1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Lynda Pykett
v
Technical and Further Education Commission T/A TAFE NSW
(U2012/14988)
COMMISSIONER MCKENNA SYDNEY, 12 AUGUST 2013
Application for unfair dismissal remedy.
[1] Lynda Pykett (“the applicant”) has lodged an application pursuant to s.394 of the Fair
Work Act 2009 (“the Act”) seeking an unfair dismissal remedy concerning her termination of
employment by the Technical and Further Education Commission T/A TAFE NSW (“the
respondent”).
[2] The applicant was employed initially by the respondent in October 1980. Although the
applicant had a variety of positions over her more than three decades of service with the
respondent, her most recent substantive position was as a Technical Officer (Scientific) Grade
2 within one of the respondent’s colleges in suburban Sydney, namely, Meadowbank College.
The applicant’s employment terminated on 26 October 2012 on the basis of a forcible
redundancy.
[3] The applicant and the respondent are in dispute as to whether the termination of
employment was, within the meaning of the Act, a “genuine redundancy”. In this regard, the
relevant statutory provisions as to the meaning of an “unfair dismissal” read:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code:
see section 388.”
[2013] FWC 4982
DECISION
E AUSTRALIA FairWork Commission
[2013] FWC 4982
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[4] As to a “genuine redundancy” as referred to in s.385(d) of the Act, s.389 provides the
following meaning:
“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.”
[5] The main focus of the case involved a consideration of whether the dismissal was a
genuine redundancy and/or an unfair dismissal, considered particularly in the context of
whether the respondent no longer required the applicant’s job to be performed by anyone
because of changes in the operational requirements of its enterprise (s.389(1)(a)) and whether
it would have been reasonable in all the circumstances for the applicant to be redeployed
within the respondent’s enterprise (s.389(2)(a)). In part, the consideration of s.389(2)(a)
involved an examination of the Managing Excess Employees policy used by the respondent,
which also references the Case Management and Redeployment Guidelines policy used by the
respondent. These are directives of the NSW Government, which were applied as policies by
the respondent in relation to the termination of the applicant’s employment.
[6] There was no identification in the proceedings of any modern award (or enterprise
agreement) consultation obligations, although it seems, if there was a modern award
underpinning the employment relationship between the applicant and the respondent, it may
have been the Educational Services (Post-Secondary Education) Award 2010. In any event, at
least as I understood it, the applicant’s case was not primarily advanced on the basis there had
been any non-compliance with consultation obligations within the meaning of s.389(1)(b) of
the Act. The respondent’s case otherwise identified the history of developments concerning an
organisational review, matters related to discussions with the applicant’s union concerning the
review as it affected the applicant, and the like.
[7] The applicant had understood from certain correspondence sent to her by the
respondent that she would be considered for positions beyond the respondent’s own
enterprise, that is, within the broader NSW Government service. Section 389(2)(b) does not,
however, relevantly arise for consideration, as there was no “associated entity” of the
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employer within the meaning of s.50AAA of the Corporations Act 2001, being the definition
provided in s.12 of the Act.
[8] Counsel for the applicant, Mr M Gibian, submitted as follows by way of legislative
background to employment-related matters concerning the respondent:
“3. The TAFE Commission is established by s.4 of the Technical and Further
Commission Act 1900 (NSW) and constituted as a body corporate under that section.
Until December 2011, employees working within TAFE were employed directly by
the Government of NSW and, accordingly, fell outside the coverage of the Fair Work
Act. On and from that date, the employment of employees working within TAFE was
transferred to the TAFE Commission by operation of the Technical and Further
Education Commission Amendment (Staff Employment) Act 2011 (NSW).”
[9] Counsel for the respondent, Mr M Easton, also gave the following background to
clarify the basis on which the NSW Government’s Managing Excess Employees policy was
used by the respondent at the time of the applicant’s termination of employment:
“2. On 1 August 2011, by Ministerial Memorandum M2011-11, the NSW Government
issued a Directive that a new Managing Excess Employees Policy (‘the Policy’) was to
apply.
