Fair work cases, redeployment and unfair dismissal

“One of the statutory criteria of a genuine redundancy under the Fair Work Act  (see sub-sec 389(1)) is that a termination of employment will not be regarded as a genuine redundancy (and thus be a complete jurisdictional defence to an unfair dismissal claim)if it would have been reasonable in all the circumstances for the person to be redeployed within the employers’ enterprise or the enterprise of an associated entity of the employer.

What this means in a practical sense is the gist of the following passages from just such a case in the Fair Work Commission recently.

“Redeployment

[73] The Applicant contends that it was reasonable to expect that the Respondent would canvass the availability of alternate employment from an associated entity, namely the University.

[74] The Applicant points to the decision of Aldred v Hutchinson Pty Ltd in which it was held to be reasonable to expect Hutchinson Pty Ltd to canvass the availability of roles within the entity nationwide. 5 There it was stated that:

“To artificially limit enquiries concerning redeployment opportunities within the Respondent’s enterprise to the Victorian division was inherently unjust, having regard to the nature of the employer’s enterprise as a large national construction business.”  6

[75] The Applicant said that in this case it would have been entirely reasonable to expect that the Respondent would canvas or facilitate an investigation into roles that may be available employment options within the University. The Applicant says could have been as simple as making a phone call or sending an email. She says that given that she was able to identify reasonable employment opportunities within the University using publicly available information, it would be entirely reasonable to expect that the Respondent would undertake that single call or email. That is particularly so, the Applicant says, in circumstances where she understands that the Respondent contacted the University regarding its submissions and evidence in these proceedings.

[76] The Respondent raised Kestrel in support of its position. There, the Commission found it was not reasonable for the Applicant to be redeployed within the Rio Tinto Coal Australia Group as it was demonstrated that there were no positions that the Applicant could have reasonably been redeployed into. The Applicant says that case may be distinguished because here the Respondent did not acknowledge the positions presented to it by the Applicant during the consultation process and the Commission should keep that in mind when considering the reasonableness of the Respondent’s actions.

[77] At the meeting on 23 August 2021, the Respondent provided reasons as to why they were making the position redundant but did not explain the actions the Respondent was taking to mitigate the effect on the possibility of redundancy as per the Agreement. The Applicant submits that the decision had already been made to make her redundant, given that Mr Toporek had been asked to “begin the process of managing the redundancy of the Project Coordinator role”.

Consideration

[78] There are a number of issues that I must consider under s.389 of the Act.

[79] First, whether the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the Respondent’s operational requirements. 7 Based on the evidence presented, it is clear that the pandemic had severe consequences for the Respondent’s operations. With fewer students and staff attending the campus, there was a significant reduction in income but increased expenditure with respect to cleaning. The University put a number of its capital projects into abeyance, which meant that there was no work to be done in respect of same by the Respondent. While I accept that some aspects of the Applicant’s role may still have needed to be done, I accept the Respondent’s overwhelming evidence which indicated that there was no longer a need for anyone to perform the role of Project Coordinator because there were no major projects to coordinate. Indeed, the Respondent had not required anyone in the Applicant’s role during the entirety of her parental leave. Based on the evidence before me, I am satisfied that the Applicant’s position was no longer required to be performed by anyone because of changes in the operational requirements of its business.

[80] The Applicant complained about the Respondent’s failure to backfill her position as if their failure to do so contributed to her redundancy. I do not think that is the case. It seems, based on the evidence, that at the time the Applicant went on parental leave there was no need for anyone to step into her position. However, the Respondent did not then act to make her position redundant because it was hopeful that by the time the Applicant returned from parental leave, the capital projects would have restarted, and her position would therefore be needed. Unfortunately, that did not occur. The Respondent was simply doing the best it could in an unprecedented and unpredictable situation.

[81] Second, whether the Applicant’s employment was regulated by the Agreement or a Modern Award.  8 The Applicant’s role was not listed in Schedule 2 of the Agreement, nor was the Agreement listed as being applicable in her employment contract. While I accept that the Agreement being in her onboarding file may have led to some confusion, particularly when coupled with the Respondent’s Human Resources personnel referring the Applicant to it, neither of those occurrences could incorporate the Agreement into the Applicant’s employment where her contract did not do so. I am satisfied that her employment was not subject to the Agreement.

[82] Turning now to the application of the Clerks Award, I must determine whether the Applicant was “wholly or principally engaged in clerical work”. While I accept that her role did have clerical components to it – she organised meetings, typed meeting minutes and made corrections to same, ordered stationery, created and maintained project documentation, coordinated draft proposals and business cases– the evidence before me suggests that result the vast majority of the tasks that were being undertaken by the Applicant, even when she was performing the alternate duties after the COVID pandemic started, could not be considered clerical work. The other roles she performed ordinarily included maintaining computer based records management systems, assisting Mr Lance to manage internal and external stakeholders, identifying and extracting information from internal and external sources, compiling design review checklists, collating, dissecting, analysing project information to be presented to Mr Lance for review and included within the project documentation before submission to the University, preparing business case submission documentation and assisting in a number of projects. Then once COVID-19 struck, the Applicant became responsible for reviewing and considering changes with Queensland COVID Safe industry plans to be implemented in plan revisions, preparing visions of the Respondents COVID Safe management plans and applying the COVID Safe checklist, as well as editing document editing, resetting new templates and communicating to venues for review prior to Operations Manager sign-off for release and implementation in accordance with WHS.

