1
Fair Work Act 2009
s.394—Unfair dismissal
Paul Murray
v
Ventyx Pty Ltd T/A Ventyx an ABB Company
(U2013/2397)
DEPUTY PRESIDENT GOOLEY MELBOURNE, 30 JANUARY 2014
Application for relief from unfair dismissal - jurisdictional objection - genuine redundancy.
[1] Paul Murray was employed by Ventyx Pty Ltd (Ventyx) as technical project manager
(TPM) from January 2012. On 1 July 2013, he was advised that his position was redundant as
of 2 July 2013.
[2] The initial issue that must be determined is whether this was a genuine redundancy1
because if that is the case Mr Murray cannot have been unfairly dismissed and his application
must be dismissed.
Background
[3] Ventyx makes computer software and runs teams of individuals who install the
software onsite and commission it. Ventyx is involved in a number of projects of varying
sizes. Ventyx has offices in about 20 countries.2
[4] A project may have a project director, project managers including TPM’s. The TPM’s
will identify the resources needed, ensure that the project is on track and deal with technical
issues. TPM’s can work full time on large projects and for short periods on smaller projects.3
Not all projects have TPM’s. Staffing profiles on projects are determined by the scope of the
project and the agreement of the client.
[5] Mr Murray gave evidence that he expected to be working on the Xstrata project when
he arrived in Australia and that did not eventuate.4 Mr Murray commenced5 working on the
1 Sections 385 and 389 of the Fair Work Act 2009.
2 Exhibit R4 at [2].
3 Exhibit R2 at [4]-[5].
4 Exhibit A1 at [2]-[7].
[2014] FWC 516 [Note: An appeal pursuant to s.604 (C2014/3132) was
lodged against this decision - refer to Full Bench decision dated 29 April
2014 [[2014] FWCFB 2143] for result of appeal.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB2143.htm
[2014] FWC 516
2
SPARQ project which had come on line earlier than the Xstrata project which did not
commence until April 2012.
[6] Mr Murray gave evidence that he would not have accepted the role if he had been told
about the change of client, project and role from Xstrata to SPARQ.6 However, Mr
Weerasekera, his manager, gave evidence which was supported by an email trail that Mr
Murray knew about the SPARQ role prior to signing his contract of employment.7
[7] However, whatever the discussions, Mr Murray accepted an offer of employment
which was not limited to a particular project and it is clear, given the nature of the business,
that TPM’s could be moved from one project to another.
[8] Mr Murray was told in June 2012 that the SPARQ project may be cancelled and this
occurred in July 2012.8 After that Mr Murray worked on a number of different projects
including an overseas project.9
[9] From May 2013, Mr Murray was placed “on the bench”. When staff are between
projects, or only partially involved in projects, they are “on the bench” while they are waiting
for a position to become available on a new or existing project. These means that he was not
allocated to a project and was not billing sufficient hours.10 Being “on the bench” provided
employees with an opportunity to complete training courses in particular e-training courses. In
June 2013, a month’s work was found for Mr Murray but this only occupied 40 per cent of his
time.11 Prior to the completion of that work, Mr Weerasekera looked for more work for Mr
Murray. He “talked to managers and project managers and [he] went to Managed Services,
another group providing support and services to customers, but there was nothing available.
After [Mr Murray] completed the mining solutions work, his schedule would be completely
free for the next six months.”12
A dismissal is a case of genuine redundancy if it is found that:
(i) the employer no longer requires the person’s job to be performed by anyone
because of changes in the operational requirements of the enterprise;
(ii) the employer had complied with its obligation to consult under, in this case, the
Professional Employees Award 2010 (the Award); and
(iii) it would not have been reasonable in all the circumstances to redeploy the
employee within the enterprise or an associated entity of the employer.
5 Exhibit R2 at [16].
6 Exhibit A1 at [11].
7 Exhibit R3at DW 2 and 3.
8 Exhibit R2 at [17].
9 Ibid at [18]-[24].
10 Exhibit R1 at [12].
11 Exhibit R2 at [26].
12 Ibid at [27].
[2014] FWC 516
3
[10] If any of findings in relation to these matters is adverse to Ventyx then it will be
necessary to determine if the dismissal was harsh, unjust or unreasonable.