3. The Directive states that it is mandatory for NSW Public Service Departments,
NSW Public Service Other Agencies and NSW Non-Public Service Divisions and
Special Employment Divisions.
4. Clause 3.1 of the Policy provides:
‘Coverage
This policy applies to permanent employees in the NSW Government Service,
identified in the Public Sector Employment and Management Act 2002 (‘PSEM
Act’) as:
Public Service Departments
Non-Public Service Divisions
Special Employment Divisions
Public Service Departments are staff employed in departments and agencies
listed in Schedule 1, Part 1 of the PSEM Act.
Non-Public Service Divisions are staff employed in divisions assigned to the
statutory bodies listed in Schedule 1, Part 2 of the PSEM Act.
Special Employment Divisions are staff employed in divisions assigned to the
statutory bodies listed in Schedule 1, Part 3 of the PSEM Act.
Agencies not covered by this policy include State Owned Corporations, the
Health Service, the Teaching Service, the NSW Police Force (police officers),
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Fire and Rescue NSW (fire fighters), Railcorp, Sydney Ferries, the Country
Rail Infrastructure Authority and the Transport Construction Authority.’
5. The Directive contains a disclaimer to the effect that it may be ‘varied, withdrawn
or replaced at any time without notice. This Directive is not intended to legally bind
the New South Wales Government, the Crown in right of New South Wales, its
officers, employees or agents or have contractual effect or form part of any legally
enforceable employment contract of any public sector employee.’
6. At the time the Policy was promulgated, the TAFE Commission did not employ any
staff. The Applicant was an officer of the Department of Education and Communities,
employed under the Public Sector Employment and Management Act 2002, and was
subject to the policy.
7. On 1 December 2011, the Technical and Further Education Commission Act 1900
(‘TAFE Act’) was amended by [the] Technical and Further Education Commission
Amendment (Staff Employment) Act 2011 (‘TAFE Amendment Act’) to the effect the
TAFE Commission, being a statutory corporation, directly employed its staff. As a
consequence, its staff were no longer employed in the NSW Government Service, and
the policy did not expressly apply by operation of clause 3.1. Whilst the policy did not
expressly apply, it was not expressly excluded from applying.
8. The TAFE Amendment Act inserted Schedule 4 into the TAFE Act. Clause 15 of
Schedule 4 of the TAFE Act preserves certain employee entitlements during the
transitional period (12 months beginning on the commencement date of the TAFE
Amendment Act, namely 1 December 2011).
9. Clause 15 refers to particular conditions of employment and does not refer to the
Managing Excess Employees Policy. However, on introducing the Technical and
Further Education Commission Amendment (Staff Employment) Bill 2011 into
Parliament on 11 October 2011, the Minister for Education, Adrian Piccoli MP made a
statement of the [NSW] government’s intention that the Policy would apply to TAFE
staff, stating:
‘The bill establishes a 12-month transition period, which is contained in part 5
of schedule 4 to the bill. During this period, the TAFE Commission will
endeavour to negotiate one or more enterprise agreements to cover its staff that
incorporate, where appropriate, the existing award provisions. I also make it
clear that the Government’s policies relating to wages and the
management of excess employees will continue to apply to TAFE NSW’
(emphasis [in original submission]).
10. On 22 November 2012, the TAFE Commission of NSW Administrative, Support
and Related Employees Enterprise Agreement 2012 became operative. [The
applicant’s] employment would be pursuant to this Agreement if she were still
employed. Clause 8.3 of that Enterprise Agreement states ‘Employees affected by
workplace change will be managed in accordance with the NSW Government's
Managing Excess Employees Policy, as amended from time to time.’
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11. [The applicant] was declared excess on 31 May 2012, and her employment with
the TAFE Commission terminated on 26 October 2012.
12. During the period from May until October 2012, the Policy was not mandatory by
the terms of the policy, nor was it an entitlement legally enforceable by [the applicant],
but the Minister’s stated intention was that the policy would continue to apply.”
[10] The respondent determined to apply as its policy the Managing Excess Employees
policy concerning the applicant’s termination of employment (presumably against the
background of the comments made by the NSW Minister for Education) rather than, around
the date of the applicant’s termination of employment, anything operating by way of, for
example, statute-based transitional arrangements.
