PR945607 PR945607 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief in respect of termination of employment Phillip Gerard Cullen and Australian Broadcasting Corporation (U2003/2673) COMMISSIONER HOFFMAN BRISBANE, 8 APRIL 2004 Termination of employment. DECISION [1] This is an application by Mr Cullen (the applicant) seeking, under s.170CE (1)(a) of the Workplace Relations Act 1996, (the Act) relief in respect of the termination of his employment by the Australian Broadcasting Corporation (the respondent / ABC) on the ground that his termination was harsh, unjust or unreasonable. [2] Mr Cullen was employed by the ABC from 12 August 1983 until the termination of his employment which took effect on 4 August 2003. He was given notice of the termination on 30 June 2003 on the ground of redundancy. Between April 2002 and August 2003 he was a development officer with Radio Brisbane, but was employed in various positions during his career, including the station manager with ABC Coast FM between November 1997 and April 2002. [3] Pursuant to s.170CF(1) of the Act, the Commission attempted to settle the matter to which this application relates by conciliation. The attempt was unsuccessful. Mr Cullen's application was the subject of arbitration before me in Brisbane between the 1 and 3 December 2003. At the arbitration, the applicant was represented by Mr Plunkett of counsel acting for the Association of Professional Engineers, Scientists and Managers, Australia (APESMA). The respondent was represented by Ms McKenzie, solicitor, Blake Dawson Waldron. THE APPLICANT [4] Amongst other things, it was submitted that the respondent had breached the provisions of the ABC Employment Agreement 2003-2006 (the agreement) with respect to the issue of redundancy. [5] Following a restructure or "spill and fill" at Coast FM, about which the applicant became aware in November 2001, his management position was abolished. There was discussion between the parties of a possible regional production fund development officer position. By March 2002, a process for filling new positions in the restructure was being pursued. The applicant applied for the new position of program director, was interviewed, but was unsuccessful. [6] This lack of success in the first interview, was, the applicant submitted, a premeditated outcome by ABC management. [7] Later, following ongoing discussions between the parties, including APESMA, over the development officer position, the matter came before Commissioner Bacon for conciliation. The outcome of that conciliation led to the issuing of a letter of 18 April 2002 from the respondent's Head of Employment Services to APESMA which stated in part: "please find attached a copy of the ABC's final redeployment offer to Mr Cullen... We would encourage Mr Cullen to treat it as a positive career move." [8] The attached letter addressed to the applicant stated among other things: "The position will be continued until at least June 2003 and you will retain your full time and ongoing status. As discussed before the Commission, the ABC will actively seek during this time to locate a suitable ongoing position for you and you are of course encouraged to apply for any vacant positions you wish to during this time." [9] The applicant's evidence included that he was on sick leave for "anxiety and stresses" in late April 2002. At the time he had to consider this "take it or leave" offer. He also had an "anxiety state" in June 2003. [10] However, APESMA continued to assist the applicant. Following considerable further discussions between the parties, he finally accepted by signing and dating the offer contained in the letter of redeployment dated 10 May 2002. It stated in part: " I am pleased to advise that the ABC wishes to offer you redeployment to the position of Development officer based in ... Brisbane. The terms of your employment include the letter of 18 April 2002...(copy attached) and is set out in the letter below...this offer is unconditional... This offer is final and no further negotiations will be entered into on any aspect of the position... Your employment will also be governed by the ABC Employment Agreement 2000-2002... 1. Term The position will commence on 29 April 2002 and continue until at least 1 June 2003. Closer to this date the ABC will actively seek to locate a suitable ongoing position for you and you are encouraged to apply for any vacant positions you wish to during this time." [11] This is the offer accepted by the applicant and which stated that: "The terms of your employment include the letter of 18 April 2002...