[2020] FWC 2929

The attached document replaces the document previously issued with the above code on 4 June 2020.

Corrected paragraph numbering error (two paragraphs numbered [1]). Paragraphs renumbered [1] – [51].

Jeremy Lappin

Associate to Deputy President Saunders

Dated 4 June 2020

[2020] FWC 2929
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

David Williamson
v
AHG Newcastle Pty Ltd T/A AP Eagers
(U2020/1980)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 4 JUNE 2020

Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – application dismissed.

[1] Mr David Williamson was employed by AHG Newcastle Pty Ltd (AHG) from December 2004 until 31 January 2020. At the time of his dismissal Mr Williamson was in the position of Human Resources Manager (Newcastle) (HR Manager). AHG contends that Mr Williamson’s dismissal was a genuine redundancy within the meaning of s 389 of the Fair Work Act 2009 (Cth) (Act). Mr Williamson denies that assertion and contends that his dismissal was harsh, unjust and unreasonable.

Background

[2] Mr Williamson filed his unfair dismissal application in the Fair Work Commission (Commission) against AHG on about 21 February 2020 (Application).

[3] I decided that it was appropriate to hold a determinative conference rather than a hearing in this matter. In making that decision, I had regard to the views of the parties, together with the fact that a determinative conference would be the most effective and efficient way to resolve this matter. The determinative conference was conducted, by video conference, on 25 May 2020. Mr Williamson represented himself. Ms Jacinda Davies, National ER/IR Advisor for AHG, represented AHG.

[4] Mr Williamson gave evidence at the determinative conference. He also called Ms Claire Kelsey, People and Safety Manager NSW, AHG Services NSW and Newcastle, and Mr Paul Tomlin, State General Manager – Newcastle, AHG Newcastle, to give evidence pursuant to orders issued to those persons to attend the Commission (by video conference) and give evidence. AHG adduced evidence from Ms Bette McIntyre, GM Organisational Effectiveness of Automotive Holdings Group, and Ms Hazel Cromie, GM People and Payroll, AP Eagers Ltd.

Initial matters to be considered

[5] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the Application.

[6] There is no dispute between the parties and I am satisfied on the evidence that:

(a) the Application was made within the period required in s 394(2) of the Act;

(b) Mr Williamson is a person protected from unfair dismissal; and

(c) AHG was not a “small business employer” as defined in s 23 of the Act, so the Small Business Fair Dismissal Code does not apply to Mr Williamson’s dismissal.

[7] In relation to the fourth initial matter which I am required to consider, there is a dispute between the parties regarding whether Mr Williamson’s dismissal was a genuine redundancy. Accordingly, I must decide that question before I consider the merits of the Application.

Genuine redundancy

[8] Section 389 of the Act defines genuine redundancy as follows:

389 Meaning of genuine redundancy

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

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

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

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

(a) the employer’s enterprise; or

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

[9] “Associated entity” has the meaning given by s 50AAA of the Corporations Act 2001 (Cth).

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

[10] It is necessary to determine whether AHG no longer required the job of Mr Williamson to be performed by anyone because of changes in the operational requirements of AHG’s enterprise. 1

[11] A job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee”. 2 Where there has been a reorganisation or redistribution of duties, the question is whether the employee has “any duties left to discharge”.3 If there is no longer any function or duty to be performed by that person, their job becomes redundant.4 For example, an employer may redistribute all the tasks done by a particular person between several other employees, resulting in the person’s job no longer existing.

[12] An employee’s job may still be genuinely made redundant when there are aspects of the employee’s duties still being performed by other employees. 5 The test is whether the job previously performed by the employee has survived the restructure or downsizing, not whether the duties have survived in some form.6

[13] The reference to “changes in the operational requirements of the employer’s enterprise” in s 389(1)(a) of the Act includes circumstances where an employer restructures its business to improve efficiency, productivity, sales, revenue or some other aspect of performance. The operational circumstances of a business which may give rise to a redundancy will reside in the direct knowledge of the employer. The evidentiary onus is on the employer to provide direct evidence about the nature of the employee’s job and why it is no longer required to be performed as a result of changes in the operational requirements of the employer’s enterprise.