[11] It may be noted that, in November 2012, not long after the termination of the
applicant’s employment, an enterprise agreement titled the TAFE Commission of NSW
Administrative, Support and Related Employees Enterprise Agreement 2012 ([2012] FWAA
9724) (“the Agreement”) was approved under the Act. Clause 8.3 of the Agreement provides
that employees affected by workplace change will be managed in accordance with the NSW
Government’s Managing Excess Employees policy, as amended from time to time. Thus, the
Managing Excess Employees policy is material apparently now incorporated by reference in
the Agreement. In relation to this application, however, Managing Excess Employees had no
status other than that of a policy applied by the respondent around the time of the applicant’s
termination of employment. (I observe in passing that notwithstanding the wording of cl.8.3
of the Agreement contemplating variation to redundancy arrangements through changes made
by the NSW Government to its Managing Excess Employees policy, it is unclear to me the
basis on which an enterprise agreement made under the Act dealing with matters including
redundancy rights and obligations concerning the respondent and its employees could be,
quoting the words of the disclaimer in the Directive, “varied, withdrawn or replaced at any
time without notice”.)
Consideration
Section 389(1)(a) - whether the respondent no longer required the applicant’s job to be
performed by anyone because of changes in the operational requirements of its enterprise.
[12] The parties respectively adduced evidence about developments concerning the
applicant’s Technical Officer job and operations at the college where the applicant was
formerly employed and at other colleges. That evidence included descriptions about the work
undertaken by the applicant and other employees, as well as evidence about the day-to-day
changes that occurred in relation to the work undertaken by the applicant in her role and in the
roles of other employees. The evidence also included description of some of the operational
changes at the college. For example, the college formerly provided NSW Tertiary Preparation
Certificate and Higher School Certificate courses. As these courses are no longer offered by
the college, there was a corresponding reduction in the need for specialised science facilities;
and the college’s last two laboratories are now being decommissioned. The college was
formerly a major provider of training for enrolled nurses under contract with NSW Health, but
in the period 2007-2012 nursing enrolments decreased by more than 75 per cent. As a result
of these types of changes, there was a consequential reduction in the level of technical officer
support required at the college. In 2005, the college employed four full-time Technical Officer
(Scientific) positions and one temporary position funded by the NSW Health. By early 2012,
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only two employees remained employed at the college in the position of Technical Officer
(Scientific); the Technical Officers positions in the nursing area were the subject of vacancy
by natural attrition.
[13] By letter dated 15 March 2012, the respondent advised the applicant the outcome of an
organisational review that had been conducted was there was a requirement only for one
Technical Officer position to service the available classes. That is, the respondent determined
it required the Technical Officer work to be performed by only one person rather than two.
The letter further advised that as there were more employees who were matched to the
position than available positions, there would be a “pool assessment process” to determine
which employee would be appointed to the position. The appointment was to be determined
on the basis of a merit-based selection process. The applicant was advised that if she was not
directly appointed to the position, she would be given “excess employee” status and be
subject to the Managing Excess Employees policy.
[14] Following the pool selection process, the respondent advised the applicant she had not
been selected as the preferred candidate for the Technical Officer position and, in
consequence, that would become an excess employee from 31 May 2012. The applicant was
informed that, given her excess employee status, she was required to advise within 14 days as
to two options put to her by the respondent. The first was to accept the option of voluntary
redundancy. If the applicant accepted the first option, the voluntary redundancy payments
specified in cl.5.2 of the Managing Excess Employees policy would apply on termination of
employment. The second option was to remain in employment and to seek redeployment
during a retention period of three months. The applicant chose the second option of seeking
redeployment. During the retention period, which was extended for reasons related to the
applicant’s personal exigencies preceding and related to a family bereavement, the applicant
was not, for the reasons outlined in the evidence in the respondent’s case, redeployed by the
respondent into an alternative position. By letter dated 11 October 2012, the respondent then
informed the applicant she would be made forcibly redundant on 26 October 2012. The
redundancy payments contained in cl.7.1 of the Managing Excess Employees policy that
apply in the case of an employee who has refused an offer of voluntary redundancy or who is
made forcibly redundant (which are inferior to the payments made in the case of a voluntary
redundancy) were paid to the applicant upon termination of employment.
