Unfair dismissal and the redeployment obligation

This is an interesting analysis of the obligation which lies upon an employer when considering the termination of an employee’s employment due to redundancy and the massive implications of the obligation upon the employer to consider redeployment options in the context of unfair dismissal  law.

 

“Consultation s 389(1)(b)

 

[75] It is not in dispute, as I have found, that Ms Piemyoosuk was not employed under a modern award or enterprise agreement. Accordingly, no statutory obligation to consult about the intended redundancy existed. As no obligation arose from an industrial instrument, Como did not breach a consultation obligation despite (for reasons discussed below) acting unfairly in not doing so.

 

Redeployment s 389(2)

 

[76]    Section 389(2), which operates as an exclusion to the meaning of genuine redundancy, requires consideration as to whether “it would have been reasonable in all the circumstances

 

for the person to be redeployed”. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.

 

[77]    In considering this provision it has recently been observed by the Full Federal Court that:

 

“Section 389(2), by contrast, requires that the possibility of redeployment should be assessed according to what “would have been” reasonable.  That necessarily envisages some analysis of the measures that an employer could have taken in order to redeploy an otherwise redundant employee.  In its proper context, “redeployed” can only refer to the prospect that an otherwise redundant employee might be taken from a position no longer required and deployed to the discharge of other tasks.  If, in a given case, there were measures that could have been taken and which, in all of the circumstances, could reasonably have led to redeployment, that will suffice to engage the exemption to the immunity.”

 

[78]    I now turn to consider the three redeployment options raised by Ms Piemyoosuk.

 

Temporary replacement of Ms Owen

 

[79]    Was it reasonable in all the circumstances for Ms Piemyoosuk to be redeployed to temporarily fill the forthcoming vacancy of ‘Human Resource Manager’ once Ms Owen went on parental leave?

 

[80]    Ms Piemyoosuk submits that it was reasonable because the role was a temporary one, covering a 9-month period of parental leave which was known to Como in advance and could be planned for. I agree that the timing of the vacancy, being proximate to the redundancy, weighs in favour of redeployment to this position being reasonable.

 

[81]    Ms Piemyoosuk submits that it was reasonable because the advertised vacancy had not been filled when the decision was made to make her redundant.

 

[82]    The external advertising of a vacancy is relevant to assessing the reasonableness of redeployment. As said by a Full Bench of the Commission in Ulan:

 

“Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s 385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard.”

 

 

[83]    I have found that Como advertised the vacancy on or about 22 December 2023. This was within the period between Como deciding to make Ms Piemyoosuk redundant and prior to notifying her. Although Como subsequently filled the position in late February 2024, the advertising of the vacancy, being proximate to the redundancy, weighs in favour of redeployment to Ms Owen’s position being reasonable.

 

[84]    I also take into account the location of the advertised vacancy. Ms Owen worked in an adjoining office in the same location where the position was being advertised.. Its proximate location to where Ms Piemyoosuk worked, and its being in the city she resided in, is a factor in favour of this redeployment having been reasonable.

 

[85]    Ms Piemyoosuk submits that such redeployment was reasonable because she had the experience and skills to temporarily undertake the responsibilities of the advertised role. Clearly, in considering the reasonableness of redeployment, an objective consideration is required of whether the redundant employee had the qualifications, skills and capacities to undertake the available role or could reasonably have been trained or retrained to acquire or refresh those skills. I take into account that Ms Owen’s role was that of a manager whereas Ms Piemyoosuk was a consultant. As a manager, Ms Owen undertook more senior responsibilities including national liaison with Mr Welfare and other managers.

 

[86]    However, Ms Piemyoosuk had twenty years of experience in human resource administration. This included working as a Human Resource Business Partner (eight years) and then a People and Culture Business Partner (four months) prior to working at Como. She was not simply working her way up into the profession as a junior human resource officer or consultant. Como knew this to be so; Ms Piemyoosuk’s resume had made her prior service and qualifications clear. She held a Master of Human Resource Management, a Certificate IV in Training and Assessment and a Bachelor of Tourism majoring in Human Resource Management.

 

[87]    I also take into account that there were no material performance concerns raised during Ms Piemyoosuk’s eighteen months with Como. On 7 February 2024 Ms Owen made it clear that the redundancy was not performance related. Mr Welfare repeated this in his evidence.