Did Ventyx no longer require Mr Murray’s job to be performed by anyone because of
changes in the operational requirements of the enterprise?
[11] In May 2013, Mr Storer, the Senior Vice President Global Consulting, took part in a
review of the business and determined that the business was not performing as expected.13 Mr
Schoeman, the then Vice President Consulting APAC, said that he was told of a decision to
downsize the business in May 2013 and that they needed to look at people who were “on the
bench”.14 On 3 June 2013, a meeting of the executive team took place and it was presented
with the global consulting plan. A complete copy of that plan was not put into evidence. One
page was tendered which identifies Mr Murray as one of the staff to be made redundant.15 At
that meeting it was proposed that they would reduce the number of staff who were on the
bench.16 On 11 June 2013, Mr Storer met with Mr Schoeman and briefed him on the proposal
and on the same day he had a telephone conference with Mr Erasmus, Director Consulting
Services, Mr Weerasekera and other managers and told them that they need to reduce staffing
numbers and that they should consider staff who had limited prospects of work.17
[12] An email dated 12 June 2013 confirms that the business case for “right sizing” the
consulting team was approved by the company Chief Executive Officer (CEO). That email
refers to a head count plan received from Mr Storer which required the confirmation of the
names of persons to be made redundant by 14 June 2013. Staff were to be informed of the
decision on 1 July 2013.18
[13] Approximately 100 positions globally were made redundant and nine positions were
made redundant in the consulting team in the Asia Pacific region (Australia).19 Mr Storer gave
evidence that apart from a sales consultant no new employees had been employed in the
consulting team in Australia in the six months following the redundancies.
[14] Mr Weerasekera gave evidence that Ventyx employed two TPM’s. One, Mr Murray,
was made redundant and the other was transferred to another position when the project he was
working on ended.20 Mr Erasmus said that the business no longer engages TPM’s.21
[15] Mr Murray accepted that from May 2013 he was on the bench. While there is some
dispute about the hours he billed whilst on the bench, he had not been allocated to an ongoing
project. Mr Weerasekera gave evidence, which I accept, that he attempted to find work on a
project for Mr Murray but he was unsuccessful.
13 Exhibit R8 at [5].
14 Transcript PN 4383.
15 Exhibit R6 at CS2.
16 Exhibit R8 at [6] and R4 at [29].
17 Exhibit R4 at [9]-[19].
18 Exhibit R6 at CS1.
19 Exhibit R4 at [14].
20 Transcript at PN 3153-3200.
21 Ibid at 2244.
[2014] FWC 516
4
[16] Mr Murray submitted that Ventyx had not established that there were changes in the
operational requirements of the business. However all the senior managers called gave sworn
evidence that there was a need to reduce the number of employees as the business was not
performing as expected. No evidence to the contrary was called and it was not suggested to
any of the witnesses that the decision was a sham.
[17] Mr Murray further submitted that Ventyx had not established that it no longer wanted
his job done by anyone.
[18] It is accepted that a downturn in trade, which reduces the number of employees
required, is a change in the operational requirements.22 It is also accepted that if Ventyx
restructured its business to improve efficiency and the tasks done by a particular employee are
redistributed between several other employees then the person’s job no longer exists.23
[19] I accept the evidence of Ventyx that it was no longer prepared to employ surplus
employees and it needed to reduce its head count. It therefore made a decision to review
employees who were on the bench and unfortunately for Mr Murray he was on the bench at
this time and there was no work in the pipeline for him. I therefore find that Mr Murray’s
position was redundant.
Did Ventyx comply with its obligations to consult about redundancy under the Award?
[20] The decision to reduce the number of employees was made by 12 June 2013 by which
time the right sizing had been approved. While Mr Murray was on the list of persons to be
made redundant as early as 3 June 201324 the names were not finalised until 23 June 2013.25
[21] Mr Murray was told his position was redundant on 1 July 2013.
