moss Vale or Enfield.
xii. A letter of termination was provided (14 days in advance of dismissal) that confirmed that the reason for dismissal was redundancy.
xiii. Mr Lucas received a termination pay comprising a payment in lieu of notice and severance pay.

Each of the above matters tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that, specifically in relation to Mr Lucas:

i. At the time of his dismissal Mr Lucas had been employed for around 11 years.
ii. Indicated that he did want Asciano Careers to make contact with him.
iii. Expressed some interest in exploring a role at Moss Vale or Enfield subject to discussing the same with his wife and ultimately settled upon Moss Vale.
iv. Indicated a preparedness to explore job opportunities in Queensland.
v. He is computer illiterate and this impacted upon his ability to access and use emails during the relevant time.
vi. On 30 June 2015 he was contacted by Asciano Careers and told that available positions at Moss Vale would be available on the Asciano website.
vii. Despite being interested in Moss Vale, he did not submit a written expression of interest (his computer illiteracy contributed to this fact).
viii. He was not told that Moss Vale was full.
ix. He expressed interest in VR swaps.

Each of the above matters (except (b)(i), (ii), (iii), (iv), (v), and (ix)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

[56] I am further satisfied that (and consider relevant):

i. Mr Lucas was a Locomotive Driver.
ii. The procedural and substantive defects in the KSA process support a finding that the termination of Mr Lucas’ employment was harsh, unjust or unreasonable.
iii. Mr Lucas scored high on objective criteria, but low on subjective measures (that was not substantiated by evidence).
iv. Mr Lucas obtained a KSA score of 24. He ranked 46^th out of 49 employees at the Cootamundra depot. He would have had to achieve a score of 27.5 to avoid selection.
v. Although the calibration process lacked any forensic integrity it did not result in a reduction in Mr Lucas’ KSA score.
vi. The failure of the respondent to consider VR swaps supports a finding that the termination of Mr Lucas’ employment was harsh, unjust or unreasonable.
vii. As a Locomotive Driver the possibility of a swap was more likely for Mr Lucas.

[57] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is satisfied that, overall, and having regard to the obligation to afford a “fair go all round” the dismissal of Mr Lucas was unreasonable. Having regard to him being an experienced driver and having scored so highly on the objective criteria in the KSA, the dismissal was unreasonable because (it would appear) it was decided upon inferences (in relation to the subjective criteria) which could not reasonably have been drawn from the material before the respondent.

[58] Accordingly, the Commission, as presently constituted, finds Mr Lucas’ dismissal was unfair within the meaning of the FW Act. Mr Lucas’ application for an unfair dismissal remedy will now be programmed for further hearing in relation to what remedy, if any, should be awarded.

[59] An Order and Directions will be issued with this decision.

Application by Kadin Hill (U2015/9798)

[60] In respect of Mr Hill I consider the following matters to be relevant to the determination of whether his dismissal was harsh, unjust or unreasonable:

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that:

i. Because of a reduction in workloads and grain volumes the respondent had a significantly reduced demand for its services and, consequently, train crews at both its Cootamundra and Parkes depots.
ii. Mr Hill’s role was no longer required to be performed by anyone because of operational changes at his depot.
iii. Mr Hill did not lodge an expression of interest for a VR.
iv. On 27 May 2015 the RTBU was given advanced notice of the decision to be communicated to the affected employees.
v. From 29 May 2015 Asciano was prepared to consider Mr Hill for alternative roles (in particular 52 new full time and part time roles at the Moss Vale and Enfield depots).
vi. The respondent held information sessions for affected employees on 1 – 4 June 2015.
vii. Affected employees were further advised of the processes (including a Q&A about labour rationalisation) and opportunities on 10 June 2015 and had an opportunity to apply for positions up to 14 June 2015.
viii. The respondent offered financial support to relocate.
ix. The respondent complied with its obligations to consult with its employees and the RTBU about the impending redundancies.
x. The consultation engaged in by the respondent was meaningful. Further, the consultation was engaged in before an irreversible decision to terminate was made. The consultation was not perfunctory.
xi. Mr Hill did not express in writing any interest to transfer to Moss Vale or Enfield. In fact he rejected both opportunities.
xii. A letter of termination was provided (14 days in advance of dismissal) that confirmed that the reason for dismissal was redundancy.
xiii. Mr Hill received a termination pay comprising a payment in lieu of notice and severance pay.