[15] Despite the evidence, submissions and authorities to which reference was made in the
case advanced for the applicant, I am satisfied the respondent no longer required the
applicant’s job to be performed by anyone because of changes in the operational requirements
of its enterprise. In so concluding, I have considered those parts of the applicant’s case which
were to the effect that, for instance, aspects of the applicant’s former job, as a collection of
functions, duties and responsibilities, necessarily remained to be performed by someone
within the college; and the post-organisational review Technical Officer position was
essentially the applicant’s old job (and that, properly considered, it was the other jobs which
were the redundant positions, rather than the applicant’s job). Put another way, the
submissions for the applicant were to the effect the respondent had taken the applicant’s job
and given it to someone else, namely, the other Technical Officer who was the preferred
candidate in the pool selection process. I have also considered those parts of the applicant’s
case which were to the effect the applicant’s former job was substantially now being
undertaken by the person who was the preferred candidate following the pool assessment
process.
[2013] FWC 4982
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[16] While I accept that aspects of the job formerly undertaken by the applicant were
subsumed in the position created following the organisational review, the new position had a
blended configuration of tasks the applicant formerly performed as well as other
responsibilities. While the applicant’s case seemed to be advanced, in part, on the premise
that, considering all the circumstances, the applicant would have been the more appropriate
person to be the preferred candidate for appointment to the new position, the merit-based
assessment adopted by the respondent in the pool selection process is not relevantly under
consideration in these proceedings.
[17] In short, I am satisfied, and so conclude, the respondent no longer required the
applicant’s job (at least as it was constituted before the organisational review) to be performed
by anyone because of changes in the operational requirements of its enterprise.
Section 389(2)(a) - whether it would have been reasonable in all the circumstances for the
applicant to be redeployed within the respondent’s enterprise.
[18] As I have noted earlier, the respondent applied the NSW Government’s directive titled
Managing Excess Employees as the policy it applied to managing the applicant as an excess
employee. As the applicant did not accept the offer of voluntary redundancy, the
redeployment provisions of the Managing Excess Employees policy came into operation. In
short, the redeployment option was described as including the following features in the
respondent’s letter to the applicant of 31 May 2012:
a retention period of three months;
priority consideration for redeployment to suitable positions within the NSW
Government Service;
assistance in pursuing redeployment, including career transition services; and
a case manager.
[19] The respondent advised the applicant that if she had not been appointed to a permanent
position by the conclusion of the retention period, the respondent would make her forcibly
redundant and she would receive the redundancy payments specified in the Managing Excess
Employees policy. The respondent further advised the applicant she could choose to accept a
temporary secondment or assignment under ss.86, 86A or 88 of the Public Sector
Employment and Management Act 2002 (NSW). Under these arrangements, the employment
would continue for the duration of the secondment or assignment, with the forcible
redundancy occurring at the conclusion of the temporary secondment or assignment if she had
not otherwise been redeployed. (In passing, it is not immediately apparent to me how the
external secondment-type arrangements under these provisions of the Public Sector
Employment and Management Act would have had application to applicant as she was, in the
relevant time-period, by then no longer an officer/employee within the meaning of that
legislation.) The respondent also advised the applicant of the salary maintenance
arrangements that would apply for three months if she chose to be matched to positions at
lower grades. In addition to the covering letter, the respondent also enclosed a number of
documents, including the Managing Excess Employees policy and the Case Management and
Redeployment Guidelines policy.
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[20] The applicant’s submissions were to the effect the redeployment endeavours by the
respondent were policy-constrained and perfunctory or inadequate in circumstances where, it
was submitted, the onus would generally fall on an employer to initiate the identification of
reasonable employment opportunities: Cameron v Transfield Services (Aust) Pty Ltd [2012]
3799 at [66]-[72]; Aldred v J Hutchinson Pty Ltd [2012] FWA 8289 at [36]-[47]. In this
regard, and among other matters, it was put in the applicant’s submissions that:
Aside from providing to the applicant lists of advertised positions, the respondent
made no attempts to identify suitable redeployment opportunities for the applicant.