[14] If a dismissal is found to be a genuine redundancy within the meaning of the Act, issues such as unfair selection procedures for redundancy are not relevant, because they go to the merits of the claim that the applicant was dismissed harshly, unjustly or unreasonably. 7

[15] It is clear on the evidence that there were changes in the operational requirements of AHG’s business in the second half of 2019. In particular, on 25 July 2019 the Australian Competition and Consumer Commission granted conditional authorisation of the merger of two automotive groups: AP Eagers Ltd (AP Eagers) and Automotive Holdings Group Limited (AH Group), the parent company of AHG, pending AP Eagers’ divestment of the Kloster Motor Group. The sale of the Kloster Motor Group to the Tony White Group was completed on 31 October 2019.

[16] Integration of AP Eagers’ business and AH Group’s business commenced following conditional authorisation of the merger acquisition on 25 July 2019. As a result of that integration process, it was identified that numerous roles would no longer be required, including those in executive management, operational leadership, finance, legal, information technology and people and safety. In the result, well in excess of 60 positions were made redundant as a consequence of the integration of the two businesses.

[17] AHG contends that Mr Williamson’s position of HR Manager was one of the positions which was no longer required as a consequence of the integration of the two businesses. Mr Williamson disputes that contention and says that his role continued to exist after the restructure. In particular, Mr Williamson contends that the allegedly new role offered to him in October 2019 of People and Safety Partner, based in Newcastle, was his position, albeit with a different title and lower remuneration. The title of the role offered to Mr Williamson was later changed from People and Safety Partner to Human Resources Business Partner (HR Business Partner). For the balance of this decision I will refer to the role offered to Mr Williamson during the restructure as HR Business Partner. It was based in Newcastle.

[18] I accept AHG’s contention that Mr Williamson’s position of HR Manager was one of the positions which was no longer required as a consequence of the integration of the two businesses and reject Mr Williamson’s contention that his role continued to exist after the restructure, for the following reasons.

[19] First, I am persuaded by the evidence given by a range of witnesses that the role of HR Manager was materially different from, and more senior than, the role of HR Business Partner. That evidence insofar as it pertains to the main duties and requirements of the two roles may be summarised as follows:

  Ms Cromie gave evidence that the level of autonomy and empowerment in decision making were higher in the role of HR Manager than the role of HR Business Partner. By way of example, Ms Cromie explained that a HR Business Partner does not manage a team, determine human resources policies, set the strategic direction for human resources or attend matters in the Commission, whereas the HR Manager does. Ms Cromie pointed to the fact that Mr Williamson, in his role as HR Manager, managed a team and was involved in human resources at the policy level, such as the absence from work policy in the Newcastle region. Mr Williamson accepts that he had a large hand in writing that policy, albeit it was not “his” policy.

  Ms McIntyre gave evidence that there are two major differences between the two roles:

  a HR Business Partner does not have any direct reports, whereas Mr Williamson did in his role as HR Manager; and

  a HR Manager applies a national strategy and approach to human resources issues, whereas a HR Business Partner works at a transactional (rather than strategic) level.

  Ms Kelsey gave evidence that the role of HR Manager leads and develops a team in relation to human resources strategies, whereas the HR Business Partner role supports and implements the strategies set by the HR Manager.

  Mr Tomlin gave evidence that the HR Business Partner role has a reduced scope compared to the HR Manager role because the truck division is no longer part of the responsibility of the Newcastle region of the business, the payroll department for the Newcastle region (which Mr Williamson used to assist and provide guidance to in his role of HR Manager) has been moved to Sydney, and changes to software and information technology have reduced the human resources workload for the Newcastle part of the business.

[20] Secondly, in his role as HR Manager, Mr Williamson received a base salary of $100,000 per annum, superannuation, a yearly bonus (usually of $7,500 per annum), annual leave loading, a tool of trade motor vehicle, and a first aid allowance. The HR Business Partner role was offered to Mr Williamson at a remuneration level of $80,000 base salary, plus superannuation and a tool of trade vehicle. After Mr Williamson rejected the role, it was advertised with an annual salary package of $70,000 to $90,000. 8 Ms Cromie gave evidence, which I accept, that a number of candidates were initially interviewed for the role, but no offers were made; AHG then found an “exceptional candidate”, who negotiated an annual salary of $90,000 plus superannuation and a motor vehicle, which included reasonable personal use but at a cost to the employee of $120 per fortnight. The “exceptional candidate” did not stay in the role long, but the circumstances of and reasons for that person’s departure are not relevant to these proceedings. It is clear from this evidence as a whole that the remuneration package for Mr Williamson’s role of HR Manager was considerably higher than the remuneration package for the new position of HR Business Partner. This difference in remuneration supports AHG’s contention that the role of HR Manager was more senior than, and different to, the new role of HR Business Partner.