Each of the above matters tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

a) For the reasons stated in the Genuine Redundancy Decision, I am satisfied that, specifically in relation to Mr Hill:

i. At the time of his dismissal Mr Hill had been employed for around 3 ½ years.
ii. He did express interest in a Shift Manager position at the Parkes Depot, but was unsuccessful in the selection process.
iii. He had indicated that he did not want to be contacted by Asciano Careers.
iv. Because of his personal circumstances he was unable to move for work away from Parkes.

Each of the above matters (except (b)(iv)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

[61] I am further satisfied that (and consider relevant):

i. Mr Hill was a Mainline Driver in training.
ii. The procedural and substantive defects in the KSA process support a finding that the termination of Mr Hill’s employment was harsh, unjust or unreasonable.
iii. Mr Hill obtained a KSA score of 23. He had the equal second lowest rating at the Parkes depot. There were 9 employees with better ratings who were also selected for redundancy. He would have had to achieve a score of 28 to avoid selection.
iv. Although the calibration process lacked any forensic integrity it did not result in a reduction in Mr Hill’s KSA score. In fact, it went up.
v. The failure of the respondent to consider VR swaps supports a finding that the termination of Mr Hill’s employment was harsh, unjust or unreasonable.
vi. However, as a Mainline Driver in training the possibility of a swap was less likely for Mr Hill.

[62] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied that, overall, and having regard to the obligation to afford a “fair go all round” the dismissal of Mr Hill was harsh, unjust or unreasonable. Mr Hill had a very low KSA (even considering the procedural and substantive defects in that process). Being in training a VR swap or other redeployment options were less viable for the respondent to offer him. He was not interested in moving from Parkes.

[63] Accordingly, the Commission, as presently constituted, finds Mr Hill’s dismissal was not unfair within the meaning of the FW Act. Mr Hill’s application for an unfair dismissal remedy must, therefore, be dismissed.

[64] An Order will be issued with this decision.

Application by Abigail Bryant (U2015/9802)

[65] In respect of Ms Bryant I consider the following matters to be relevant to the determination of whether her dismissal was harsh, unjust or unreasonable:

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that:

i. Because of a reduction in workloads and grain volumes the respondent had a significantly reduced demand for its services and, consequently, train crews at both its Cootamundra and Parkes depots.
ii. Ms Bryant’s role was no longer required to be performed by anyone because of operational changes at his depot.
iii. Ms Bryant did not lodge an expression of interest for a VR.
iv. On 27 May 2015 the RTBU was given advanced notice of the decision to be communicated to the affected employees.
v. From 29 May 2015 Asciano was prepared to consider Ms Bryant for alternative roles (in particular 52 new full time and part time roles at the Moss Vale and Enfield depots).
vi. The respondent held information sessions for affected employees on 1 – 4 June 2015.
vii. Affected employees were further advised of the processes (including a Q&A about labour rationalisation) and opportunities on 10 June 2015 and had an opportunity to apply for positions up to 14 June 2015.
viii. The respondent offered financial support to relocate.
ix. The respondent complied with its obligations to consult with its employees and the RTBU about the impending redundancies.
x. The consultation engaged in by the respondent was meaningful. Further, the consultation was engaged in before an irreversible decision to terminate was made. The consultation was not perfunctory.
xi. Ms Bryant did not express in writing any interest to transfer to Moss Vale or Enfield.
xii. A letter of termination was provided (14 days in advance of dismissal) that confirmed that the reason for dismissal was redundancy.
xiii. Ms Bryant received a termination pay comprising a payment in lieu of notice and severance pay.

Each of the above matters tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that, specifically in relation to Ms Bryant:

i. At the time of her dismissal she had been employed with the respondent for nearly 4 years.
ii. She asked about an opportunity at Mudgee.
iii. There was also some consideration given to redeployment to the Bathurst depot, but it was 4 hours away from Parkes.
iv. She said she wanted to be contacted by Asciano Careers.
v. She was informed about Momentum providing labour hire services into the future and was provided with information about how to register with them.
vi. Because of her personal circumstances she was unable to move for work away from Parkes.

