Earnings, redundancy and unfair dismissal

In this very interesting extract from an unfair dismissal case delivered recently the Fair Work Commission Deputy President who heard and determined the case considered (and accepted) in detail both of the jurisdictional defences offered up by the employer, namely that the applicant employee’s annual rate of earnings exceeded the high income threshold and that the termination of employment arose as a case of genuine redundancy.

“High income threshold

[46] Before turning to consider whether the annual rate of earnings of the Applicant were below the HIT, I must firstly establish whether the Applicant was covered by a modern award or enterprise agreement. The Applicant did not contend that he was covered by either a modern award or enterprise agreement. I have also considered whether the role would fall within the coverage of a modern award and have concluded that it would not, having regard to the seniority of the role and the management responsibilities. I am satisfied that the Applicant was not covered by a modern award or enterprise agreement in his employment with the Respondent.

[47] I now turn to consider whether the sum of annual rate of earnings of the Applicant exceeds the HIT. Section 332 of the Act relevantly defines “earnings” as follows:

“332 Earnings

(1) An employee’s earnings include:

(a) the employee’s wages; and

(b) amounts applied or dealt with in any way on the employee’s behalf or as the employee directs; and

(c) the agreed money value of non-monetary benefits; and

(d) amounts or benefits prescribed by the regulations.

(2) However, an employee’s earnings do not include the following:

(a) payments the amount of which cannot be determined in advance;

(b) reimbursements;

(c) contributions to a superannuation fund to the extent that they are contributions to which subsection (4) applies;

(d) amounts prescribed by the regulations.

Note: Some examples of payments covered by paragraph (a) are commissions, incentive-based payments and bonuses, and overtime (unless the overtime is guaranteed).

(3) Non-monetary benefits are benefits other than an entitlement to a payment of money:

(a) to which the employee is entitled in return for the performance of work; and

(b) for which a reasonable money value has been agreed by the employee and the employer;

but does not include a benefit prescribed by the regulations.

(4) This subsection applies to contributions that the employer makes to a superannuation fund to the extent that one or more of the following applies:

(a) the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;

(b) the employer is required to contribute to the fund for the employee’s benefit in relation to a defined benefit interest (within the meaning of section 291-175 of the Income Tax Assessment Act 1997) of the employee;

(c) the Employer is required to contribute to the fund for the employee’s benefit under a law of the Commonwealth, a State, or a Territory.

[48] The HIT is an amount prescribed and worked out by operation of reg. 2.13 of the Fair Work Commission Regulations 2009. Applying the calculation provided by that regulation, the threshold at the time of the Applicant’s dismissal was $158,500.00.

[49] As is clear from clause 332(1)(c) of the Act, it is necessary to include consideration of any non-monetary benefits. In the present case it is contended by the Respondent that the monetary or notional value of the private usage of a fully maintained company motor vehicle should be included in the sum of the annual rate of earnings of the Applicant. This is contested by the Applicant. Relevantly, regulation 3.05(6) of the Fair Work Regulations 2009 provides;

“(6)  If:

(a) the person is entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person’s employer; and

(b) the benefit is not an entitlement to a payment of money and is not a non-monetary benefit within the meaning of subsection 332(3) of the Act; and

(d) the FWC is satisfied, having regard to the circumstances, that:

(i) it should consider the benefit for the purpose of assessing whether the high income threshold applies to a person at the time of the dismissal; and

(ii) a reasonable money value of the benefit has not been agreed by the person and the employer; and

(iii) the FWC can estimate a real or notional money value of the benefit;

the real or notional money value of the benefit estimated by the FWC is an amount for subparagraph 382(b)(iii) of the Act.”

[50] Before turning to the particular circumstances of this case it is useful to set out some relevant case law. In Francesco Zappia v Universal Music Australia Pty Limited T/A Universal Music Australia 34 (Zappia) a Full Bench of Fair Work Australia considered the term annual rate of earnings in an appeal of a decision of Hamberger SDP at first instance. The Full Bench said as follows;

“[8] His Honour dealt with the annual rate of earnings aspect thus:

[9] … The most natural way of construing the expression annual rate of earnings in s.382 is by reference to the annual rate of earnings at the time of the applicant’s dismissal. If Parliament had wished to refer to the average amount earned over the previous 12 months it could easily have done so. I note, for example, that in setting the compensation cap in relation to unfair dismissal, s.392 specifically refers to the amount that the employee received (or was entitled to) during the 26 week period immediately before the dismissal.” 35