[22] Mr Erasmus explained that the reason employees were not told earlier was for security
reasons. Ventyx “couldn’t afford to take the risk that a staff member would respond badly to
the news of their redundancy and cause damage, both internal and external, to the business.”26
[23] Mr Weerasekera and Ms Shrubsole were present at the meeting with Mr Murray. Mr
Weerasekera followed the script that had been prepared for him.27 Mr Murray was told that if
there are any mitigating circumstances or other relevant information that [they] had not
considered to let them know as quickly as possible.
[24] Mr Murray was given a redundancy pack. The pack contained a letter of termination
and advised he would be retrenched on 2 July 2013.
22 Explanatory Memorandum Fair Work Bill 2008 at [1548].
23 Ibid.
24 See paragraph [12] of this decision.
25 Exhibit R4 at [12].
26 Exhibit R1 at [16].
27 Exhibit R2 at [36].
[2014] FWC 516
5
[25] A further meeting was held on 2 July 2013. Mr Murray was accompanied at this
meeting by a support person. Over the two meetings, Mr Murray asked a number of questions
and expressed interest in a number of positions. Ventyx saw this meeting as part of the
consultation process.28
[26] The Award provides as follows:
“9. Consultation regarding major workplace change
9.1 Employer to notify
(a) Where an employer has made a definite decision to introduce major changes in
production, program, organisation, structure or technology that are likely to have
significant effects on employees, the employer must notify the employees who may be
affected by the proposed changes and their representatives, if any.
(b) Significant effects include termination of employment; major changes in the
composition, operation or size of the employer’s workforce or in the skills required;
the elimination or diminution of job opportunities, promotion opportunities or job
tenure; the alteration of hours of work; the need for retraining or transfer of employees
to other work or locations; and the restructuring of jobs. Provided that where this
award makes provision for alteration of any of these matters an alteration is deemed
not to have significant effect.
9.2 Employer to discuss change
(a) The employer must discuss with the employees affected and their representatives,
if any, the introduction of the changes referred to in clause 9.1, the effects the changes
are likely to have on employees and measures to avert or mitigate the adverse effects
of such changes on employees and must give prompt consideration to matters raised
by the employees and/or their representatives in relation to the changes.
(b) The discussions must commence as early as practicable after a definite decision
has been made by the employer to make the changes referred to in clause 9.1.
(c) For the purposes of such discussion, the employer must provide in writing to the
employees concerned and their representatives, if any, all relevant information about
the changes including the nature of the changes proposed, the expected effects of the
changes on employees and any other matters likely to affect employees provided that
no employer is required to disclose confidential information the disclosure of which
would be contrary to the employer’s interests.”
[27] Ventyx submitted that the definite decision was made on 23 June 2013. I disagree.
Ventyx is confusing the decision to introduce change with the consequences of that change.
Here the relevant decision was the decision to downsize the consultancy business. I do not
28 Exhibit R7 at [12].
[2014] FWC 516
6
accept Ventyx’s submission that this was a proposal until 23 June 2013.29 The proposal
ceased to be proposal when the CEO approved the resizing. That decision was made at the
latest by 12 June 2013.30 Mr Schoeman accepted that at 3 June 2013 they had already
identified the people that they needed to make redundant.31
[28] Ventyx was obliged then to discuss, as early as practicable, the proposed change with
the employees who are likely to be affected by the change.32 The use of the words likely to be
affected strongly supports the conclusion that it is the decision to introduce the change that is
critical and not the precise identification of employees who are to be made redundant. Ventyx
did not disclose to the employees, who were employed in the consultancy business, any
information about the decision to downsize until 1 July 2013 when it had identified the
employees who were to be made redundant and had coached its management team in how to
manage the discussion.