[21] Mr Williamson is critical of AHG for offering him the role of HR Business Partner at the rate of $80,000 base salary plus superannuation and a tool of trade vehicle, but then employing the successful candidate at $90,000, plus superannuation and a motor vehicle (subject to the $120 cost per fortnight to the employee). I accept Ms Cromie’s evidence that she permitted the negotiation of a salary of $90,000 for the successful candidate because she believed that person to be right for the role having regard to the market at the time. Ms Cromie also gave evidence that Mr Williamson never asked for more money for the new role of HR Business Partner when it was offered to him. When that was put to Mr Williamson in cross examination, he agreed that he never asked Ms Cromie if the money for the new role was negotiable, but says he raised that issue with Mr Tomlin, who told him to sit tight until he attended a meeting in Brisbane in early December 2019. After that meeting Mr Williamson says that Mr Tomlin told him that “$80,000 is it” for the new role. Mr Tomlin gave evidence that he did tell Mr Williamson to “sit tight” until he went to Brisbane to discuss the restructure with senior management, but he did not have any discussion with Mr Williamson or anyone in the business about whether $80,000 was the salary limit for the new role. I prefer Mr Tomlin’s evidence over Mr Williamson’s evidence in relation to this issue because Mr Tomlin was not involved in setting the remuneration for the new role, Mr Tomlin’s purpose in attending the meeting in Brisbane was to find out information about the restructure and the reasons for it, and the first time Mr Williamson suggested that he spoke to Mr Tomlin about the remuneration for the new role was in his cross examination. Further, Mr Tomlin was ordered, at Mr Williamson’s request, to attend the Commission (by video conference) to give evidence in the proceedings. Mr Tomlin was a reluctant witness, but he is a friend of Mr Williamson, believed Mr Williamson performed well in his role of HR Manager, and answered questions in a direct and responsive manner. I found Mr Tomlin to be a reliable and credible witness. In contrast, Mr Williamson’s credibility as a witness in these proceedings has, in my view, been impacted in a negative way as a consequence of the very strong view he obviously holds that he was unfairly treated by AHG. Much of Mr Williamson’s evidence was argumentative in nature and/or non-responsive to the questions asked of him.

[22] Thirdly, I accept that AHG no longer employs any person in the role of HR Manager (Newcastle). That role has been made redundant, as have well in excess of 60 other positions that were affected by the integration of the two automotive businesses in about late 2019. I make that finding notwithstanding the fact that, as Mr Williamson rightfully pointed out, the position description for the position of HR Business Partner 9 was similar or the same in many respects as the position description for the position of HR Relationship Manager,10 which Mr Williamson accepted described “in broad spectrum” his position as HR Manager. The similarity between the two position descriptions does not outweigh the largely consistent evidence given by AHG’s managers, as summarised in paragraph [19] above, concerning the material differences between the two roles. In making this finding I have also had regard to Mr Williamson’s evidence that the position description for the role of HR Business Partner was different from the position description provided to Mr Williamson when he was offered the role and it had the initial title of People and Safety Partner.11 Ms Kelsey gave evidence, which I accept, that she used an old position description to create the position description for the role of HR Business Partner because she thought it described the role better than the position description she had been provided with when the role was titled People and Safety Partner. The title of the position was changed because AHG was receiving a lot of job applications from employees with safety experience but limited human resources experience.

[23] Fourthly, although AHG considered Mr Williamson’s performance for the purpose of considering his suitability for other potential roles, I find that Mr Williamson was not dismissed because of his performance. I am satisfied that Mr Williamson would have remained in his position of HR Manager had the merger between AP Eagers and the AHG Group not taken place.

[24] For the reasons set out above, I am satisfied on the balance of probabilities that the real reason for Mr Williamson’s dismissal was the redundancy of his role as HR Manager and that AHG no longer required Mr Williamson’s role of HR Manager to be performed by anyone because of changes in the operational requirements of AHG’s enterprise.