The applicant essentially was placed in a position of having to herself seek
appropriate positions into which she could be redeployed.
The applicant identified a number of positions into which she reasonably could have
been redeployed, including the positions of Operations Manager and Foreman of
Class Servicing. The respondent refused to redeploy the applicant into these
positions despite the applicant having the skills and experience to perform those
roles either immediately or, at least, with a reasonable period of training.
An analysis of the organisational charts and occupancy reports of the respondent
demonstrates a number of vacant positions, including Technical Officer (Scientific)
positions at Petersham College and Ultimo College. In those circumstances the
Commission could be satisfied that there were positions into which the applicant
could be redeployed.
Shortly prior to the applicant being dismissed, the applicant identified a position as
Senior Technical Officer (Scientific) at the Sydney College that was advertised. The
respondent refused to redeploy the applicant into that position and required her to
participate in a competitive selection process for the position. The applicant's
employment was terminated notwithstanding the selection process was incomplete.
The respondent’s letter of 31 May 2012 indicated the applicant could seek
"redeployment in the public sector" (i.e. not limited to the respondent’s enterprise).
However, no attempt appears to have been made by the respondent to explore
whether the applicant could be redeployed into a position across the broader NSW
public sector. Given the size of the NSW public sector, it is more probable than not
that suitable redeployment opportunities would have been identified had that been
done.
[21] The applicant’s submissions referred also to the difficulties caused by the applicant’s
personal exigencies during the retention period, which resulted in the applicant taking leave
and thereby interrupting her capacity to seek redeployment at a critical time. The submissions
also noted the applicant had extensive accrued leave entitlements (including 274.75 days of
extended leave) which she could have accessed and remained available for redeployment
during this leave if her employment had not been terminated.
[22] The respondent’s submissions drew attention to a range of matters, including events
well-preceding the termination of the applicant’s employment. Some of the matters noted in
the respondent’s submissions included the following:
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The respondent was involved in significant and extensive steps to attempt to remove
or lessen the likelihood of, and consequences of, redundancy resulting from the
organisational review of the college. These steps included discussions with,
corresponding with, and the provision of information to, the applicant’s union.
The applicant was afforded the benefits of the Managing Excess Employees policy,
including priority access to redeployment opportunities.
The respondent’s case manager reviewed the daily vacancy reports in order to
identify potential positions within the parameters set by the applicant, and provided
daily vacancy reports to the applicant.
Apart from its own enquiries, the respondent investigated the avenues for
redeployment raised by the applicant.
The respondent arranged vocational training for the applicant.
The respondent extended the retention period.
The respondent’s case manager contacted other colleges on three separate occasions
ascertain if there were suitable vacancies for the applicant.
[23] Although the submissions in the applicant’s case were somewhat critical of the
“efforts” by the applicant’s case manager to assist the applicant, the applicant’s submissions
appeared to concede the case manager applied the policies he was bound to apply. In this
regard, I note, nonetheless, there was unresolved dispute on the evidence about the applicant’s
preparedness to consider certain types of roles during the retention period. Despite
suggestions in the applicant’s submissions, it seems to me the case manager reasonably
discharged his responsibilities under the proper application of the policies he was duty-bound
to apply by his employer and that, more particularly as time started to run against the
applicant during the retention period, she became more prepared to consider any number of
roles to continue in employment with the respondent. As the applicant’s evidence noted: “I
want a job with TAFE”, and she would take a temporary position, a part-time position and
would consider a reduction in pay at several colleges she nominated.
[24] The submissions by counsel for the applicant contended that just because an employer
(through its officers) follows a policy does not mean it has acted reasonably; and, indeed, the
reverse may be the case. Counsel for the applicant continued that the application of the
Managing Excess Employees policy produced a circumstance that so circumscribed the types
of opportunities to which consideration could have been given by way of redeployment as to
narrow them to zero, notwithstanding the work that otherwise could have been undertaken by
the applicant within the respondent’s enterprise. The Managing Excess Employees policy
contemplated redeployment only to an advertised, permanent vacancy - albeit there were other
“vacant” positions, in some cases, positions that had been vacant for years.