[29] It was submitted that Ventyx was not able to notify employees earlier because it was a
global review and not all employees were covered by awards and because of the security issue
described by Mr Erasmus.33 Further, it was required to coordinate the redundancy
notifications at various locations, it needed to prepare the employees’ documentation,
investigate redeployment options and coordinate outplacement services and brief managers.34
[30] Even if I accepted these submissions, what occurred on 1 and 2 July 2013 was not
discussion about the proposed change. Mr Erasmus was clear, once someone’s name was on
the approved list, there was nothing they could do to have their name taken off the list.35 Mr
Weerasekera agreed that there was nothing Mr Murray could have said to him that meant he
could have taken him off the list.36 Mr Storer said the only circumstances in which a person’s
name could come of the list was if “some new work that we had previously been unaware of
had been contracted and we had demand for their skills.”37
[31] It is clear from the script that what was to be discussed was “the process from this
point.”38 Further, it is clear that Ventyx only considered itself obliged to notify Mr Murray of
“the business change and the reasons for [his] position becoming redundant.”39 Mr
Weerasekera told Mr Murray that “there is no work and we are changing the structure of the
group and there won’t be tech PM roles.”40
29 Transcript at PN 4561.
30 Exhibit R6 at CS1.
31 Transcript at PN 4390 - 4397.
32 Ulan Coal Mines Limited v Henry Jon Howarth and others [2010] FWAFB 3488 at [28]-[29].
33 Transcript at PN 4543 - 4544.
34 Exhibit R10 at [29].
35 Transcript at PN 2079 to 2084.
36 Ibid at PN 3440-3451.
37 Ibid at PN 3901.
38 Exhibit R6 at CS6.
39 Ibid at CS12.
40 Transcript at PN 3449.
[2014] FWC 516
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[32] The meetings on 1 July and 2 July were not an opportunity to discuss the decision to
downsize the consultancy business. For example Ms Shrubsole, in response to a question in
the interview about whether a restructure had occurred, replied “the business will
communicate about these changes in due course. But it would not be appropriate to discuss
this across the business until each of the affected staff members was informed. There is a
process being considered for the best way to let the wider team know.”41 This response clearly
shows that Ventyx did not consider that the selected employees needed to know about the
reasons for the decision, only those who were to remain in employment needed to understand
the restructure.
[33] It is clear that the Award obliges the employer to do more than tell the affected
employees what it intends doing; it must give the employee information about what is decided
and give the employees an opportunity to put forward alternatives to avert or mitigate the
adverse impact of the decision and give consideration to those proposals. This includes
providing the employees with an opportunity to change the employer’s decision.
[34] It is clear that what took place on 1 and 2 July 2013 was not discussion as required by
the Award as Mr Murray raised a number of issues including alternative positions. These
matters were not responded to until after Mr Murray’s employment had been terminated.42
[35] I do not accept that because some of the employees who were likely to be affected
were not covered by the Award, Ventyx was absolved of its obligation to discuss the proposed
changes with employees who were covered by the Award.
[36] I do not accept the submissions of Ventyx that it was only practicable to discuss the
decision once the individual had been identified and security issues could be addressed. While
I accept that there may have been some security concerns, Mr Erasmus accepted he did not
have any security concerns about Mr Murray.43 I do not accept that the only way Ventyx
could have managed its security concerns was to not advise employees of the decision until all
employees could be notified and have their computer access shut down.
[37] I also do not accept that the pre-notification steps taken by Ventyx were necessary
prior to notifying employees of the decision to down size the consultancy business.
[38] As such there was no opportunity for Mr Murray to change the decision made by
Ventyx either to downsize the consultancy business or to make him redundant.
[39] I therefore find that as Ventyx did not comply with its obligation to consult under the
Award; this is not a genuine redundancy.
[40] As such, it is not necessary for me to consider whether it would have been reasonable
in all the circumstances to redeploy Mr Murray. However, given my decision in this matter, I
will address this issue because it is relevant to the question of how long Mr Murray would
have remained in employment.
41 Exhibit R6 at [55].
42 Ibid at CS12.
43 Transcript at PN 2051.
[2014] FWC 516
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[41] Mr Weerasekera gave evidence of his attempts to find work for Mr Murray after the
SPARQ project was cancelled. He was successful in finding Mr Murray work up until June
2013. The nature of Ventyx’s business model was that it employed permanent employees to
work in a project based business. It is therefore inevitable that if a project comes to an end the
employees will be allocated to another project if one is available. It is clear that after the
decision, Mr Weerasekera looked for work for Mr Murray in Australia.44 Mr Weerasekera did
not look for jobs for Mr Murray outside of Australia despite the fact that during his
employment with Ventyx he had performed work outside of Australia.45 There was no
evidence that Mr Weerasekera or anyone else looked for lower paid positions for Mr Murray.