Compliance with any consultation obligation in a modern award or enterprise agreement that applied to the employment (s 389(1)(b))

[25] For there to be a genuine redundancy within the meaning of s 389 of the Act, AHG must have complied with any obligation in a modern award or enterprise agreement to consult about the redundancy.

[26] Mr Williamson initially contended that he was covered by the Clerks Private Sector Award 2010, but at the determinative he conceded, rightly in my view, that he was not covered by that award because he was not “engaged wholly or principally in clerical work, including administrative duties of a clerical nature”. 12 There is no dispute between the parties and I am satisfied that Mr Williamson was not covered by any other award or any enterprise agreement during the relevant time. It follows that AHG was not obliged by s 389(1)(b) of the Act to consult with Mr Williamson in relation to his redundancy.

Was it reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer (s 389(2))

[27] For the purposes of section 389(2) of the Act, the Commission must consider whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must be an appropriate evidentiary basis for such a finding. 13 The word “redeployed” in section 389(2) of the Act should be given its ordinary and natural meaning, which is to “transfer to another job, task or function”.14

[28] If an employer wishes to rely on the “genuine redundancy” exclusion in section 389 of the Act, then it would ordinarily be expected to adduce evidence, on the question of redeployment, as to whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. Such evidence would usually include the steps taken by the employer to identify other jobs, positions or work which could be performed by the dismissed employee. 15

[29] Whether it would have been reasonable in all the circumstances for the person to be redeployed, directs attention to the circumstances which pertained when the person was dismissed. 16 However, the circumstances leading up to the time the employee was dismissed may, in particular cases (such as where there has been a redeployment period for an employee prior to their dismissal), be relevant to a determination of whether it would have been reasonable in all the circumstances for the employee to have been redeployed.17

[30] In determining whether redeployment would have been reasonable a number of matters may be relevant, including:

(a) whether there exists a job or position or other work to which the employee can be redeployed; 18

(b) the nature of any available position; 19

(c) qualifications required to perform the job; 20

(d) the employee’s skills, qualifications and experience. The employee should have the skills and competence required to perform the role to the required standard either immediately or within a reasonable period of retraining; 21 and

(e) the location of the job in relation to the employee’s residence and the remuneration which is offered. 22

[31] Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. 23

[32] It is important, however, to appreciate that, because there is a requirement to assess the reasonableness of redeployment “in all the circumstances”, it is not possible to establish binding or decision rules concerning the application of section 389(2) of the Act in all cases; the circumstances of each particular case must be considered. 24

Relevant facts concerning redeployment opportunities

[33] On 22 October 2019, Mr Williamson participated in a meeting with his direct manager, Mr Tomlin, and his “dotted line” report, Ms McIntyre (by telephone). In that meeting, Ms McIntyre informed Mr Williamson that his position of HR Manager was being made redundant as a result of an organisational restructure. This meeting was the first time that Mr Tomlin was made aware of these changes. Mr Williamson was told that a new position of HR Business Partner (then known as People and Safety Partner) was being put in place and was available to him. I also accept Ms McIntyre’s evidence that she told Mr Williamson in this meeting that he could explore any other roles that he may have an interest in pursuing in the merged organisation, including business facing roles.

[34] Mr Williamson was also provided with a letter by AHG dated 22 October 2019. 25 In that letter Mr Williamson was informed, amongst other things, that:

  AHG had been considering the complexities associated with integrating the business of AP Eagers with the business of the AHG Group, with a view to enabling the merged organisation to operate efficiently;

  as a result of its review, AHG had not been able to identify a position for Mr Williamson at his current level in the merged organisation;

  Mr Williamson could accept the lesser role of HR Business Partner (then known as People and Safety Partner) or redundancy entitlements in accordance with his service agreement; and

  if Mr Williamson elected to accept the HR Business Partner role, his remuneration would be adjusted downward with effect on 21 February 2020.

[35] Mr Williamson was also sent an email from Ms Jo Cairns, Executive General Manager – People and Safety, on 22 October 2019, attaching an interim People and Safety organisational chart which showed a number of vacant positions. Additional updates and organisational charts were sent to Mr Williamson by Ms Cairns in October and November 2019. Further, Mr Williamson was sent a JobFlash email each fortnight during the restructure period up until his dismissal, which showed all roles available in AHG. 26 Information about those roles was also available on the AHG intranet site. It is unfortunate that AHG did not take steps to ensure that available roles in the AP Eagers business were included in the JobFlash emails or on the AHG intranet site during the restructure period. Employees of AHG had to look on seek.com to find out information about those roles.

