https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc4818.htm

This is case where Commissioner Johns found that the redundancy was not genuine because (despite the respondent arguing otherwise) there was an opportunity for redeployment to a similar position within the organisation.

This decision amounted to many, many pages, but what I found intriguing was that Commissioner (in almost as lightbulb moment) stated using the phraseology “cutting to the chase” and that the “cat was out of the bag” and could see the “elephant in the room”. This describing that the employees needed to reflect the cultural or ethnic background of the constituents. That is, whilst not mentioned, they wanted someone of an Anglo/Celtic heritage.

Introduction

As the Commissioner in this matter put at the outset:

“If the termination was a case of genuine redundancy then [the] application for an unfair dismissal remedy must be dismissed. If the termination was not a case of genuine redundancy it becomes necessary to determine if termination of employment was unfair”.

Background

The respondent in this matter was a religious organisation, that undertook the process of becoming incorporated and also took the opportunity to look at its operating structure.

Resulting from the restructure, the team in which the applicant was one of eight employees:

  • 1 resigned,
  • 2 were reassigned to other Uniting entities,
  • 2 took redundancy packages,
  • 1 took up a new position in the restructure,
  • 2 (one of which was the Applicant) had their employment terminated.

The applicant applied for a role within the respondent’s organisation along with 13 others. The applicant was one of three shortlisted for the position, but ultimately unsuccessful in attaining that role.

At the hearing, the respondent made a number of points, one being:

“…there is no warrant in the statute or the case law for the proposition that an employer must assess whether a current employee could do the new role before going to market. Put in another way, there is no absolute obligation to exhaust all opportunities for people who are likely to be displaced in a restructure before an employer goes out to market”.

Also arguing that in Ulan Coal Mines Limited v A. Honeysett and Ors, “that goes closest to supporting such a proposition (although it is submitted it falls well short), is found at paragraph [34] as follows:

‘… 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’.

“It is submitted that the passage goes no further than saying that if such a process is adopted it might be found that the dismissal was not a genuine redundancy; not that it will be found to be so”. And later in the same decision:

‘Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or within a reasonable period of retraining’”.

Associated entities

As with all redundancy matters, the employer (if they have (eg) subsidiaries) have a legal obligation to look to those subsidiaries as a chance of redeploying the employee rather than simply making them redundant.

In this case, the organisation operates in Australia through its Synods, unincorporated associations, presbyteries and congregations.

But:

  • It is clear from this evidence that these other entities are not the employer, the “wider” Church is not part of the employer’s enterprise.
  • These entities are not corporations.
  • The entities are unincorporated associations, they are not a natural person, a body corporate (other than an exempt public authority), a partnership or a trust.

Consultation

As the applicant was not subject to an award or an agreement, there was no legal obligation to consult. However, the Commissioner did note that there was real and genuine consultation with the Applicant about the change program; her redundancy; and, termination.

Was the Applicant’s job no longer required to be performed?

To be satisfied the dismissal was a case of genuine redundancy, I must be satisfied that the [applicant’s role] was no longer required to be performed by anyone because of operational changes undertaken by the Respondent. The Respondent contended that this was the case.

The Commissioner finding on this point that the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in its operational requirements.

Was redeployment reasonable in all the circumstances?

The Commissioner finding that the applicant’s role “was no longer required to be performed by anyone”, the redeployment options were required to be considered:

  • Whether there exists a job or a position or other work to which the employee can be redeployed;
  • The nature of any available position;
  • The qualifications required to perform the job;
  • The employee’s skills, qualifications and experience; and
  • The location of the job in relation to the employee’s residence and the remuneration (pay and entitlements) which is offered.

The Commissioner agreed with the respondent’s premise that there is no established requirement that an employer must conduct an internal process before “going out to market” or “spilling and filling” where the result is internal candidates compete against external candidates. There is no requirement, mandated by the Fair Work Act, that internal candidates be given preferential treatment. However, in “all the circumstances” of a particular matter, whether there was an internal process in advance of an external one is a relevant consideration in determining whether redeployment was reasonable.

Was there a job or a position or other work to which the employee could have been redeployed?

The Commissioner adduced that the restructure identified three positions which provided for the possibility of redeployment in terms of skillset, remuneration and location.

According to the evidence, the following is interesting:

“I have carefully considered the position description for each of the [roles]. Having done so, it is apparent to me that, for their own purposes, both the Applicant and the Respondent overstate their respective positions. It is not the case, as the Applicant contended, that the two roles are essentially the same. They are not. But also, neither are the positions substantially different as the Respondent urged the Commission to find. The truth lies somewhere in the middle. [my emphasis].

“I was indebted to [the respondent’s advocate] for “cutting to the chase”. Finally, the “cat was out of the bag”. Finally, we could see the “elephant in the room”. However, none of these concerns about cultural/theological issues affecting more conservative congregations were expressly put to the Applicant during the interview process. She was judged against a criterion that was unspoken or couched coyly. There was an inherit unfairness in that process.

“…An example that would be the congregation…who were largely Tongan, Fijian, Niuean and Cook Island members, many of whom would have had a very conservative understanding of theology, and [the applicant] and her engagement with that congregation was able to spend more time in biblical reflection with them and find ways of helping them explore language which was appropriate for their situation.

“That means that rather than presenting challenging or confronting ideas of how the church should be, she would begin with going back to basics about…Christian discipleship, about the understanding of Jesus Christ as a leader of mission and invite people to reflect on their own biblical framework”.

The Commissioner, now having formed the view that the interview process was rigged against the applicant concluded that the applicant should have been redeployed. This resulting in the redundancy not being genuine in nature.

Having dealt with the “jurisdictional issue” of redundancy, the Commission moved onto the validity of the dismissal. The Commissioner found that there was no valid reason and concluded that the dismissal was harsh, unjust and unreasonable, because:

  • The Respondent failed to give life to its own employment policies which provide that “Employers will take all reasonable steps to assist any employee whose position will no longer exist”;
  • The Respondent did not proactively assist the Applicant to find alternative employment;
  • The open merit selection committee process disadvantaged the Applicant in her ability to properly demonstrate her ability to undertake the [alternative role];
  • The age of the Applicant;
  • The very specialised nature of the work that she was undertaking with the Respondent that was not easily transferable outside the context of the [respondent];
  • The time of the year at which time the dismissal was affected which meant that it made it more difficult for the Applicant to obtain alternative employment in her previous career as a teacher.

The Commissioner adjourned the matter:

“Therefore, as a matter of procedural fairness, the parties should be provided with an opportunity to put on further evidence and materials in relation to relevant matters concerning remedy (if any)”.