[42] Mr Murray was provided on 1 July 2013 with a list of job vacancies. There was
conflicting evidence about the list that was provided to Mr Murray. I accept the evidence of
Mr Murray that the list he was provided was the list that is exhibited to his witness
statement.46 For whatever reason that list did not indicate that certain jobs on the list were in
Australia. As a consequence Mr Murray did not express an interest in those positions. Mr
Weerasekera reviewed the Australian jobs and determined that they were not suitable.47
[43] It is clear from the evidence that Ventyx did not consider that it was obliged to
consider if any of the other positions were suitable for Mr Murray. It is also clear that the list
was provided to Mr Murray on the basis that he would be required to apply for the positions.
It is also clear that despite expressing interest in some positions no action to investigate these
positions was taken by Ventyx until after his employment was terminated. While Mr
Weerasekera gave evidence that he had subsequently seen the job descriptions, he also gave
evidence that the job descriptions were not available to be sent to Mr Murray. He did not
determine if those positions were suitable for Mr Murray nor did he provided any feedback to
Mr Storer or Mr Schoeman that Mr Murray was interested in these positions as an alternative
to redundancy.
[44] It is also clear that Ventyx did not consider offering Mr Murray a lesser skilled job at a
lower rate of pay48 despite Ventyx’s own redundancy policy stating that alternative positions
which include a position which is less comparable because it might be at a lower salary or
level, require a different skill set or a significantly different location,49 could be offered to
employees.
[45] As the list of jobs was provided to Mr Murray, I can only assume that Ventyx
considered at least some of the jobs on the list were suitable for Mr Murray, otherwise why
provide the list at all.
[46] Ventyx did not consider redeployment to an overseas vacancy as reasonable in all the
circumstances because of the costs of relocation and because these positions could be filled by
44 Exhibit R3 at [30] and Transcript at PN 2846 - 2848 and PN 3358 - 3361.
45 Transcript at PN 3709.
46 Exhibit A1 at PM6.
47 Transcript at PN 3727 - 3738.
48 Ibid at PN 4476.
49 Exhibit A1 at PM8.
[2014] FWC 516
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local people.50 Ventyx did not discuss with Mr Murray whether he would have accepted
redeployment to an overseas posting without the payment of relocation costs. If the positions
were only available to local employees, one can only ask why were they included on a list
provided to Mr Murray.
[47] Ventyx submitted that redeployment was not reasonable because there had been a
global downturn in their business. However despite that downturn it had vacant positions.
[48] Ventyx submitted that is does not usually relocate employees overseas unless there is a
business reason to do so and there was no business reason to do so. The same might be said
about any relocation or reassignment. However the Fair Work Act 2009 requires
redeployment if it is reasonable in all the circumstances and unlike the situation described by
Senior Deputy President Richards in Roy v SNC-Lavalin Australia Pty Ltd,51 here the
Respondent did have Australian employees working overseas and provided Mr Murray with
information about overseas vacancies. Further there was no evidence to support the
submission that each international office of the Respondent generally recruits locally for
advertised positions (or has control of the recruitment process).52 Mr Storer’s evidence was
that “when considering a potential relocation, the main consideration would be whether the
staff member could do the job and whether they were the only person who could do the
job.”53 Even accepting this limitation, which I do not, no steps were taken to see if Mr Murray
could be redeployed to these positions prior to his dismissal.
[49] While Mr Storer said there were local people who could fill the jobs,54 it is not
supported by the evidence as those positions were vacant and no evidence was put that they
had been filled. Further, Ventyx’s own policy commits it to giving preference to “suitably
qualified and experienced employees whose positions have become redundant when filling all
vacancies prior to external advertising.”55
[50] I am therefore satisfied that it would have been reasonable to redeploy Mr Murray to
one of the positions on the list provided by Ventyx. At the very least these matters should
have been fully explored during the discussion process.