[51] The Full Bench then concluded as follows;

“[9] On the appeal, Mr I Latham, of counsel, who appeared for the appellant both at first instance and on the appeal, submitted that his Honour had erred in his construction of the expression ‘annual rate of earnings’. In our view his Honour was clearly correct. Section 382 of the Act relevantly provides that a person is protected from unfair dismissal at a time if, at that time, the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold. It is clear that the time at which the annual rate of earnings must be ascertained is at the time of the termination of the person’s employment. What needs to be ascertained is the annual rate of earnings at that time, not the annual earnings to that time (the amount earned in the 12 months to that time).” 36

[52] What may be taken from Zappia for the purposes of the present case is that the actual earnings of the Applicant over the 12 months prior to his dismissal on 23 September 2021 is not relevant to the determination of the annual rate of earnings. Rather, it is his actual salary and the monetary or notional value of other benefits at the time of his dismissal that must be determined.

[53] Another relevant consideration in determining the annual rate of earnings is that of what if any impact prolonged periods of absence prior to dismissal due to workers compensation, personal leave or authorised unpaid leave may have on the calculation of the annual rate of earnings. This has been variously considered by the Commission. In Cross v Bechtel Construction (Australia) Pty Ltd 37 (Cross) VP Catanzariti considered the impact of a 15 month absence of the applicant on unpaid leave due to medical reasons in the period prior to his dismissal in conjunction with the dismissed employee’s contractual obligation to work 58 hours per week inclusive of 18 hours overtime. The Vice President relevantly said as follows;

“[15] Prior to being off sick, the Applicant worked 18 hours paid overtime each week. He now contends that he was not entitled to overtime while on unpaid leave. On that analysis it would mean that if a person is on unpaid leave for a year, their earnings for the purposes of s. 332 of the Act would be zero and therefore they would fall under the high income threshold. I am not persuaded that this is the correct construction of the legislation. It is clear on the material before me that but for the sick leave, the Applicant would have been obliged to work 58 hours and would have been paid the regular overtime. The Applicant during his cross-examination of Ms Treglown sought to use the example of overtime not being available in inclement weather conditions as evidence that the overtime was not guaranteed. However, inclement weather conditions or in fact other situations akin to an event of force majeure which are outside the employer’s control, are not indicators of whether overtime is guarantee and the Applicant’s reliance on this evidence is a misapplication of the test and conflates issues. The evidence of an isolated example of overtime not being worked in inclement weather conditions cannot be relied upon to say the overtime is generally not guaranteed. Nor can the argument that the Applicant was on unpaid sick leave be relied upon to form the view that his earnings for the purposes of the legislation did not include overtime.

[16] The correct test for determining the annual rate of earnings for the purposes of s. 332 of the Act, is to determine the rate of earnings at the time of termination of employment, not the actual earnings up to that time.  As such, the relevant consideration is whether he would have been expected to work a 58 hour week if he had been otherwise fit, excluding any extraordinary circumstances. The evidence of the Respondent makes it is clear that the Applicant was required to regularly work 58 hours a week, as he had done prior to going on sick leave and he would have been paid for every one of those hours based on the hourly rate equivalent of the base salary.” 38

[54] More recently, A Full Bench in Paul Dirkis v Staffing and Office Solutions Pty Ltd T/A SOS Recruitment 39 (Dirkis), in considering fluctuations in hours of work in the period prior to dismissal, referred with approval to both Zappia and Cross and then concluded as follows;

“[49] In any event as the Full Bench observed in Zappia, what needs to be ascertained is the annual rate of earnings at that time of the termination of the person’s employment, not the actual annual earnings to that time. The Letter of Appointment was clear as to rate of pay and standard working week, and the calculation of the Appellant’s annual rate of earnings by the Commissioner as being $208,000.00 was correct and unexceptional. That the Appellant took unpaid leave does not affect in any way the calculation of his annual rate of earnings.

[50] The interpretation advanced by the Appellant would lead to absurd results. For example, in Cross v Bechtel Constructions (Australia) Pty Ltd , Vice President Catanzariti considered the application of the high-income threshold to an employee who had been on unpaid leave due to medical reasons for approximately fifteen months prior to his termination. There was no suggestion in that matter that time on unpaid leave affected the calculation of the employees annual rate of earnings, and the focus was on the whether the Applicant would have been paid regular overtime prior to being off sick, but the interpretation advanced by the Appellant would result in such an employee falling below the high-income threshold no matter what their income.”