Each of the above matters (except (b)(ii), (iii), (iv) and (vi)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

[66] I am further satisfied that (and consider relevant),

i. Ms Bryant was a Mainline Driver in training.
ii. The procedural and substantive defects in the KSA process support a finding that the termination of Ms Bryant’s employment was harsh, unjust or unreasonable.
iii. Ms Bryant obtained a KSA score of 23. Ms Bryant had the equal second lowest rating at the Parkes depot. There were 9 employees with better ratings who were selected for redundancy. She would have had to achieve a score of 28 to avoid selection.
iv. Although the calibration process lacked any forensic integrity it did not result in a reduction in Ms Bryant’s KSA score. In fact, it went up.
v. The failure of the respondent to consider VR swaps supports a finding that the termination of Ms Bryant’s employment was harsh, unjust or unreasonable.
vi. However, as a Mainline Driver in training the possibility of a swap was less likely for Ms Bryant.
vii. Ms Bryant did not seriously consider nor did she suggest to the respondent (as she did to the Commission the first time during the rehearing) that she would be interested in a position at Mudgee that required her to travel approximately 400 km each day on her own time (i.e. unpaid). In any case there is no evidence that there was a vacant role at Mudgee at the relevant time.

[67] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied that, overall, and having regard to the obligation to afford a “fair go all round” the dismissal of Ms Bryant was harsh, unjust or unreasonable. Ms Bryant had a very low KSA (even considering the procedural and substantive defects in that process). She was not seriously interested in redeployment outside of Parkes.

[68] Accordingly, the Commission, as presently constituted, finds Ms Bryant’s dismissal was not unfair within the meaning of the FW Act. Ms Bryant’s application for an unfair dismissal remedy must, therefore, be dismissed.

[69] An Order will be issued with this decision.

Application by Mareck Preston (U2015/9805)

[70] In respect of Mr Preston I consider the following matters to be relevant to the determination of whether his dismissal was harsh, unjust or unreasonable:

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that:

i. Because of a reduction in workloads and grain volumes the respondent had a significantly reduced demand for its services and, consequently, train crews at both its Cootamundra and Parkes depots.
ii. Mr Preston’s role was no longer required to be performed by anyone because of operational changes at his depot.
iii. Mr Preston did not lodge an expression of interest for a VR.
iv. On 27 May 2015 the RTBU was given advanced notice of the decision to be communicated to the affected employees.
v. From 29 May 2015 Asciano was prepared to consider Mr Preston for alternative roles (in particular 52 new full time and part time roles at the Moss Vale and Enfield depots). Mr Preston did not apply for any of the positions.
vi. The respondent held information sessions for affected employees on 1 – 4 June 2015.
vii. Affected employees were further advised of the processes (including a Q&A about labour rationalisation) and opportunities on 10 June 2015 and had an opportunity to apply for positions up to 14 June 2015.
viii. The respondent offered financial support to relocate.
ix. The respondent complied with its obligations to consult with its employees and the RTBU about the impending redundancies.
x. The consultation engaged in by the respondent was meaningful. Further, the consultation was engaged in before an irreversible decision to terminate was made. The consultation was not perfunctory.
xi. Mr Preston did not express in writing any interest to transfer to Moss Vale or Enfield.
xii. A letter of termination was provided (14 days in advance of dismissal) that confirmed that the reason for dismissal was redundancy.
xiii. Mr Preston received a termination pay comprising a payment in lieu of notice and severance pay.

Each of the above matters tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that, specifically in relation to Mr Preston:

i. He did tell the respondent that he wanted to be contacted by its career section.
ii. He said he would consider one of the truck driver positions in the Patrick division (subject to the position being a forklift driving position).
iii. He had not accessed his email to which the respondent had sent much of the information about the redeployment and redundancy process because, he said, he was not able to log in.
iv. On 24 June 2015 he attended a meeting at which further opportunities were provided, but they were unsuitable to his circumstances.
v. A further opportunity for redeployment was provided to Mr Preston when he was contacted by Asciano Careers around 30 June 2015. Again he stated that he was not interested in redeployment.

Each of the above matters (except (b)(i) and (ii)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

[71] I am further satisfied that (and consider relevant):

i. Mr Preston was a Locomotive Driver.
ii. The procedural and substantive defects in the KSA process support a finding that the termination of Mr Preston’s employment was harsh, unjust or unreasonable.
iii. Mr Preston scored “1” on the criteria “supportive team behaviours towards peers and leaders” despite there being no evidence to support such a finding.
iv. Mr Preston obtained a KSA score of 22. He was ranked 47^th out of 49 employees at the Cootamundra depot. He would have had to achieve a score of 27.5 to avoid selection.
v. Mr Preston ended the meeting that was conducted to allow him to discuss his KSA score (although noting that, nothing he said would have changed the result).
vi. Although the calibration process lacked any forensic integrity it did not result in a reduction in Mr Preston’s KSA score.
vii. The failure of the respondent to consider VR swaps supports a finding that the termination of Mr Preston’s employment was harsh, unjust or unreasonable.
viii. As a Locomotive Driver the possibility of a swap was more likely for Mr Preston. However, Mr Preston made it clear that he was not interested in redeployment.