As I have determined that this was not a genuine redundancy I must decide if Mr
Murray’s dismissal was harsh, unjust or unreasonable
[51] In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the Fair Work Commission (the Commission) must take into account the
following.
Whether there was a valid reason for the dismissal related to Mr Murray’s capacity or
conduct (including its effect on the safety and welfare of other employees): s.387(a)
50 Ibid at PN 4587.
51 [2013] FWC 7309.
52 Exhibit R11.
53 Exhibit R4 at 18.
54 Ibid at [20].
55 Exhibit A1 at PM8.
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[52] Both parties made submissions on whether there was a valid reason for the termination
of Mr Murray’s employment. The Full Bench in UES (Int’l) Pty Ltd56 found that s.387(a)
“does not go to the process of selecting the person for redundancy57 and if the dismissal was
not related to the employee’s capacity or conduct “there cannot have been and was not a valid
reason for his dismissal related to his capacity or conduct.”
Whether Mr Murray was notified of that reason: s.387(b)
[53] In UES58 it was suggested that this provision is neutral if the reason for the dismissal
did not relate to the capacity or conduct of the dismissed employee.59 Whether this criterion is
taken into account here or when considering s.387(h) the failure to afford employees
procedural fairness prior to the dismissal is a relevant factor in determining if the termination
is unfair.
[54] In Crozier v Palazzo Corporation Pty Ltd,60 the Full Bench of the Australian Industrial
Relations Commission considered whether the equivalent provision in the Workplace
Relations Act 1996 (as it existed prior to Workplace Relations Amendment (Work Choices)
Act 2005) required the employee to be notified before the decision was made.
[55] The Full Bench held that:
“As a matter of logic procedural fairness would require that an employee be notified of
a valid reason for their termination before any decision is taken to terminate their
employment in order to provide them with an opportunity to respond to the reason
identified. Section 170CG (3) (b) and (c) would have very little (if any) practical effect
if it was sufficient to notify employees and give them an opportunity to respond after a
decision had been taken to terminate their employment. Much like shutting the stable
door after the horse has bolted”.61
[56] Mr Murray was given a letter of termination on 1 July 2013 to take effect on 2 July
2013. Mr Murray was notified of the reason after the decision to terminate his employment
had been taken. I do not accept the submission that there was anything Mr Murray could have
done to reverse the decision.
Whether Mr Murray was given an opportunity to respond to any reason related to the
capacity or conduct of the person: s.387(c)
[57] For the reasons set out above in relation to section 387(b), UES62 suggests that this
factor is neutral. However I adopt the same approach as I did to section 387(b) which is that it
56 [2012] FWAFB 5241.
57 Ibid at [26]
58 op cit.
59 Ibid at [43]
60 Print S5897.
61 Ibid [73].
62 op cit.
[2014] FWC 516
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is a relevant factor. The opportunity to respond must be given before a decision is taken to
terminate the employee’s employment.
Any unreasonable refusal by the employer to allow Mr Murray to have a support person
present to assist at any discussions relating to dismissal: s.387(d)
[58] Mr Murray did not ask to have a support person at the first meeting because he was
not told what the meeting was about. He did have a support person present at the second
meeting.
If the dismissal related to unsatisfactory performance by the person—whether Mr
Murray had been warned about that unsatisfactory performance before the dismissal:
s.387(e)
[59] The dismissal was not related to Mr Murray’s work performance therefore this
criterion is neutral.
The degree to which the size of the employer’s enterprise would be likely to impact on
the procedures followed in effecting the dismissal: s.387(f)
[60] It was submitted that the procedures adopted were appropriate having regard to the
size of the business, the global restructuring, its concerns about security and confidentiality,
the simultaneous redundancy in different locations and the preparation required to effect the
redundancies. Ventyx is a global company. I have already made a finding in relation to
Ventyx’s compliance with its obligations under the Award. I also accept the submissions of
Mr Murray that Ventyx did not comply with its own redundancy policy. I find that the size of
the business does not mitigate the failure of Ventyx to comply with its Award and policy
obligations.