[83] I am satisfied that a true and wholistic assessment of the nature of the Applicant’s work reveals that the principal purpose of the Applicant’s employment was not clerical work. 9 Accordingly, I am satisfied that she was not covered by the Clerks Award.

[84] The Applicant did not press her initial submission that the Miscellaneous Award and the Professional Employees Award applied to her employment, and the Respondent agreed that they did not. I need not consider their application in my reasons.

[85] For those reasons, I am not satisfied that the Applicant’s employment was covered by a modern Award or the Agreement. If, however, I am wrong in that conclusion, I will for completeness turn to whether the Respondent complied with any consultation obligations.

[86] Clause 10.7 of the Agreement provided for the consultation required where an employee was being made redundant in the following terms:

“10.7.1 Where the Employer has made a definite decision that the Employer no longer wishes the job an employee has been doing to be done by anyone and this is not due to the ordinary and customary turnover of labour and that decision may lead to termination of employment, the Employer shall consult the Employee directly affected and where relevant, a representative of their choosing.

10.7.2 The consultation will take place as soon as practicable after the decision has been made and shall cover the reasons for the proposed termination(s) and measures to avoid or minimise the termination(s) and/or their adverse effects on the Employee(s) concerned.”

[87] Contrary to the Applicant’s submission, I am satisfied that – if one is to consider the Agreement – it is this is clause one must consider with respect to the consultation required when an employee’s is being considered for redundancy.

[88] The Respondent’s Organisation Change Policy provides that as soon as practicable after a need for a significant change (including redundancy) is identified, the Respondent will provide in writing to the impacted employee all relevant information about the change, information about the expected effects of the change on the employee and support cope with the change effectively. It was accepted by the Respondent that the requirement that the information be given in writing was overlooked on this occasion.

[89] I am satisfied that based on the evidence given by Mr Pryde and Mr Toporek, that the Applicant was informed as soon as the decision was being contemplated about her position being made redundant. I understand that the Respondent had not embarked on those discussions when the Applicant first went on parental leave – despite the difficult financial position that the Respondent found itself in at that time – because there was some hope that by the time she was ready to return they would need someone to resume in her position. Unfortunately, that did not eventuate and so a review was conducted, and conversations had, about making her position redundant. I am satisfied that it was not until early September that Mr Pryde made the final decision to make the Applicant’s position redundant based on advice from Mr Toporek. The Applicant never formally made the application for an extension of parental leave. The consultation process began as early as 23 August 2021. While the Respondent did not comply with the requirement to put all the details in writing in accordance with the Operational Change Policy, I do accept that it substantially complied with the consultation requirement.

[90] On that basis, I am satisfied that even if the consultation requirements in the Agreement or the Respondent’s Organisational Change Policy applied, they were substantially met by the Respondent. The Applicant was informed of the possibility of her position being made redundant and the reasons why, offered an opportunity to respond and to consider the only other permanent positions presently available within the Respondent’s enterprise. It was not until after the Applicant rejected those roles – which all involved appreciated were not particularly appropriate for her – a decision was made to make her redundant.

[91] The fourth and final issue I must consider is whether it would have been reasonable in all the circumstances for the Applicant to be redeployed within the enterprise of the Respondent’s associated entities. 10

[92] The Applicant postulated that the Respondent should have formally identified any available positions with the University and given her the opportunity to transfer directly into them. The University had a number of vacant roles, though without more information I cannot finally determine whether the Applicant would have been suitable for them. Regardless, I am not satisfied that it would have been reasonable to require the Respondent to embark upon that process. The Respondent and the University have separate management and different strategic objectives. They have their own objectives, strategic plans and operations. The Respondent’s human resources department and recruitment function run entirely separately from its associated entities, and it has no influence with respect to personnel decisions. Thus, while the Respondent may support the overall purpose of the University, there is a lack of integration with respect to the management, control and operations of the entities.

[93] The Applicant is one employee, but the Respondent has many employees, as does the University. It would be unreasonable to expect each of the associated entities to consult for every employee whose role were being considered for a redundancy.
[94] The Applicant proved that she was able to search for roles within the Respondent’s associated entities. Indeed, she identified some that she thought might be appropriate. There was nothing from stopping her for applying for those roles and asking her current employer to support that application. However, I consider that to require the Respondent to formally offer to transfer her to a role within an entity over which it had no control would be unreasonable.

[95] Therefore, having regard to the authorities, 11 while it may not have been inappropriate for the Respondent to reach out to its associated entities, it would not have been reasonable to expect them to do so. In other words, having considered all the circumstances, I am not satisfied that it would have been reasonable for the Applicant to be redeployed – as part of the redundancy process – within the University or UQ Holdings and the Respondent was not obliged to canvass the University or UQ Holdings (or its other subsidiaries) for redeployment opportunities. She was, however, free to apply for those roles herself.

[96] For the reasons stated above, I am satisfied that the termination of the Applicant’s employment was a genuine redundancy in accordance with s.389 of the Act and that appropriate consultation was undertaken in relation to the redundancy. I find that that jurisdictional objection is upheld and that the Applicant was not unfairly dismissed.

[97] Accordingly, I order that the Applicant’s application be dismissed.”

Smith (Nee Kay) v UQ Sport Ltd (2022) FWC328 delivered 16 February 2022 per Lake DP