[72] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied that, overall, and having regard to the obligation to afford a “fair go all round” the dismissal of Mr Preston was harsh, unjust or unreasonable. His lack of any interest in redeployment and his low KSA score (even allowing for procedural and substantive deficiencies) tells against a finding being made against the respondent in this matter.

[73] Accordingly, the Commission, as presently constituted, finds Mr Preston’s dismissal was not unfair within the meaning of the FW Act. Mr Preston’s application for an unfair dismissal remedy must, therefore, be dismissed.

[74] An Order will be issued with this decision.

COMMISSIONER

Appearances:

Reitano, R of Counsel for the applicants.

Meehan, S of Counsel for the respondent.

Hearing details:

Parkes,

10 April,

2017

Final written submissions:

Applicant’s Final Submissions dated 5 May 2017

Respondent’s Final Submissions dated 22 May 2017

Applicant’s Final Submissions in Reply dated 29 May 2017

Joint Final Submissions on paragraphs in the Genuine Redundancy Decision that were not disturbed by the Full Bench Decision dated 28 July 2017

 1   Positions as agreed between the parties and communicated to the Commission on 7 August 2017.

 2   As per email from RTBU on 13 February 2017 updating the remedy sought by each applicant.

 3   [2016] FWC 2720.

 4   [2017] FWCFB 112.

 5   [2017] FWCFB 574, [59].

 6   Section 596(2)(a) of the FW Act.

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

 8   Section 382(a) of the FW Act

 9   Transcript PN92- PN112

 10   Exhibit R1

 11   Transcript PN179- PN185

 12   Exhibit R1

 13   Transcript PN191-PN228

 14   Transcript PN235-PN236

 15   Transcript PN262- PN267

 16   Transcript PN287 - PN292

 17   Transcript PN312 - PN335

 18   Transcript PN463 - PN468

 19   Transcript PN471 - PN174

 20   Transcript PN479 - PN483

 21   Transcript PN485 - PN490

 22   Transcript PN495 - PN500

 23   Transcript PN505 – PN509

 24   Transcript PN519 - PN525

 25   Transcript PN527 - PN530

 26   Transcript PN537 - PN542

 27   Exhibit R1 at 4(i)

 28   Exhibit R1 at 4(f),(g),(h)

 29   Exhibit R1 at 4(d)

 30   Exhibit R1 at 4(e)

 31   Exhibit R1 at 11-12

 32   Transcript PN 99-102

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

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

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

 36   At 7-19

 37   Transcript PN 93-113

 38   Exhibit R1 at 8

 39   Ibid at 13

 40   Exhibit R1 at para 20

 41   Transcript PN179 - PN185

 42   Transcript PN2780

 43   Transcript PN58

 44   Transcript PN130

 45   Exhibit A8 at Para 30

 46   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].

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

Vodafone Network Pty Ltd (unreported, AIRC, Smith C, 14 November 2001) PR911257 [25].

 48   Transcript PN2106

 49   Transcript PN2114

 50   Transcript PN2126

 51   Transcript PN2143 - PN2145

 52   Transcript PN2161

 53   Transcript PN2163

 54   Transcript PN2170 - PN2176

 55   Exhibit A4 at para 8

 56   Transcript PN2260 - PN2261

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

 58   Closing Submissions of Respondent on Jurisdiction at para 99

 59   Transcript PN2834

 60   Transcript PN2584 - PN2585

 61   Transcript PN2597 - PN2604

 62   Exhibit A8 at para 31

 63   Exhibit A6 at para 48

 64   Exhibit A6 at para 76

 65   Exhibit A6 at para 44 and 75

 66   Transcript PN3057 - PN3064

 67   Transcript PN3072 - PN3074

 68   Transcript PN3080

 69   Transcript PN3090 - PN3092

 70   Transcript PN3103 - PN3106

 71   Transcript PN3128 - PN3129

 72   Transcript PN2969 - PN2981

 73   Transcript PN2991

 74   Transcript PN2989

 75   Transcript PN2425 - PN2426

 76   Transcript PN2447 - PN2449

 77   Transcript PN2501 - PN2504

 78   Transcript PN2424

 79   Transcript PN2513

 80   Sayer v Melsteel [2011] FWAFB 7498.

 81   UES (Int’l) Pty Ltd v Harvey (2012) 215 IR 263.

 82   Rehearing Transcript PN35 – PN39.

 83   [2016] FWCFB 574 at esp. [57] and [58]

