Clapton v Wesley College [2015] FWC 775 (12 February 2015) [2015] FWC 775 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Susan Clapton v Wesley College (U2013/14252) COMMISSIONER LEWIN MELBOURNE, 12 FEBRUARY 2015 Application for relief from unfair dismissal — genuine redundancy within the meaning of s 389 of the Fair Work Act — consultation — redeployment. Introduction [1] This decision concerns an application by Ms Susan Clapton for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by Wesley College. Ms Clapton was employed on a full-time basis as a Business Analyst. The employment commenced on 29 October 2012 and ended on 16 September 2013. [2] Wesley College has lodged a jurisdictional objection against Ms Clapton’s application for an unfair dismissal remedy on the basis that the dismissal of Ms Clapton was a case of genuine redundancy, as defined in s 389 of the Act. If this objection is sustained, Ms Clapton’s application would be beyond the jurisdiction of the Fair Work Commission (the Commission). Legislative scheme [3] Section 389 of the Act provides for the circumstances in which a redundancy is a genuine redundancy, as follows: “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.” Section 389(1)(a) — operational requirements: [4] Ms Clapton reported to Mr John McAlister, Wesley College’s Head of Information Management and Technology. The evidence of Mr McAlister establishes that a decision was made by him that Wesley College no longer required a full-time Business Analyst and subsequently to abolish the position in which Ms Clapton was employed. The decision also involved the use of contract service providers to fulfil any business analyst requirements on an as needed basis. [5] Therefore, the relevant operational change of Wesley College’s requirements was that the full-time provision of business analysis by a dedicated position was not required for the purposes of the IT service function and any such business analysis would only be on an as needed basis to be provided by contracted service providers. [6] On the evidence before me, Wesley College has established that the required business analysis could be provided by the provision of such analysis on an as needed basis by an external service provider. [7] A consequence of this change in the operational requirement of Wesley College is that the performance of the job which Ms Clapton was engaged to perform on a full-time basis was no longer required. Section 389(1)(b) — consultation: [8] As observed above, Wesley College was subject to consultation obligations. On the evidence before me, Wesley College complied with the consultation requirements of cl 8 of the Educational Services (Schools) General Staff Award 2010 (the Award), which states: “8.1 Consultation regarding major workplace change (a) Employer to notify (i) 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. (ii) 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. (b) Employer to discuss change (i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), 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. (ii) 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 8.1(a). (iii) 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.” [9] Ms Clapton was told by Wesley College on 18 July 2013 that there was no longer any business analysis work available and subsequently Wesley College sought to arrange a meeting with Ms Clapton for 24 July 2013. The meeting was rescheduled to 1 August 2013. [10] At the meeting of 1 August 2013 Ms Clapton attended with a support person. Ms Clapton was provided with a letter headed “Notice of Consultation Process”, in relation to the situation, seeking a response from Ms Clapton in writing by 9 August 2013. A further meeting was scheduled for 14 August 2013. [11] A meeting took place on 2 August 2013 at which Ms Clapton was also invited to respond to changes in the business that could lead to the redundancy of her position. [12] On 9 August 2013 Ms Clapton responded in writing. This was received by Wesley College. [13] Ms Clapton was subsequently advised that the business situation had changed and there was no longer a need for a dedicated business analyst and of the potential implications of that operational change for her role and employment. Ms Clapton was advised that there was a possibility that her role may change significantly or become redundant. [14] On 27 August 2013 there was a further meeting between Wesley College, Ms Clapton and her support person. Ms Clapton was advised that the situation remained such that there was no requirement for a full-time business analyst role. A meeting took place on 4 September 2013 at which Ms Clapton was advised that the position in which she was engaged was redundant and that her employment would end that day. [15] During this process, on 9 August 2013, Ms Clapton made submissions to Wesley College for her redeployment to an on-going role of business analyst at a strategic level and expressed an interest in a position of Functions and Events Manager for Wesley College. Ms Clapton was informed that she was not deemed suitable for redeployment to these positions, but that she was free to make an application for the Functions and Events Manager position along with other applicants. [16] On the evidence before me, Wesley College complied with all of the consultation requirements in the Award. Section 389(2) — redeployment: [17] The relevant authority which provides guidance on the approach to the statutory consideration that a redundancy will not constitute a genuine redundancy within the meaning of the Act if it would have been reasonable to redeploy the employee is contained in the decision of the Full Bench of the Commission in the matter of Technical and Further Education Commission (T/A TAFE NSW) v Pykett [2014] FWCFB 714 ( Pykett ) as follows: “As we have mentioned, the use of the past tense in the expression ‘would have been reasonable in all the circumstances for the person to be redeployed ...’ in section 389 (2)(a) directs attention to the circumstances which pertained when the person was dismissed. As noted in Honeysett, [T]’he exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances’. The question is whether redeployment within the employer’s enterprise or an associated entity would have been reasonable at the time of dismissal. In answering that question the Full Bench in Honeysett observed that a number of matters are capable of being relevant: ‘They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.’” [18] Wesley College gave consideration to redeployment of Ms Clapton to other positions. The evidence shows they did this in relation to the following positions: ● Project Manager of Student Notebook Distribution; ● Functions and Events Manager. [19] In my view, the relevant legislative provisions envisage redeployment as an act of the employer and, where it is reasonable, a course of action of the employer, for the purposes of the Act. [20] Simply informing an employee that they may make an application for a vacant position will fall short of what, in my view, the legislation intends. Where there is a vacant position in the employer’s business which an employee is capable of performing, unless it would be unreasonable for the employer to do so, the statutory presumption is that failure by the employer to act to redeploy the employee would mean that, for the purposes of the Act, the termination of the employee’s employment would not be a case of genuine redundancy. The Commission’s jurisdiction to hear such a case would arise if the person was protected from unfair dismissal at the time of the termination of their employment. [21] This concept has some potential application in this case. However, on the evidence before me, in relation to the vacant positions which have been identified, I am satisfied that it would not have been reasonable, in all the circumstances, for Wesley College to have redeployed Ms Clapton to either of the positions referred to above. [22] Ms Clapton has submitted that it would have been reasonable for Wesley College to redeploy her to the Functions and Events Manager role or to the roll out of student notebook computers for the 2014 school year. [23] I am satisfied that there was not a reasonable basis for doing so because, in my view, Ms Clapton’s skills, competence, qualifications and experience do not comprise a suitable match with the positions or functions of those roles. Ms Clapton’s curriculum vitae and the roles and functions of those two positions are somewhat divergent. [24] A part of Ms Clapton’s case is that there was other work which she could have performed for Wesley College to which she could have been reasonably redeployed. As observed in the decision of the Full Bench, extracted above, if this proposition is made out then the dismissal would not be a case of genuine redundancy for the purposes of the Act. [25] I have reviewed the evidence of such other work. I am prepared to find that more probably than not there was some such work to which Ms Clapton could have been redeployed. However, there are a number of considerations which must be taken into account for the purpose of determining if it would have been reasonable in all the circumstances for Ms Clapton to be so redeployed. [26] The first is the proposed possibility of doing other work for the IT department. I am not satisfied that the other work to which Ms Clapton might have been assigned would have been an effective allocation of the IT budget. I am not satisfied there was a necessity for the work to be performed such that it would have been reasonable for Wesley College to redeploy Ms Clapton to that work. In this respect, there is insufficient evidence of the relevant priority of the work or whether redeploying Ms Clapton would have been an efficient allocation of financial resources within the IT department’s budget. [27] The second consideration is that the evidence is insufficient to establish the volume of such work which could have been reasonably performed within a prudent allocation of resources or the duration for which the work would be viable. Ms Clapton asserted that the availability of such work was voluminous and that it would have been to Wesley College’s advantage to redeploy her. That is a subjective perception which finds insufficient support in the objective evidence to satisfy me that it would have been reasonable to do so. I am not in a position to assume a speculative managerial decision making role in relation to the allocation of Wesley College’s resources to various competing demands on an objective basis on the evidence before me. [28] Therefore, I am unable to be satisfied that it would have been reasonable in all the circumstances for Wesley College to redeploy Ms Clapton to other work. Decision [29] Having reached the conclusions set out above, I must find that the termination of Ms Clapton’s employment was a case of genuine redundancy within the meaning of s 389 of the Act. As a consequence, Ms Clapton’s application is not within the Commission’s jurisdiction. [30] Accordingly, an order dismissing the application must issue. COMMISSIONER Appearances : Ms S Clapton, on her own behalf. Mr M Champion, counsel for the Respondent. Hearing details: Melbourne, 19 March 2014. Melbourne, 20 March 2014. Melbourne, 30 October 2014. Melbourne, 31 October 2014. Final written submissions: Respondent’s final written submissions: 12 November 2014 Applicant’s final written submissions in reply: 15 December 2014 Printed by authority of the Commonwealth Government Printer <Price code C, PR560620>