[55] Returning to the present case, the Applicant stated in his evidence that his salary for the fiscal year 2020/2021 was $151,324 and that his earnings in the 12-month period prior to his dismissal were less than that figure due to his period off on workers compensation. He did not however contest that at the time of his dismissal his base salary was $153,213 and that he was entitled to a company provided motor vehicle as part of his conditions of employment.

[56] It follows on the authority of Zappia, and more recently Dirkis, that the period of the Applicant’s absence on workers compensation is not relevant for the purpose of calculating his annual rate of earnings. Rather, it is what the Applicant would have been paid for the performance of his duties had he not been on an extended absence due to workers compensation. That includes the Applicant’s base salary ($153,213) and the notional or monetary value of other benefits to which he was entitled to at the time of his dismissal. I am satisfied that the Applicant’s base salary of $153,213 at the date of dismissal must be included in the sum of the Applicant’s annual rate of earnings.

[57] Turning now to the contested matter of the motor vehicle, the Applicant variously contends that any private use of the motor vehicle should not be considered for the purpose of determining his annual rate of earnings, that any private usage should be discounted for his prolonged absence on workers compensation in 2021 and that the Respondent’s 70% estimate grossly overstates his private usage of the vehicle. It is apparent that absent the inclusion of any real or notional monetary value for the motor vehicle, the Applicant’s annual rate of earnings based alone on his base salary of $153,213, falls below the HIT of $158,500. Consequently, resolution of what if any monetary value is placed on the company provided motor vehicle is central to determining the Respondent’s HIT jurisdictional objection.

[58] In resolving what if any value is attached to the motor vehicle and included in the sum of the Applicant’s annual rate of earnings, it is necessary for me to determine;

  • whether the car constitutes a non-monetary benefit;
  • whether that benefit should be included in assessing whether the HIT applies;
  • whether a reasonable money value has been agreed; and if not
  • estimate a real or notional money value of the benefit.

[59] Turning firstly to whether the motor vehicle constitutes a non-monetary benefit. As previously set out above, the Applicant contends that no monetary value should be placed on the motor vehicle for a range of reasons, the relevant points being;

  • the motor vehicle was predominantly a tool of trade and that he was always ‘on duty;’
  • he was required to undertake site and office attendance ‘as and when required;’
  • the FBT declaration filed in respect of the car always stated that the motor vehicle was for 100% business use; and
  • he was required to carry bulky tools essential to performance of his work.

[60] I do not accept the Applicant’s submission that he was always ‘on duty.’ There was no such contractual obligation and to suggest such a requirement could be imposed would be, with respect, a nonsense. Nevertheless, the essence of the Applicant’s submission is that the car was a “tool of trade,” was overwhelmingly used for business purposes and as such any private usage was incidental to its business use. It follows on the Applicant’s argument that the private usage of the motor vehicle should not be considered for the purpose of determining his annual rate of earnings. Support for the Applicant’s submission can be found in Rofin Australia Pty Ltd v Newton 40 (Rofin) in which the Full Bench of the Australian Industrial Relations Commission relevantly stated:

“Where a motor vehicle is provided to an employee in lieu of salary that might otherwise have been paid, it is appropriate that the private benefit derived by the employee from the provision of the motor vehicle be counted as part of the employee’s remuneration. Where, however, the vehicle is provided for business purposes and the employee’s entitlement to private use is purely incidental, the provision of the motor vehicle should be treated no differently to the provision by the employer of any other tool or piece of equipment essential to the performance of the job.” 41

[61] In considering whether the motor vehicle constitutes a non-monetary benefit in the present case, it is necessary to have regard to the Applicant’s Letter of Employment where it explicitly provides for the provision of fully a maintained motor vehicle. Schedule 2 of the Letter of Employment relevantly details the vehicle entitlement as follows;

“8 A fully maintained company-supplied motor vehicle will be provided to you in accordance with Company policy. The vehicle is supplied primarily for business use to assist in the performance of your role within the business, with limited private use available. Private use of such vehicle is restricted to home to work travel, minor or infrequent use, and other private use which is incidental to the business use of the vehicle. The vehicle is not available for use during periods of annual or long service leave or during periods of personal leave exceeding one month’s continuous duration. Any notional value of the business or private use of the vehicle is not convertible to cash” 42.