The degree to which the absence of dedicated human resource management specialists
or expertise in the enterprise would be likely to impact on the procedures followed in
effecting the dismissal: s.387(g)
[61] Ventyx has dedicated human resources management.
Any other matters that the Commission considers relevant: s.387(h)
[62] Ventyx submitted that there was a valid reason for the termination of Mr Murray’s
employment, there had been a global turndown and Mr Murray was on the bench. It further
submitted that there was no new or existing project that required a technical project manager
and there were no other suitable roles in the business of interest to Mr Murray. As Mr Murray
was the only technical project manager on the bench his employment was terminated.63
[63] Mr Murray’s employment was terminated because at the time Ventyx decided it was
going to reduce its workforce in the consultancy business, he was on the bench. I have
accepted that there were operational reasons for the decision to reduce the number of
63 Exhibit R9 at 1.1-1.3.
[2014] FWC 516
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employees in the business. Mr Murray gave evidence that he had made complaints about
being bullied at work. If it was Mr Murray’s submission that he was selected for redundancy
because he made those complaints then I do not accept the submissions. Mr Murray was not
on the bench because he made those complaints. While it was submitted that he could have
remained on the overseas job, I accept Mr Weerasekera’s evidence that all the Australian
workers were replaced after April 2013 and this did not have anything to do with Mr
Murray’s complaint. Mr Murray was chosen for redundancy because he was on the bench at
the time the decision was made. I therefore conclude that there was a sound, defensible or
well founded reason for the termination of Mr Murray’s employment.
[64] While Mr Murray made submissions about his relocation from the UK to Australia to
take up this position, he was not head hunted and there was no deception involved in his
recruitment. There was no evidence that Ventyx was planning to downsize its business when
they offered Mr Murray a job. He knew that he was being employed as a TPM and that he
could be moved from project to project.
[65] Mr Murray was given no notice of the decision to downsize the business. He was
given no real opportunity to find other work within Ventyx or with its associated entities. He
was given no real opportunity to change Ventyx’s decision. Further, Ventyx did not comply
with its own redeployment policy and examine both comparable and non comparable
positions for Mr Murray. Employees are entitled to expect that companies will comply with
the policies they promulgate. While I accept that Ventyx was lawfully entitled to buy out the
notice period to do so in circumstances that made its redundancy policy ineffective is unfair.
[66] Had Ventyx complied with their policy, I consider there was a chance that Mr Murray
would have been redeployed.
[67] Mr Murray had only worked for Ventyx for 14 months. It was submitted that the
decision to terminate Mr Murray’s employment was harsh because he had a disabled partner
and he was not an Australian citizen and was not entitled to government benefits.64 There was
no evidence that Ventyx knew that Mr Murray would not be entitled to government benefits. I
accept that Mr Weerasekera knew that he had a disabled partner. It was also submitted that it
was harsh as Mr Murray was new to Australia and had not had the opportunity to build up
contacts which are necessary to obtain alternative employment.65
Conclusion
[68] Ventyx submitted that I should find that the failure to consult does not make the
termination unfair.66 I do not agree. Had consultation occurred Mr Murray would have been
better able to look for work within Ventyx and with other companies. He would have had the
opportunity to look for work whilst still in work. Mr Murray was denied the opportunity that
was provided for in the Ventyx policy to be redeployed to a comparable and non-comparable
position. Mr Murray was presented with a fait accompli dressed up as consultation. He was
unfairly dismissed.
64 Transcript at PN 4698 - 4702.
65 Ibid at 4709.
66 Exhibit R12 at [20].
[2014] FWC 516
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Remedy
[69] Mr Murray is seeking reinstatement of his employment.67 I accept that Ventyx had to
reduce staff and that no new staff, except for one sales position, have been employed by
Ventyx consulting team since July 2013. No evidence was called about employment in other
teams or associated entities. Mr Murray submitted that he had expertise in areas that Ventyx
was moving into but evidence was given that this work did not eventuate. I accept that things
have not improved in the six months since the termination. I accept that there are no TPM
positions any more. I therefore do not consider it appropriate in all the circumstances to
reinstate Mr Murray.