[36] On 14 November 2019, Mr Williamson attended a meeting with Ms Cromie and Ms McIntyre in relation to the redundancy of his position and potential redeployment to the role of HR Business Partner. In that meeting Mr Williamson requested a copy of the position description for the role of HR Business Partner.

[37] On 18 November 2019, Ms Cromie provided Mr Williamson with a copy of the initial position description for the role of HR Business Partner (then known as People and Safety Partner), together with details of the remuneration payable in that role.

[38] On 2 December 2019, Mr Williamson sent an email to Ms Cromie asking a number of questions about the role of HR Business Partner. Later on 2 December 2019, Ms Cromie responded to that email.

[39] On 4 December 2019, Mr Williamson met with Ms Cromie and Ms McIntyre. During that meeting Mr Williamson informed Ms Cromie and Ms McIntyre that he “respectfully declined” the HR Business Partner role. I accept Ms Cromie’s evidence that during the discussion on 4 December 2019 she reminded Mr Williamson that if any other opportunities arose prior to his termination date (31 January 2020) that he considered to be suitable opportunities for which he would like to be considered, then he should contact Ms Cromie or Ms McIntyre. This evidence on Ms Cromie’s part is consistent with both the letter Ms Cromie sent to Mr Williamson two days later on 6 December 2019 and the similar statement made by Ms McIntyre at their meeting on 22 October 2019.

[40] By letter from AHG dated 6 December 2019, Mr Williamson was informed:

“As you are aware, AHG was recently acquired by AP Eagers. Over the past few months we have been undertaking a detailed review of the support structures of both businesses to understand where synergies exist between our companies. We have also been considering the complexities of integrating our business to enable us to operate efficiently.

As a result of our review, it has been determined that your current role is not required in our future business structure. After careful consideration of alternative roles available within the business and consultation with you on this matter, we have been unable to identify a suitable redeployment opportunity in line with your skills and experience. The decision therefore has been made to make your role redundant effective Friday 31st January 2020.

Your entitlements are outlined in the attached schedule…

… We also invite you to advise us during this period if a current available role becomes available that you believe is of interest to you and aligns with your relevant skills and experience…”

[41] During December 2019 and January 2020, Mr Williamson became aware of a number of vacant roles in the merged organisation. 27 Mr Williamson’s dismissal took effect on 31 January 2020.

[42] There is a dispute as to whether Mr Williamson told AHG that he was not willing to move out of Newcastle to pursue potential redeployment opportunities in the merged business. AHG contends that Mr Williamson made a statement to this effect at the meeting with Ms Cromie and Ms McIntyre on 4 December 2019. Mr Williamson denies making any such statement and says he was prepared to considering moving away from Newcastle to take up an alternative role in the merged business. I find, on the balance of probabilities, that on 4 December 2019 Mr Williamson did inform AHG that he was not willing to move out of Newcastle to pursue potential redeployment opportunities in the merged business, for the following reasons.

[43] First, even though Mr Williamson was aware in the period from October 2019 until the end of January 2020 of a range of vacant positions in the merged business, based out of Newcastle, which he now contends were reasonable redeployment opportunities for him, at no time prior to his dismissal on 31 January 2020 did Mr Williamson take up the invitation to speak to Ms Cromie, Ms McIntyre or anybody else from AHG about any such positions, save for the role of HR Business Partner. Mr Williamson says he did not speak to Ms Cromie or Ms McIntyre about any of the vacant roles because he believed they had a clear agenda and wanted him gone from the business. I do not accept that Ms Cromie or Ms McIntrye had an agenda or wanted Mr Williamson gone from the business. After hearing Ms Cromie and Ms McIntyre give evidence and asking questions of them myself, I am satisfied that they would have engaged in a constructive and meaningful way with Mr Williamson about alternative positions if he had expressed any interest in a role other than that of HR Business Partner. Further, Mr Williamson asked questions of Ms Cromie about the role of HR Business Partner. 28 I am satisfied that if Mr Williamson had been genuinely interested in moving away from Newcastle and taking up a vacant role, he would have expressed an interest in, or asked questions about, such roles.