[62] The following may be said about the motor vehicle entitlement. While I accept that the vehicle was provided primarily for business use, the Letter of Employment explicitly acknowledged that the vehicle was available for personal use, subject to the Company policy and the contractually expressed limitations on private usage. The contractual provision also acknowledges the notional value that may attach to the motor vehicle entitlement and that any such value could not be cashed out. That is unsurprising in circumstances where the Applicant unarguably required the vehicle to undertake his duties.

[63] As to whether the Applicant’s private use of the motor vehicle was ‘purely incidental’ to its business use, I am not persuaded that such use was ‘purely incidental.’ As previously observed, no logbooks were maintained, and the Applicant offered no probative evidence to rebut the evidence and assumptions of Messrs Denino and Desira going to the Applicant’s required motor vehicle travel during business hours and the low incidence of out of hours callouts. I consequently accept that evidence which leads me to conclude that the Applicant’s private vehicle usage was approximately 70%. In these circumstances I am satisfied that while the Applicant’s company-maintained motor vehicle was provided primarily for business purposes, private usage of the vehicle of the Applicant was not ‘purely incidental.’

[64] It follows from the above and I am satisfied that the private usage by the Applicant of his company-maintained motor vehicle constituted a non-monetary benefit and that the value of that benefit should be included in the calculation of the sum of the annual rate of earnings of the Applicant. The parties had not agreed to a notional or monetary value for the motor vehicle. Therefore, it is necessary for me to determine a monetary value to be included in the calculation of the annual rate of earnings.

[65] In H.W. Fewings v Kunbarllanjnja Community Government Council 43 (Fewings) the Full Bench of the Australian Industrial Relations Commission held that the most appropriate method of calculating the monetary value of the benefit of the private use of a motor vehicle was to apply the following formula:

  1. Determine the annual distance travelled by the vehicle in question.
  2. Determine the percentage of that distance that was for private use.
  3. Multiply the above two figures to obtain the annual distance travelled for private purposes.
  4. Estimate the cost per kilometre for a vehicle of that type (may be obtained from RACV, NRMA or other similar motoring association).
  5. Multiply the annual distance travelled for private purpose (obtained at step 3) by the estimated cost per kilometre.

[66] Turning firstly to the annual distance travelled by the vehicle in question. The Respondent provided data for three different 12-month periods, that of the 2019 and 2020 calendar years and the 12 month-period from 14 April 2020 to 14 April 2021. The latter period was chosen by the Respondent as it was the 12 month period immediately preceding the return of the motor vehicle by the Applicant on commencement of his period on workers compensation from 14 April 2021.

[67] The Applicant submits that the period between 14 April 2021 and 23 September 2021 should be considered in calculating the annual distance travelled by the vehicle in the 12-month period immediately preceding his termination of employment. Such an approach would in my view be inappropriate and inconsistent with the reasoning in Zappia and Dirkis. It is necessary to determine the value of the motor vehicle benefit at the date of dismissal based on the assumption that the Applicant was able to perform his normal duties. In order to do so it is necessary in my view in to consider a full 12-month period in which the vehicle was available for the Applicant’s use. While a lesser period of data could be used in circumstances where an employee had less than 12-month’s service for example, it would still be necessary to extrapolate the data of that lesser period to over a 12 month period to ascertain the “annual distance” travelled. In the present case, the most recent full 12-month period in which the Applicant had the use of the motor vehicle was the period ending 14 April 2021.

[68] The distance travelled over that 12 month period ending 14 April 2021 was 23,431km of which the Respondent estimates that 70% of that usage was for private use. Tolls incurred totalled $2,871.27 in the same period. The Respondent’s estimate of private usage includes assumptions regarding travel by the Applicant within his ordinary hours of work between the Applicant’s normal business location and other sites of the Respondent and is set out above at [31]-[32]. With the assumptions included in the Respondent’s analysis, the total business use is just above 10%. Consequently, the 70% private use estimate appears quite conservative and would allow for significant additional business travel both inside and outside of ordinary hours of work. Those assumptions while criticised by the Applicant were not rebutted by any detailed analysis. I am satisfied that the 70% private usage estimate is sound and reasonable.

[69] Using the 70% private usage estimate and applying it to the 12-month period ending 14 April 2021 results in the following calculation per the Fewings formula;

Step 1: Annual distance travelled by the vehicle = 23,413 km
Step 2: Private vehicle percentage determined = 70%
Step 3: Annual distance of 23,413km x 70% = 16,389km
Step 4: RACV cost per kilometre for Toyota Camry = .6856c 44
Step 5: 16,389 x .6856c = $11,236.37

[70] To the figure of $11,236.37 must be added the value of tolls incurred which in the relevant period will be 70% of $2,871. 27, that being $2009.89. That results in a total value of the motor vehicle of $13,246.26.