[70] In assessing any amount in lieu of reinstatement, the Commission is required to have
regard to the following.
The effect of the order on the viability of the employer’s enterprise: s.392(a)
[71] No submissions were made that any order would affect the viability of Ventyx.
The length of Mr Murray’s service with the employer: s.392(b)
[72] Mr Murray only worked for Ventyx for a short period of time.
The remuneration that Mr Murray would have received, or would have been likely to
receive, if he had not been dismissed: s.392(c)
[73] Had there been consultation, Mr Murray may have found alternative work. While
Ventyx had decided to no longer use TPM’s, it still had roles for technical leads and there was
no evidence that Mr Murray was not qualified to do that work albeit paid at a lower rate of
pay. Further it had vacancies both in and out of Australia.
[74] There was evidence that the other technical project manager had applied for a senior
project manager position which he took up in November 2012. It was not clear from the
evidence when this position was advertised.
[75] In all the circumstances, I consider that Mr Murray would have remained in
employment for another 12 months. I have had regard to Mr Murray’s willingness to consider
a lower paid position or positions overseas without the payment of relocation payments as an
alternative to redundancy. I also accept that Mr Murray like the other TPM could have
transitioned to a number of different roles.
The efforts of Mr Murray (if any) to mitigate the loss suffered because of the dismissal:
s.392(d)
67 Exhibit A1 at [96].
[2014] FWC 516
14
[76] Mr Murray gave evidence that he had applied for jobs and had not obtained any work
since the termination of his employment.68
The amount of any remuneration earned by Mr Murray from employment or other
work during the period between the dismissal and the making of the order for
compensation: s.392(e)
[77] Mr Murray did not earn any income from employment or other work. He had received
income from a rental property and some investments but it was not submitted regard that
should be had to this income presumably because this is income he would have received even
if he had remained in employment with Ventyx. Mr Murray was paid $9,527.17 as severance
pay.
The amount of any income reasonably likely to be so earned by Mr Murray during the
period between the making of the order for compensation and the actual compensation:
s.392(f)
[78] Given my decision this is not relevant.
Any other matter that the Commission considers relevant: s.392(g)
[79] Ventyx submitted that Mr Murray has not quantified his loss. I do not agree. Mr
Murray has been out of work since the dismissal and he has sought alternative employment.
His loss is the loss of the wages he would have received for the period he would have
remained in employment less any monies earned. This is quantifiable on the evidence before
me.
[80] Ventyx submitted that compensation should be limited to the period of time that would
have enabled the consultation to occur. They rely upon the decision in UES. The facts in this
case are distinguishable to that in UES. In that case the Full Bench determined that had
consultation occurred the result would not have been different. Here given the available
positions, Mr Murray’s willingness to take a lower paid position or relocate without the
payment of relocation costs, I am satisfied that had the consultation occurred that the result
would have been different.
[81] While evidence was given of the impact of the termination on Mr Murray I have not
included any component for shock, distress or humiliation.69
[82] Had Mr Murray remained in employment for one year he would have earned
$134,999.99 inclusive of superannuation. I have deducted from this amount $9,527.17 paid to
Mr Murray as severance pay. I would reduce this amount by 30 per cent to allow for the
possibility that Mr Murray would have subsequently been made redundant and other
contingencies. This would result in compensation of $87,830.97. This amount exceeds the
compensation cap.70
68 Transcript PN 205 - 208.
69 Section 392(4) of the Act.
70 Section 392(5) of the Act.
[2014] FWC 516
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Conclusion on remedy
[83] I will therefore order that Ventyx pay Mr Murray $64,650 less appropriate taxation
within 21 days of the date of this decision.
DEPUTY PRESIDENT
Appearances:
Mr P. Murray & Ms A. Barclay for the Applicant.
Ms K Garner for the Respondent.
Hearing details:
2013.
Brisbane;
12 and 13 December 2013.
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Price code C, PR547018
FAIR WORK COMMISSION AUSTRALIA THESEAL OF