[25] Counsel for the respondent submitted the Act requires the Commission to consider
whether it was reasonable for the applicant to be redeployed within the respondent’s
enterprise, not whether the respondent acted reasonably about redeployment. Counsel for the
respondent further submitted the difference between these two tests is significant. That is, an
employer might act reasonably in relation to redeployment though the Commission later finds
it would have been reasonable to redeploy the applicant in all the circumstances. Conversely,
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an employer might act entirely unreasonably with respect to redeployment in circumstances
where it nonetheless would not have been reasonable to redeploy the employee. In the second
example, the submissions continued, the unreasonableness of an employer’s conduct does not
change the fact that it would not have been reasonable to redeploy the employee. The
statutory test, it was submitted, necessarily requires the identification of the circumstances by
which the employee could have and should have been redeployed; and the essential part of the
concept of redeployment under s.389(2)(a) is redeployment to another job: Ulan Coal Mines
Limited v Honeysett and Others [2010] FWAFB 7578. Further, the Commission must identify
a particular position into which the person could be redeployed in order to assess the
reasonableness of that position, with the onus as to the identification of a position falling upon
the applicant. The onus does not fall upon the respondent to prove there was no position to
which the applicant could have been redeployed. Counsel for the respondent otherwise
submitted the Managing Excess Employees policy as it concerned redeployment was
appropriate and reasonable for public sector-type employment particularly.
[26] Counsel for the applicant submitted redeployment is about finding other work for an
employee to perform; it has nothing to do with whether there is an ongoing, substantive
vacancy. The question to be considered, it was submitted, was whether it would have been
reasonable to redeploy the applicant into some other work, rather than to consider
redeployment only to an advertised, permanent vacancy. Counsel for the applicant submitted
an employer cannot cloak itself or foreclose any judgment of reasonableness by reliance on
the adoption of policy.
[27] Counsel for the applicant further submitted there was no chance the applicant would
have been redeployed during the retention period because, unbeknownst to the applicant at the
time, a decision had been made by the respondent to freeze appointments to certain positions
that would have been relevant to the applicant’s potential redeployment. It would, the
submissions continued, have been reasonable for the respondent to have considered even
temporary work that may have been available in order to continue the applicant’s employment
for as long as possible. Had that occurred, the applicant would then have had the opportunity
to continue to look for other work and other positions while remaining employed by the
respondent. That type of temporary priority redeployment option was not, however, explored
in relation to the applicant because of the restrictions in the Managing Excess Employees
policy. In this respect, counsel for the applicant drew attention to evidence, for example, of
labour hire casuals being used at another college to perform work of a type the applicant
could have undertaken and evidence of positions at the Ultimo College which were vacant.
Counsel for the applicant submitted his client was at a disadvantage in examining the
materials about redeployment options as all relevant matters were not within the knowledge of
his client, other than, for instance, that certain positions exist and are being filled, at least in
part, by agency casuals.
[28] Counsel for the applicant emphasised the Managing Excess Employees policy limited
the scope of redeployment solely to the notion of redeployment as described in that policy,
that is, to an advertised, permanent vacancy. However, redeployment, as used in the Act, is
not referable or limited to definitions that are, or were, applicable to NSW public sector
employment. Redeployment within the meaning of the Act is a broad term, meaning finding
other work for an employee to do, rather than just redeployment/appointment to an advertised,
permanent vacancy. Counsel for the applicant submitted that if redeployment, more broadly
understood, had been pursued appropriately and the applicant had been given consideration
for redeployment other than to an advertised, permanent vacancy she would have, or may
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have, remained in employment for a substantial period of time. In this regard, the submissions
noted the applicant’s age, the fact the applicant has spent most of her working life employed
by the respondent, the applicant’s wish to maximise the period of employment with the
respondent, and the unlikelihood of the applicant finding alternative employment.
Conclusion
[29] I accept the evidence and submissions in the respondent’s case as to the proposition
the respondent no longer required the applicant’s job (as least at it was constituted prior to the
organisational review) to be performed by anyone because of changes in the operational
requirements of the respondent’s enterprise.