[71] Noting that the 12 month period ending 14 April 2021 had a higher kilometre travelled figure then the 2019 and 2020 calendar years it is useful to also consider the figure of the lowest kilometre travelled 12-month period for which data was provided, that being the 2019 calendar year. In that 12-month period the vehicle travelled 17,809km and $1,924.45 in tolls were incurred. The resulting Fewings calculation is as follows;

Step 1: Annual distance travelled by the vehicle = 17,809 km
Step 2: Private vehicle percentage determined = 70%
Step 3: Annual distance of 23,413km x 70% = 12,466km
Step 4: RACV cost per kilometre for Toyota Camry = .6856c
Step 5: 12,466 x .6856c = $8,546.90

[72] To the above derived figure of $8,546.90 must be added the value of tolls incurred which in the relevant period will be 70% of $1,924.45, that being $1,347.12. That results in a total motor vehicle value of $9,894.02.

[73] If, however I am wrong in my assessment of the private usage and were to take the Applicant’s case at its highest, it would require me to estimate the Applicant’s private usage on the assumption that the only private vehicle usage of the motor vehicle was the Applicant’s travel to and from work with very minor occasional detours via Chadstone Shopping Centre on the way home from work which added less than 1 km to the return trip. As set out above at [37], the Applicant says that the maximum return trip to/from work was 39km and was less depending on his travel to closer work locations. No information was provided to make any assessment of how often he travelled to the various closer locations he identified. However, noting that the Applicant’s nominal work location was stated as 555 Bourke St in his Letter of Employment, I propose to use that location as an ‘average’ for the purpose of estimating his private usage. On the Applicant’s figures, travel to and from that location from home involved a round trip of 35.2km.

[74] Taking the daily travel distance of 35.2km and applying that over a 12 month period requires further assumptions to be made including deduction of 4 weeks annual leave, a further deduction of 2 weeks for public holidays and a further week’s deduction for personal leave and other absences. This results in an assumption of 45 weeks (Monday-Friday) of travel to and from work per annum. The annual kilometres travelled calculation then derived, based on these assumptions, is that of 45 weeks x 5 days per week x 35.2km/day = 7,920km for private use of the motor vehicle over a 12 month period.

[75] Applying the above annual kilometres of private travel to the 12-month period ending 14 April 2021 yields a private usage percentage of 7,920/23,413 = 33.8%. The following Fewings calculation results;

Step 1: Annual distance travelled by the vehicle = 23,431 km
Step 2: Private vehicle percentage determined = 33.8%
Step 3: Annual distance of 23,413km x 33.8% = 7,920km
Step 4: RACV cost per kilometre for a Toyota Camry = .6856c
Step 5: 7,920km x .6856c = $5429.95

[76] To the above derived figure of $5,429.95 must be added the value of tolls incurred which in the relevant period will be 33.8% of $2,871.27, that being $970.49. That results in a total annual motor vehicle value of $6,400.44.

[77] If I were to also apply the Applicant’s case at its highest in respect of the lowest kilometres travelled 12-month period (in 2019), the following calculations would follow. Applying the travel to/from work figure of 7,920km per annum calculated above at [74], this would result in the following private use percentage of 7,920/17,809km for the 2019 calendar year which equals 44.5%. Applying Fewings would yield the following;

Step 1: Annual distance travelled by the vehicle = 17,809 km
Step 2: Private vehicle percentage determined = 44.5%
Step 3: Annual distance of 17,809 x 44.5% = 7,920km
Step 4: RACV cost per kilometre for a Toyota Camry = .6856c
Step 5: 7,920km x .6856c = $5429.95

[78] To the above derived figure of $5,429.95 must be added the value of tolls incurred which in the relevant period will be 44.5% of $1,924.45, that being $856.38. That results in a total annual motor vehicle value of $6,286.33.

[79] While I have considered the Applicant’s evidence and submission regarding his private use of the vehicle being limited to travel to/from work, I find that submission to be unpersuasive in the absence of evidence as to the incidence of business use of his vehicle during ordinary hours of work and in respect of out of hours call-outs. I am consequently comfortably satisfied that the monetary value to be attributed to the motor vehicle benefit the Applicant was entitled to, is $13,246.26 in accordance with the Respondent’s calculation. That figure must be added to the Applicant’s base salary of $153,213, to which he was entitled on 23 September 2021, to determine the annual rate of earnings. The total annual rate of earnings is therefore $166,459.26 which is above the HIT of $158,500.