 

[88]    Objectively considered, I find that Ms Piemyoosuk had the qualifications, practical and industry experience, and sufficient familiarity with the role and the standard of performance over eighteen months at Como, to have reasonably been redeployed to this position for a temporary period. This finding weighs in favour of redeployment to Ms Owen’s position being reasonable.

 

[89]    I take into account that other persons, including external applicants, may have been better suited to replace Ms Owen than Ms Piemyoosuk. However, as noted by Hatcher VP (as he then was) in Huang v Forgacs Engineering Pty Limited:

 

“I do not consider, for the purpose of s 389(2), that an applicant has to demonstrate that he or she was the best possible person to fill an alternative position in order to satisfy the Commission that redeployment to that position would have been reasonable.”

 

 

[90]    Ms Piemyoosuk submits that it was reasonable because enabling her to temporarily fill the vacancy, with the knowledge that her permanent position as Human Resource Consultant was redundant, would have allowed her to plan future career development from a position of employment rather than unemployment.

 

[91]    As a general proposition, I agree that it is likely that adverse effects of a redundancy can be better mitigated if an employee is able to seek alternate employment and career development from a position of employment rather than unemployment. However, this is not true in all cases and business circumstances also matter. For example, unless time is made available to seek out fresh employment from an existing role, it may be easier to do so once not distracted by ongoing employment responsibilities provided appropriate notice and redundancy pay has been made.

 

[92]    I accept Ms Piemyoosuk’s evidence that earlier notice or a period of redeployment would have enabled her to plan ahead and minimise potential career damage and better manage the emotional shock of being unemployed. There is some force in this submission.

 

[93]    However, given the many vagaries associated with the search for alternate professional employment, this consideration weighs somewhat but only somewhat in favour of a finding that redeployment to Ms Owen’s position was reasonable.

 

[94]    In considering reasonableness, I also take into account that a gap in time may have occurred between the redundancy (7 February) and Ms Owen going on parental leave. However, I do not consider that it would have been unreasonable for Ms Piemyoosuk to have remained in the Human Resource Consultant role until the vacancy arose. The evidence is that even though Mr Welfare decided on Ms Piemyoosuk needing to be made redundant at the turn of the year, he did not act with urgency to notify her. She continued to work as a Human Resource Consultant for another month, oblivious to the decision that had been made.

 

[95]    I further take into account that there was no evidence of substance led by Como about the reasonableness or otherwise of redeployment options, other than the assertion by Mr Welfare that redeployment options had been considered and were then ruled out and generalised statements by Ms Owen.  This counts against a finding that redeployment was not reasonable because, as noted by a Full Bench of the Commission, “facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent” and such evidence “would usually include canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee”.  At its highest, Como’s evidence on this issue was perfunctory. In contrast, Ms Piemyoosuk advanced evidence of the vacancies she asserts she could reasonably have been redeployed to, the advertising of those vacancies,  her experience and qualifications, and other matters (such as location and residence) which are relevant to the question.

 

[96]    Considered overall, I conclude that it was reasonable in all the circumstances for Ms Piemyoosuk to be redeployed to temporarily fill the vacancy of Human Resource Manager once

Ms Owen went on parental leave. It would have been reasonable to do so at least for a period

 

of time to assess whether Ms Piemyoosuk’s experience and qualifications held up in this more senior role.

 

[97]    As redeployment to this position was reasonable, and as redeployment did not occur, s

389(2) provides that the dismissal “was not a case of genuine redundancy”.

 

[98]    This being so, I do not need to draw conclusions on the two further contentions by Ms Piemyoosuk that it would have been reasonable for her to be redeployed to the advertised specialist industrial relations position or the Human Resource Business Partner position in Brisbane.

 

[99]    It is appropriate however to briefly address these issues, given their materiality to the applicant’s case and Como’s response.

 

Human Resource Manager (Industrial Relations)

 

[100]  That the position of Human Resource Manager (Industrial Relations) did not exist at the date of redundancy but was advertised five days later does not preclude a finding that Ms Piemyoosuk could have been redeployed to this role. At the time of redundancy Como intended to create this position; indeed, I have found that the redundancy of the Human Resource Consultant position held by Ms Piemyoosuk occurred in large part to facilitate the creation this new position. As the Full Federal Court has stated:

 

“There is no reason to think that s 389(2) could not cover circumstances in which an employer dismisses employees on operational grounds where those employees could be redeployed to positions which are not currently available but are about to become available…”

 

[101]  Weighing heavily in considering whether redeployment to this position was reasonable is the fact that Como was seeking a person with specialist industrial relations skills. Ms Piemyoosuk was not an industrial relations specialist.