[44] Secondly, I accept the evidence given by Ms Cromie and Ms McIntyre that the redeployment process for Mr Williamson would have been different had he indicated a willingness to potentially move away from Newcastle, namely, a range of People and Safety positions located in other regions such as Queensland and Victoria would have been discussed with Mr Williamson.

[45] Thirdly, Ms Cromie gave evidence that Mr Williamson stated in the meeting on 4 December 2019 that “other positions were not an option to him as he was ‘Newcastle based’”. Ms Cromie’s evidence in that regard is supported, in part, by Ms McIntyre, who gave evidence that on 4 December 2019 Mr Williamson said he lived in Newcastle. Although Ms McIntyre did not give evidence that Mr Williamson went on to say that he was not willing to move away from Newcastle, Ms McIntyre explained in her evidence that the context of that discussion was the topic of other redeployment options for Mr Williamson after he had rejected the role of HR Business Partner. Having regard to that context, I am satisfied that Ms McIntyre’s evidence in relation to this issue provides some support for Ms Cromie’s evidence and the finding of fact I have made.

Consideration of reasonable redeployment

[46] Mr Williamson contends that it would have been reasonable for AHG to redeploy him into any of the following vacant positions within AHG’s enterprise, or an enterprise of an associated entity of AHG:

(a) HR Partner, based in Perth, advertised by AP Eagers on 20 January 2020; 29

(b) People and Safety Manager Vic/Tas, based in Melbourne, advertised by AP Eagers on 16 January 2020; 30

(c) Safety Partner – NSW, based in Prestons (Sydney), notified in a JobFlash email on 21 November 2019; 31

(d) Payroll Project Manager, based in Sydney, advertised by AHG on 3 January 2020; 32

(e) HR Business Partner, based in Newcastle at a base salary of $90,000 per annum, which is $10,000 more than was offered to Mr Williamson;

(f) National WHSE & Service Manager, notified as vacant in the organisational chart on 22 October 2019; 33

(g) National HR Admin, notified as vacant in the organisational chart on 22 October 2019; 34

(h) National ER/IR Advisor, notified as vacant in an email from Ms Cairns dated 5 November 2018; 35

(i) National P&S Administrator, notified as vacant in an email from Ms Cairns dated 5 November 2018; 36

(j) Regional Safety Partners for WA, Qld and NSW, notified as vacant in an email from Ms Cairns dated 5 November 2018; 37 and

(k) Regional P&S Administrator Qld, notified as vacant in an email from Ms Cairns dated 5 November 2018. 38

[47] As to each of these positions save for the role of HR Business Partner, I am satisfied that it would not have been reasonable in all the circumstances for AHG to redeploy Mr Williamson to any of these roles because:

(a) he informed AHG that he was not willing to move out of Newcastle and each of these positions was based out of Newcastle; and

(b) he was invited to inform Ms Cromie or Ms McIntyre if he was interested in any vacant roles prior to 31 January 2020, he became aware of these vacant roles prior to 31 January 2020, but he did not, at any time prior to his dismissal, express any interest in any of these roles.

[48] As to the role of HR Business Partner, Mr Williamson was offered and rejected that role, albeit at a salary of $80,000 per annum and with the initial title of People and Safety Partner. However, Mr Williamson did not seek to negotiate the salary of $80,000 offered to him, nor did he ask whether he would continue to receive his annual bonus, annual leave loading, and/or first aid allowance in the position of HR Business Partner. After Mr Williamson rejected the role and AHG interviewed a number of candidates it found a candidate who it believed would be suitable for the role, negotiated a salary of $90,000 for the role, and put in place a somewhat different position description for the role. However, the changes to the salary, title and position description for the role did not alter the substance of the position; it remained the same position offered to and rejected by Mr Williamson. Having regard to all the facts and circumstances, I am satisfied that it would not have been reasonable for AHG to redeploy Mr Williamson to the role of HR Business Partner, whether at a salary of $80,000 per annum (as was offered to and rejected by Mr Williamson) or at a salary of $90,000 per annum (as was negotiated by the successful candidate).