[80] However, if I am wrong in my assessment and taking the Applicant’s case at its highest, the annual value of the motor vehicle of $6,400.44 derived at [75]-[76] above, must be added to the base salary of $153,213 which results in a total annual rate of earnings of $159,613.44 which is also above the HIT. Alternatively, if I were to calculate the value of the motor vehicle based on kilometres travelled in the 2019 calendar year, then the annual rate of earnings would be calculated by adding $6,286.33, derived above at [77]-[78], to $153,213 which equals $159,499.33. Again, the annual rate of earnings of the Applicant arrived at is in excess of the HIT.

[81] It follows from the above and I am satisfied that the Applicant’s annual rate of earnings is above the HIT. As such he is not a person protected from unfair dismissal and his application for an unfair dismissal remedy must be dismissed.

[82] If, however I am wrong in my conclusion in respect of the HIT objection, it is appropriate for me to also consider the genuine redundancy objection raised by the Respondent, to which I now turn.

Was the dismissal a case of genuine redundancy?

[83] Section 389(1) of the Act sets out the meaning of genuine redundancy and relevantly states 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”

[84]  Section 389(2) of the Act provides for an exclusion to that which would otherwise fall within the definition of genuine redundancy and relevantly states as follows:

“(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.”

Was the Applicant’s job no longer required – s.389(1)(a)?

[85] I turn first to consider whether the Respondent no longer required the Applicant’s job to be performed by anyone because of the operational requirements of the Respondent.

[86] A Full bench considered the meaning of the term “genuine redundancy” in Ulan Coal Mines Limited v Henry John Howarth and others 45 (Ulan) and relevantly stated as follows:

“[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.

[18] In Kekeris v A. Hartrodt Australia Pty Ltd Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:

“When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed -=by the applicant still exists.” 46 (references omitted)

[87] It follows from the Full Bench’s reasoning in Ulan and the summary of relevant cases cited in their decision that:

(i) A job is a collection of functions, duties and responsibilities assigned to a particular employee within an organisation;

(ii) The functions, duties and responsibilities may cease to be part of an employee’s job through a reorganisation or redistribution of duties;

(iii) Should there no longer be any functions or duties to be performed by a particular employee, then his or her job ceases to exist;

(iv) The fact that the tasks and duties previously performed by an employee may have survived and been reallocated to other employees through a restructure does not mean the job is still required; and

(v) An employee’s dismissal may be a genuine redundancy even though particular functions, duties and responsibilities previously performed by that employee are being performed by other employees.

[88] The Respondent submits that various organisational structure reviews under the banner of Project Orange have resulted in several changes including; governance and management functions formerly undertaken by the Applicant being absorbed into Mr Denino’s role, transfer of health and safety responsibilities to the Health and Safety team, and budget compliance activities previously undertaken by the Applicant now being undertaken by the Power and Works Coordinator.

[89] With the above-referred reallocation of responsibilities and the capacity of Mr Denino to take on more of the governance functions within the Power and Overhead team, Mr Denino reviewed the need for the Team Manager – Power and Substations role. His conclusion, as set out in the Redundancy Business Case, was that the creation of the new Superintended Role at a PCO4 enabled day-to-day tasks formerly undertaken by the Applicant to be undertaken by the new role but in addition the new role could provide greater technical support in relation to electrical integrity, safety, and security in respect of the Respondent’s network.

[90] The increased capacity of the Superintendent Role to provide technical support to the team arises from the pre-requisites for appointment to the Superintendent Role;

  • a minimum of 10 years’ experience in the Respondent’s network operation;
  • detailed knowledge of tram electrical network operations inclusive of network control room and power substations; and
  • demonstrated experience in substation maintenance and/or construction.

[91] Significantly, the new Superintendent Role does not include several Key Accountabilities that formed part of the former Team Manager – Power and Substations role accountabilities. The key differences in key result areas, as reflected in the position descriptions for the two roles, can be summarised as follows;

  • ‘Financial’ (budget management) was weighted at .19 47of the Team Manager – Power and Substations role and included defined major activities whereas the Superintendent Role is limited to providing ‘budget support’48.
  • ‘Safety’ attracted a .24 weighting in the Team Manager – Power and Substations role. The position description detailed well defined major activities, including that of; embedding a zero harm culture, ensuring competent and safe cost effective operation, providing subject matter expert input, analyse risks and implement controls and implementing action to address non-conformances. By contrast, the Superintendent Role identified the following key performance indicators; leading and supporting the zero-harm culture, actively supporting improved safety processes, and supporting the conduct of safety reviews and improvements in safety systems.
  • ‘Customer Service’ attracted a .19 weighting in the Team Manager – Power and Substations role and identified a range of major activities including; implementation of annual asset management initiatives, participation in annual risk management assessment processes, management of team risk profile in order to execute risk mitigation strategy, provide expert advice on tram power operations issues and execution of agreed continuous improvement plans. The Superintendent Role has no equivalent governance key performance indicators.