[30] While I have accepted the respondent’s case as to s.389(1)(a) of the Act, it seems to
me that, as to s.389(2)(a), the application of the Managing Excess Employees policy meant the
examination of redeployment options within the respondent’s enterprise was artificially and
unreasonably constrained by an abstract, policy-specified meaning of redeployment. Section
389(2) of the Act provides that a person’s dismissal is not a case of genuine redundancy if it
would have been reasonable in all the circumstances for the person to be redeployed within
the employer’s enterprise. “Redeployed” within the meaning of s.389(2) of the Act is to be
given its ordinary meaning. There is no proper basis to read-down the meaning of
redeployment or, for example, to read into that meaning a restriction that redeployment means
being redeployed only to an advertised, permanent vacancy by the application by the
respondent of the Managing Excess Employees policy.
[31] The exploration by the respondent of Managing Excess Employees-defined
redeployment for the applicant solely or principally contemplated only redeployment into an
advertised, permanent vacancy and in the context of the “matching” processes such as salary
range. However, there may well have been other reasonable redeployment options available
within the respondent’s enterprise that simply were not considered due to the constraints in
the Managing Excess Employees policy concerning positions into which the applicant could
be considered for redeployment, such as to be redeployed to undertake the work performed by
agency casuals. It is more likely than not that if the consideration of redeployment options had
been more broadly approached by the respondent beyond only matched advertised, permanent
vacancies, other reasonable redeployment options would have emerged within the
respondent’s enterprise and appropriately been considered. If the substantive occupant of a
position was expected to be absent from that role for due to, for instance, six months of
parental leave, it would seem reasonable to expect that a time-limited redeployment into that
role might be considered both as appropriate for consideration and reasonable in all the
circumstances in the case of an excess employee who wished to remain employed by the
respondent so he or she could continue to seek appointment to a more secure, substantive
position within the respondent’s enterprise. In this regard, I take notice of the fact that
superannuation entitlements for employees in NSW public sector-type schemes, for example,
can be substantially affected depending on the superannuant’s age and the timing of date of
the termination of employment.
[32] The examination of the full range of actual redeployment options within the
respondent’s enterprise that otherwise may have arisen for consideration was not only
artificially or unreasonably constrained by the abstract of the Managing Excess Employees-
specified meaning of redeployment, there was no real prospect the applicant would have been
redeployed to an advertised, permanent vacancy during her retention period because the
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respondent had a freeze on filling certain permanent positions at that time, and other matters
were put on hold as a result of disputation between the applicant’s union and the respondent.
As such, it appears that any possibility of redeployment, even within the confined meaning of
redeployment as contemplated in the Managing Excess Employees policy, in the
circumstances of that freeze, was no more than a theoretical construct as it concerned the
applicant and certain positions. When the applicant was declared to be an excess employee,
she was given the option of accepting a voluntary redundancy package, being a package that
contains significantly better financial arrangements than the scale of payments that applies in
the case of a forcible redundancy. Instead of accepting the voluntary redundancy package, the
applicant opted to try to be redeployed. However, there was, it appears, no real possibility that
the applicant could have been redeployed, within the meaning of the Managing Excess
Employees policy, because of the freeze on certain permanent appointments. The existence of
the freeze was not known to the applicant when she opted to seek redeployment after she was
declared an excess employee. The applicant’s redundancy payments in the forcible
redundancy were inferior to those that would have applied if the applicant had accepted
voluntary redundancy, for example, on the basis of informed decision-making about the
freeze. On one view of it, the respondent may have misled the applicant through a lack of
disclosure about the freeze on certain permanent appointments relevant to her potential
redeployment at the time when the applicant determined not to accept the voluntary
redundancy package.
[33] The respondent has objected to the application on the basis the termination of the
applicant’s employment was a “genuine redundancy”. It would, however, in my view, have
been reasonable in all the circumstances for the respondent to redeploy or to consider
redeploying the applicant within its enterprise other than to an advertised, permanent vacancy.