 84   Transcript PN746

 85   Transcript PN742 to PN1137

 86   Exhibit A25

 87   Transcript PN772 to PN 776.

 88   The final criteria are set out in pages SP080 to SP 083 of Exhibit A25

 89   Exhibit A25 – SP080 to SP083

 90   Exhibit A25 – SP081 to SP083

 91   Exhibit A25 – SP080

 92   Transcript PN1120

 93   Transcript PN1089 – PN1092

 94   Transcript PN1037 – PN1040

 95   Exhibit A25 – SP076

 96   See the Commission’s observations about this at PN1356

 97   Exhibit A25 – SP080

 98   Transcript PN823

 99   Transcript PN852

 100   Transcript PN812, PN849 - PN850, PN857 - PN863

 101   Exhibit A25 – SP077

 102   Transcript PN1052

 103   Exhibit A15 at [4]

 104   Exhibit A25 – SP120

 105   Exhibit A20 at [5]

 106   Exhibit A21 at [5]

 107   Exhibit A10 at [78] – [80]

 108   Exhibit R11

 109   Exhibit A25 at SP122 and SP123

 110   Exhibit A25 at SP122

 111   Exhibit A25 at SP123

 112   Exhibit A15 at [4]

 113   Exhibit A25 at SP120

 114   Transcript PN881 - PN882

 115   Transcript PN874 - PN876

 116   Exhibit A25 at SP 081 – SP 083, Transcript PN1068 - PN1070

 117   Transcript PN982

 118   Transcript PN1020

 119   Transcript PN1035

 120   Transcript PN998

 121   Exhibit R12 at [25]

 122   Transcript PN1040 – PN1042

 123   Transcript PN1019

 124   Exhibit R12

 125   Transcript PN959

 126   Transcript PN902 - PN922

 127   Transcript PN941 - PN941

 128   [2016] FWCFB 574 at esp. [57] and [58]

 129   Exhibit R12 at [18]

 130   Transcript PN754 - PN765

 131   Transcript PN123 to PN144 and in Exhibits A22 and A23

 132   Exhibit A11 at [29]

 133   Exhibit A5 at [63]

 134   The findings recorded at paragraph [26] of Skinner & Pemberton and Others v Asciano Services Pty Ltd [2016] FWC 2720 were not challenged on appeal and there is no suggestion in the applicants’ closing submissions that the Commission should not make the same findings on the rehearing.

 135   The findings recorded at paragraph [37] of Skinner & Pemberton and Others v Asciano Services Pty Ltd [2016] FWC 2720 were not challenged on appeal and there is no suggestion in the applicants’ closing submissions that the Commission should not make the same findings on the rehearing.

 136   See in particular clause 17(f)

 137   King, 4 April 2017, at [22]

 138   Skinner & Ors Skinner & Pemberton and Others v Asciano Services Pty Ltd [2017] FWCFB 574 at [58]

 139   UES (Int'l) Pty Ltd v. Leevan Harvey [2012] FWAFB 5241at [27]

 140   See s.385 of the Fair Work Act 2009

 141   See in this regard footnote 1 above

 142   See Wang v Crestell Industries Pty Ltd  (1997) 73 IR 454  at 458, 464;

 143   UES (Int'l) Pty Ltd v. Leevan Harvey [2012] FWAFB 5241 at [27]; Carnes v Wagners Industrial Services Pty Ltd [2015] FWC 3254 at [51]

 144   See also Dixon v Natures Organics Pty Ltd [2013] FWC 9720 at [58] – [60]; Supara v SlumberCare Pty Ltd [2013] FWC 8704 at [52] – [54]

 145   See by way of parity of reasoning in relation to consultation, Priest v HFB Pty Ltd ATF HFB Admin Trust [2016] FWC 802 [46(e)]