[92] Further to the above, key differences between the two roles are said to exist by the Respondent in respect of financial expenditure authority, disciplinary action authority, hours of work, rostering, and flexibility to work in lower classifications. The Applicant challenged the Respondent’s evidence as to his expenditure and disciplinary action authority. He stated that contrary to his position description, he needed to obtain Mr Denino’s approval of expenditure even where the amount proposed to be expended fell below the $5,000 threshold stated in the position description. The Applicant also gave unchallenged evidence that he was specifically instructed by HR that he could not initiate disciplinary action without HR approval.

[93] I accept the Applicant’s evidence that his expenditure and disciplinary authority were limited in practice. Those matters aside, I am satisfied that the other areas identified by the Respondent in respect of hours of work and flexibility to work in operator roles are differences of substance. The Applicant freely conceded in his evidence that he could not be required to work on shiftwork and/or backfill operator roles are at a lower level. Those key elements serve to further reinforce the difference between the Superintendent Role and the former Team Manager – Power and Substations role.

[94] It is apparent that the focus of the new role has moved from one of governance, and management of the Power Operations Centre and Substations team as previously existed, to one of supervision and more direct technical support of the team. This is consistent with the restructuring of the role from that of a management level role to a superintendent role covered by the Agreement. This change is significant in that brings with it the capacity for the Superintended Role to be called to cover operators from time to time, work on shift and undertake duties at a lower level. This provides a greater degree of flexibility for the Respondent in use of the role.

[95] The gravamen of the Applicant’s case is that the title of his role has been relabelled to that of Electrical Network Superintendent and reclassified from a Managerial level role to that of a PCO4 level role covered by the Agreement. The substance of the role, according to the Applicant, has not changed. I do not agree for the reasons set out above. However, the Respondent can be rightly criticised for the lack of action on its part in notifying staff of the organisational change in a timely manner, as evidenced by the organisational chart that does not appear to have been properly updated until late November 2021. I also note that Mr Desira has not taken steps to amend his position title on his standard email and it still reflects the Manager role he was acting in for several months.

[96] As regards the Applicant’s complaint that the Superintendent Role Position Description was prepared by a HR staff member some time before the claimed review by Mr Denino, that complaint has no merit in my view. As explained by Mr Denino, which evidence I accept, the reference in the position description to the HR staff member and the date of the position description’s preparation in March 2021 referred to when the position description template was developed. I accept that Mr Denino prepared the position description for the Superintendent Role in July 2021. While the Respondent’s administrative processes in announcing the organisational may have been less than meticulous, they do not in my view detract from the substance of the change in structure.

[97] I am satisfied that the functions, duties, and responsibilities formerly assigned to the Applicant have been redistributed internally to other employees. This has included reallocation of management and governance functions to Mr Denino in the Manager, Power & Overhead role, transfer of budget management accountability to the Power and Works Coordinator and transfer of health and safety accountabilities to the Health and Safety team. The balance of the functions, duties, and responsibilities, those being day to day tasks formerly undertaken by the Applicant, have been assumed by the Superintendent Role. However, the Superintendent Role is qualitatively different to the Team Manager – Power and Substations role in that the former is one of supervision and technical support rather than the latter which was focussed on management and governance. The Superintendent Role consequently requires far deeper technical knowledge of and experience within the Respondent’s power distribution network.

[98] I am satisfied that while the Applicant’s former duties are still required, his role is not. On that basis I am satisfied that the Applicant’s role of Team Manager Power and Substations was no longer required by the Respondent to be performed by anyone because of changes in the operational requirements of the Respondent’s business.

Did the Respondent comply with any consultation obligations – s.389(1)(b)?

[99] Whether the Respondent was required to comply with particular consultation obligations turns on whether the Applicant was covered in his employment by a modern award or an enterprise agreement and where such instrument contains a consultation provision. It is not in dispute that the Applicant was not covered by an enterprise agreement and nor did either the Applicant or the Respondent contend that the Applicant was covered by a modern award.