 

[102]  Somewhat diluting the weight of Como’s submission however is the fact that this position, as it was advertised, was not solely that of an industrial relations specialist. Rather, Como advertised for a human resource manager with industrial relations capabilities and experience as an “essential” requirement amongst other human resource competencies.

 

[103]  Ms Piemyoosuk had some industrial relations skills and experience. She had undertaken duties of this type prior to working for Como, had occasionally been tasked by Ms Owen to do lower-level work of this type whilst at Como, and referred expressly to those skills in her resume when employed by Como.

 

[104]  In other words, the role as advertised was not necessarily or entirely beyond Ms Piemyoosuk’s range of apparent skills and competencies. It was possible that with a period of training and refresh, Ms Piemyoosuk could have been redeployed to this newly created role.

 

 

[105]  Section 389(2) does not establish an impediment to a finding that redeployment was reasonable in all the circumstances simply because it may have been required or desirable for Como to assist Ms Piemyoosuk to retrain in, refresh or supplement her industrial relations knowledge and skills. It was said by a Full Bench of the Commission in Ulan that a job will be suitable if it can be performed “to the required standard either immediately or within a reasonable period of retraining”.  On this same issue the Full Federal Court has observed:

 

“If, in a given case, there is a position to which an otherwise redundant employee might be redeployed; but for which he or she is unqualified for want of appropriate training, the possibility that he or she might undertake that training (and, thereby, obtain that qualification) is a circumstance that is apt to inform whether the alternative of dismissal would qualify as “a case of genuine redundancy”. The fact that there might be some barrier that makes redeployment more difficult or more involved than it otherwise could be – whether that barrier takes the form of a need for retraining or, as here, the pre-existing occupation of roles by contractors – is not to the point. Whether redeployment “would have been reasonable in all [of] the circumstances” requires analysis of what an employer could have done apart from dismissing the employee.”

 

[106]  As I am not required to make a finding on this question, I do not definitively do so. Whilst it is arguable that Ms Piemyoosuk could have, with some retraining, fulfilled large elements of the role, it does not necessarily follow that it would have been reasonable for Como to have redeployed her to this newly created position on that contingent basis. Ms Owen’s evidence was that she had hoped that she could task Ms Piemyoosuk with more industrial relations work but did not feel as though Ms Piemyoosuk had the depth of necessary industrial relations skills.

 

[107]  That Como was seeking, for valid operational reasons, to introduce specialist industrial relations competency into their human resource team and to do so promptly continues to weigh against a finding that Ms Piemyoosuk should reasonably have been redeployed to that role.

 

Human Resource Business Partner (Brisbane)

 

[108]  Consistent with my findings (above) that Ms Piemyoosuk had capability to undertake managerial human resource duties, the advertising and timing of the Queensland role was proximate to her redundancy.

 

[109]  I reject Como’s submission that it was not reasonable because Ms Piemyoosuk was a resident of Adelaide whereas the role was based in Brisbane. Como had no reasonable basis to form the view that Ms Piemyoosuk would not have contemplated a move to Queensland in order to maintain her career in the profession and within the company, in lieu of being made redundant.

 

 

[110]  Ms Piemyoosuk’s evidence was that she would have given consideration to a relocation. I accept that evidence. It was presumptuous and unfair of  Como to consider otherwise and not consult her on that option. As has been noted by Commissioner Asbury (as she then was):

 

“The right to have information on all options relevant to a redundancy is a significant one. An employee may well decide that it is preferable to seek other employment while she or she is employed, and to take advantage of assistance and support offered…”

 

[111]  As I am not required to make a finding on this question, I do not definitively do so.

However, it is tolerably arguable that it would have been reasonable to have given Ms Piemyoosuk the option of relocating to Queensland to be redeployed to this advertised position.

 

Conclusion on genuine redundancy

 

[112]  Although the redundancy was for operational reasons, as redeployment for a temporary period to the position held by Ms Owen was reasonable, and as that redeployment did not occur, the dismissal was not a case of genuine redundancy (s 389(2)).”

 

Piemyoosuk v Como Glasshouse No2 Pty Ltd  [2024] FWC 1550  delivered 14 June 2024 per Anderson DP