[49] For completeness and even though Mr Williamson did not argue his case in this way, I will also consider the position of People and Safety Manager NSW, into which Ms Kelsey was placed during the restructure, as a potential reasonable redeployment option for Mr Williamson. I am satisfied that it would not have been reasonable in all the circumstances for Mr Williamson to be redeployed to the position of People and Safety Manager NSW because I accept Ms McIntyre’s evidence that Ms Kelsey was the better candidate for that role, having regard to Ms Kelsey’s qualifications (including post graduate qualifications in human resources), experience outside AHG, strong partnering and relationships with senior managers within AHG, and her demonstrated skills and abilities in the human resources function during her employment with AHG. It is true that Mr Williamson is, and was during his employment, well regarded by his direct report, Mr Tomlin, who gave evidence, which I accept, that he had “no issue whatsoever” with Mr Williamson’s performance in his role of HR Manager. Ms McIntyre had some frustration in dealing with Mr Williamson in his role of HR Manager, particularly in relation to the timeliness of various tasks concerning human resources systems and processes, but no disciplinary action was taken against Mr Williamson during his employment with AHG.

[50] For the reasons stated, I am satisfied that it would not have been reasonable in all the circumstances for Mr Williamson to be redeployed within AHG’s enterprise, or an enterprise of an associated entity of AHG. I am satisfied on the evidence that the positions I have considered in paragraphs [46] to [49] above are all the positions into which it may possibly have been reasonable for AHG to redeploy Mr Williamson within its enterprise or an enterprise of an associated entity of AHG.

Conclusion

[51] I am satisfied that AHG’s dismissal of Mr Williamson was a case of genuine redundancy within the meaning of s 389 of the Act. It follows, by reason of s 385(d) of the Act, that Mr Williamson was not unfairly dismissed. I therefore dismiss the Application.

tle: Seal of the Fair Work Commission with Member's signature - Description: Seal of the Fair Work Commission with Member's signature

DEPUTY PRESIDENT

Appearances:

D Williamson, appearing on behalf of himself

J Davies, National ER/IR Advisor for AHG, appearing on behalf of AHG

Hearing details:

2020.

Newcastle (video conference):

25 May 2020.

Printed by authority of the Commonwealth Government Printer

<PR719923>

 1   Section 389(1)(a) of the Act

 2   Jones v Department of Energy and Minerals (1995) 60 IR 304 (Jones) at 308 per Ryan J; applied in Ulan Coal Mines Limited v Howarth [2010] FWAFB 3488; (2010) 196 IR 32 (Ulan Coal 1) at [17]

 3   Ibid

 4   Ibid

 5   Dibb v Commissioner of Taxation (2004) 136 FCR 388 at 404-5

 6   Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 at [27] per Hamberger SDP

 7   Johnston v Blue Circle Southern Cement Pty Ltd (2010) 202 IR 121 at [48]

 8   Ex R4

 9   Ex R1

 10   Ex R7 at annexure Q

 11   Ex R7 at annexure B

 12   Clause 4.1 of the Clerks Private Sector Award 2010

 13   Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714; (2014) 240 IR 130 (TAFE) at [36]

 14   Ibid at [25]

 15   Ibid at [36]-[37]; Teterin & Ors v Resource Pacific Pty Limited t/a Ravensworth Underground Mine [2014] FWCFB 4125; (2014) 244 IR 252 (Teterin) at [28]-[29]

 16   TAFE at [24] & [35]; Ulan Coal Mines Ltd v Honeysett [2010] FWAFB 7578; (2010) 199 IR 363 (Ulan Coal 2) at [28]

 17   Bhalla v Welltech Total Water Management [2014] FWC 7565 at [55]

 18   Ulan Coal 2 at [28]

 19   Ibid at [28]

 20   Ibid at [28]

 21   Ibid at [28] & [34]

 22   Ibid at [28]

 23   Ibid at [34]

 24   Teterin at [35]

 25   Ex R7 at annexure A

 26   For example, Ex A2 at annexure P

 27   Ibid

 28   Ex A2 at annexure J

 29   Ex A2 at annexure P

 30   Ex A2 at annexure P

 31   Ex A2 at annexure P

 32   Ex A2 at annexure P

 33   Ex A2 at annexure B

 34   Ex A2 at annexure B

 35   Ex A2 at annexure C

 36   Ex A2 at annexure C

 37   Ex A2 at annexure C

 38   Ex A2 at annexure C