I do not consider it necessary in the circumstances of this case to determine which position,
specifically, would have been appropriate for redeployment of the applicant. That the
respondent did not allow for any consideration of the redeployment of the applicant within its
enterprise other than under the artificial confines of the Managing Excess Employees-
conditioned understanding of “redeployment”, in and of itself, leads me to the conclusion the
dismissal was not a genuine redundancy within the meaning of the Act.
[34] As I am not satisfied the application should be dismissed on the basis the termination
of the applicant’s employment was a genuine redundancy, I turn now to the matters that,
pursuant to s.387 of the Act, must be taken into account in considering whether the dismissal
was harsh, unjust or unreasonable: (a) the dismissal was not related to the applicant’s capacity
or conduct (including its effect on the safety and welfare of other employees), and so the
question of whether there was a valid reason for the dismissal related to such matters does not
relevantly arise; (b) the respondent notified the applicant that the termination of employment
was a forcible redundancy; (c) there were no reasons related to the capacity or conduct of the
applicant that relevantly arise in relation to an opportunity to respond; (d) there was no
evidence of any unreasonable refusal by the respondent to allow the applicant to have a
support person to assist in discussions; (e) there was no unsatisfactory performance by the
applicant, so consideration of warnings does not arise; (f) the size of the respondent’s
enterprise did not have an impact on the procedures followed other than, perhaps, in the sense
that it applied a policy having general application to its many employees; and (g) the
respondent has in-house human resource management specialists or expertise.
[35] The applicant was a veteran employee of the respondent, which is a sizeable employer.
The application of the Managing Excess Employees policy meant the consideration of
[2013] FWC 4982
13
redeployment of the applicant was unreasonably and unnecessarily narrowed. I am satisfied it
was harsh, unjust and unreasonable to dismiss the applicant without a full and proper
exploration of actual redeployment opportunities that may have been suitable and available,
including, but not limited to, for example, work being undertaken by agency casuals. The
respondent’s submissions suggested it would not be appropriate to redeploy an excess
employee to undertake this type of work given, for example, the job insecurity as opposed to a
redeployment resulting in appointment to a permanent vacant position. However, the
respondent cannot contend the applicant would not have wished to be considered for this type
of work, even if it did not have the security of appointment to a permanent position; the
applicant was anxious to continue to be employed by the respondent so she could continue her
endeavours to be otherwise redeployed. It is not an answer to this application for an unfair
dismissal remedy for the respondent to rely on the application of the Managing Excess
Employees policy and its artificially constrained meaning of redeployment. The policy
blinkered the consideration of what could be considered as redeployment options for the
applicant as an excess employee and, as the applicant’s submissions noted, the existence of
redeployment opportunities other than advertised, permanent vacancies was better within the
knowledge of the respondent rather than the applicant. For example, the applicant would not
have been informed of, nor given any priority consideration in relation to, redeployment into a
position that was vacant because the substantive occupant of the position was absent on
parental leave or other form of extended leave. In any event, even on the application of the
Managing Excess Employees policy, it appears the applicant could not have been redeployed
to other suitable positions during her retention period because of the respondent’s freeze on
certain permanent appointments that could have been relevant to her potential redeployment, a
matter that was not known to the applicant when she opted (in what would prove to be her
significant financial detriment in terms of the redundancy payments) to seek redeployment.
[36] Given my conclusions, I am satisfied it would be appropriate for the applicant to have
an unfair dismissal remedy in her favour. Reinstatement is the primary remedy sought by the
applicant or, in the alternative, an order for compensation. Given some of the potential
complexities brought about by matters including the factual matrix of the applicant’s excess
employee status at the time immediately preceding the termination of employment and the
redundancy payments paid to the applicant, I propose to allow the parties the opportunity to
address further on remedy should they so wish.
[37] The matter will be listed for mention at 9.30am on Friday, 16 August 2013 for the
consideration of any further programming.
COMMISSIONER
[2013] FWC 4982
14
Appearances:
M. Gibian of counsel for the applicant.
M. Easton of counsel for the respondent.
Hearing details:
2013.
Sydney:
28 May
17, 18 July
Final written submissions:
26 July 2013
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