[100] The subjective opinion of the parties as to whether a modern award covered the Applicant is irrelevant as the application of a modern award is a matter of fact to be determined by the Commission. I am satisfied that the role the Applicant was employed in was a senior management role and consequently was not covered by a modern award. Therefore, s.389(1)(b) does not apply so as to give rise to consultation obligations under a modern award or enterprise agreement.

Would redeployment have been reasonable in all of the circumstances – s.389(2)?

[101] I turn now to consider whether it would have been reasonable in all the circumstances to redeploy the Applicant into another role.

[102] Mr Denino gave evidence that he considered whether the Applicant was able to fill the Superintendent Role but concluded that he lacked the necessary experience within the Respondent’s operations to be able to fulfil the technical support requirements of the role. Self-evidently, while the Applicant was well qualified and experienced in other industry sectors, he lacked the breadth and depth of experience in the Respondent’s power distribution and operations network that was required in the Superintendent Role.

[103] The Applicant was also provided with a list of vacancies when he was given notice of his redundancy on 23 August 2021. He subsequently acknowledged receipt of that list on 26 August 2021 and that he was not qualified for the ‘vast majority’ of the available roles. Further, he expressed no interest in any of the roles at that time although he now submits that he ought to have been considered for the Head of Project Management Office role having previously applied for and been rejected for that role.

[104] A review of the roles in the vacancy list provided on 23 August 2021 reveals a mix of operational, finance, safety, contracts, security, and OH&S roles. While acknowledging he was not qualified for the majority of those roles, the Applicant now identifies in his material 49 that he was qualified for several of the roles although he has not identified in these proceedings how he was qualified for those roles. However, with the exception of the Head of Project Management Office role, the roles which the Applicant contends he was qualified for are assessed by the Applicant as ‘minor roles.’ I infer by that description that the Applicant means that the roles were more junior roles than the position he filled prior to his dismissal. In any case, he only pressed in these proceedings that he ought to have been considered for the Head of Project Management Office role although in doing so he appears to accept that he may have required additional training to do the role.

[105] Mr Denino was clear in his evidence that, contrary to the Applicant’s claim that he had previously applied for and been rejected for the Head of Project Management Office role, the role he had applied for and been unsuccessful in securing in June 2021 was a different role, that of Manager, Project Management Office. Mr Denino also gave unchallenged evidence that he considered the Applicant for the Head of Project Management Office role but concluded that he was not qualified for the role as he lacked the necessary experience in tendering and bids for public transport work, or in setting up tendering teams and that he only had a short period of experience in the light rail industry.

[106] I accept Mr Denino’s evidence as to the Applicant’s lack of suitability for the Head of Project Management role. I am also satisfied that while there were several vacancies at the time of the Applicant’s dismissal, he was either not qualified or the roles were not appropriate given the seniority of the role he filled prior to his dismissal. In any case, he expressed no interest in those roles at the time they were advised to him for consideration on 23 August 2021.

[107] I accept and am satisfied based on Mr Denino’s evidence, which the Applicant did not effectively rebut, that at the time of the Applicant’s dismissal there were no other suitable roles that were available that it would have been reasonable in all the circumstances to transfer the Applicant into. Nor were than any associated entities within which there were any suitable roles to place the Applicant at the time of his dismissal.

Summary on genuine redundancy

[108] For the reasons set out above I am satisfied that the Applicant’s dismissal was a case of genuine redundancy because as at 23 September 2021:

(i) the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of its enterprise;

(ii) the Applicant was not covered in his employment by a modern award or enterprise agreement therefore the obligation for the Respondent to have complied with particular consultation obligations does not arise; and

(iii) it would not have been reasonable in all the circumstances for the Applicant to be redeployed within the Respondent’s enterprise or the enterprise of an associated entity of the Respondent.

Conclusion

[109] For the reasons set out above I am satisfied that the Applicant’s annual rate of earnings at the date of his dismissal on 23 September 2021 was in excess of the high income threshold of $158,500. I have also determined in the alternative that his dismissal was a genuine redundancy.

[110] It follows from the above that the Respondent’s jurisdictional objections are upheld and that the Applicant’s application for an unfair dismissal remedy must be dismissed for want of jurisdiction. An order giving effect to this decision will be issued in conjunction with this decision.”

Greig v KDR Victoria Pty Ltd T/A Yarra Trams (2022) FWC 8 delivered 7 January 2022 per Masson DP