 146   Applicants’ submissions dated 5 May 2017 at [44]

 147   King, 4 April 2017, at [24]

 148   Applicants’ submission at [18]

 149   Applicants’ submission at [19]

 150   Applicants’ submission at [21]

 151   Applicants’ submission at [22]

 152   Applicants’ submission at [23]

 153   Applicants’ submission at [25]

 154   Applicants’ submission at [25]

 155   King, 4 April 2017, at [27]

 156   KSA scores were changed and the KSA spread sheets were updated (paragraph 28 of the statement of King, Ex R12 and pages SP 116, 119, 159 & 160 of Ex A25)

 157   See for example Farquharson v Qantas Airways Limited [2006] AIRC 488; (2006) 155 IR 22 at [41]

 158   T. 10.04.17 at PN 317

 159   T. 10.04.17 at PN 340

 160   Skinner, 13 March 2017 at [5]

 161   King, 4 April 2017, at 35(b)

 162   Ibid.

 163   Pemberton, 14 March 2017, at [4]

 164   Skinner & Pemberton and Others v Asciano Services Pty Ltd [2017] FWCFB

 165   Section 381(2) of the Act

 166   See the submissions referred to in paragraph 1(a) and (b) above

 167   Bryant, Ross, Hill, Skinner and Pemberton – Exhibit R2 at 301, 299, 300, 298 and 310; T. 10.04.17, PN 305

 168   PN 173

 169   PN 194 - 195

 170   PN 192

 171   PN 193

 172   PN 198

 173   PN 214

 174   T. 10.04.17 PN 173

 175   Pemberton, 14 March 2017, at [6]

 176   King, 23 November 2015, at [27]

 177   Applicants’ submissions at [68]

 178   In this regard Asciano has obligations under clauses 17(h)(iv) and 32 of the Pacific National Bulk Rail Enterprise Agreement 2013 to pay relocation expenses

 179   King, 4 April 2017, at [9]

 180   King, 23 November 2015 at [16] – [19]

 181   Thornhill, 19 October 2015, at [27]

 182   T. 26.11.17 at PN 959 - 968

 183   T. 27.11.17 at PN 1341

 184   There appears to be some inconsistency in the evidence as Mr King identifies the successful candidate as Mr Searle; King, 4 April 2017 at [17]

 185  King, 4 April 2017, at [17]

 186   King, 4 April 2017, at [18]

 187   Arscott at [3]

 188   King, 4 April 2017, at [41]

 189   King, 4 April 2017, at [40]

 190   Skinner & Ors v. Asciano Services Pty Ltd [2016] FWC 2720 at [11] (66); [49]

 191   Ibid. at [84] - [85]

 192   King, 4 April 2017, at [45]

 193   Exhibit A25 at SP 159 - 160

 194   King, 4 April 2017 at [11]

 195   Applicants’ submissions at [71]

 196   King, 4 April 2017, at [

 197   Applicants’ submissions at [72]

 198   UES (Int’l) Pty Ltd v Leevan Harvey [2012] FWAFB 5241 at [27]-[28].

 199   Ibid at [27]

 200   Ibid at [29]

 201   Cliffe v Construction Glazing [2015] FWC 1008 at [60]

 202   Ibid at [59]

 203   Transcript PN38

 204   Applicant’s outline of submissions of 05 May 2017 at [11]-[66]

 205   Respondent’s closing submissions on rehearing of 22 May 2017 at [23]

 206   Skinner & Ors v Asciano Services Pty Ltd T/A Pacific National Bulk [2016] FWCFB 574 at [57]-[58]

 207   Applicant’s final closing submissions on jurisdiction of 15 January 2016

 208   Respondent’s closing submissions on rehearing of 22 May 2017 at [69]

 209   Clause 17(b)(i) of the Pacific National Enterprise Agreement 2013.

 210   Skinner & Ors v Asciano Services Pty Ltd T/A Pacific National Bulk [2016] FWCFB 574 at [57].

 211   Respondent’s closing submissions on rehearing of 22 May 2017 at [52].

 212   Respondent’s closing submissions on rehearing of 22 May 2017 at [69].

 213   Byrne v Australian Airlines Ltd (1995) 185 CLR 411

 214   [2012] FWAFB 5241.

 215   Rehearing transcript PN35 – 39.

 216   (2006) 155 IR 22.

 217   Rehearing transcript PN947 – PN949.

 218   Rehearing transcript PN982.

 219   [2017] FWCFB 112, [58].

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