(copy attached) and as set out the letter below".... [12] While the attached letter of 18 April 2002 from the respondent offered a term of the contract to be "until at least June 2003", the contract term which was offered on 10 May 2002, and accepted by signing and dating on 13 May 2002, stated that the position will "continue until at least 1 June 2003." There was no reasonable basis for the applicant to have believed, particularly with the assistance afforded to him by APESMA and its adviser, that the respondent's earlier offer of 18 April would override their later 10 May offer, which was accepted by the applicant on 13 May. The difference is, in any event, not sufficiently significant. Nevertheless, following notice given under the dispute settling procedure in the agreement, Commissioner Richards heard from the parties, but the issues in dispute could not be settled. [13] The applicant acknowledged in his evidence that "the position, as any position in the ABC, would be reviewed at various points" (PN238), and later, "anybody in any job in the ABC is that they should have a mind for the future" (PN241). [14] Further, in response to an enquiry from APESMA to the ABC as to what would occur if the applicant was unsuccessful in finding alternative employment within the ABC by June 2003, it responded (March 2002) that the position was only funded until the end of June 2003 "so no commitments can be made at this stage to his employment beyond that date" (PN261). While there were further negotiations over the next few months and the applicant was hopeful it might have provided something positive, this was not the case. [15] There was no evidence of the position to June 2003 being for an initial term. His understanding that something would need to be considered around June 2003 by continuing as development officer or in another position, was confounded by the applicant's dramatically overstating his case to senior management in order to evince a favourable response. [16] There could be no reasonable conclusion drawn from the outcome of proceedings before Commissioner Bacon that the applicant had an ongoing position beyond June 2003 or for some infinite or lengthy period. [17] The applicant was enrolled in a Frontline Management Training Program, which included addressing people skills issues. Performance was not a major issue in the minds of ABC's management, but was nevertheless sought to be addressed by involvement in the Management Training Program. [18] The applicant, however, believed that concerns about his performance or conduct were elements of the respondent's ingenuine decision to terminate him (PN 301 to 303). Further, he believed that the redundancy of some five or six other employees at Coast FM was part of some elaborate plan to get rid of him and or others (PN308). [19] The applicant's evidence included that: he was told by management on 13 November 2001 that Coast FM was to be restructured and his job as station manager abolished and replaced by a program director. he had agreed on 26 November 2001 to participate in a `skills analysis and was interviewed by management, however, there are not ABC records of any outcome. it was agreed communications between APESMA and ABC would occur prior to his termination on appointment of a person to the new program director position. a draft response to APESMA prepared by the Head of Employment Services of 8 February 2002, indicated amongst other things that it "could say the committee had not found Phil to meet the selection criteria...". This was, however, never sent to the applicant. he was interviewed for the program director position on 20 March 2002, but a committee report containing the typed names is dated 28 February 2002. It did not recommend anyone for the position but that the position be re-advertised. on 14 October 2002 he was again interviewed for the program director position, meet the criteria, but was not recommended for further consideration. On 16 May 2003 management, he and his barrister advised him that he was to made redundant effective from 19 May 2003 and handed him a notification of redundancy under Clause 56 of the agreement. in late May 2003 he had expressed an interest in a Darwin development officer position. he understood "that the evaluation of candidates via the ABC's selection process, resulted in confidential outcomes relevant to the consideration of applications on merit against the requirements of the job at the time. The committee's deliberations are informed and limited by available `evidence'. A lack of evidence may diminish a candidate's standing on `merit' but it does not negate the skill". he initiated the Frontline Management Program being undertaken whereas management stated they had decided a program needed to be put in place following the interview committee's report which indicated there was a need to develop his management skills. [20] Further, the applicant submitted amongst other things that: the agreement in Part K Managing Change, provides in Clause 55.2, Notification of Change: 55.2.1 Where the ABC has developed a formal proposal to introduce changes in organisation structure(s), work practices and / or technology (including computer hardware or software) that is likely to have a significant effect on employees, the ABC will notify the affected employees and their representatives to initiate discussions before implementation of the proposed changes. As Vice president Lawler held in Community and Public Sector Union v Australian Broadcasting Corporation [Print 942046], "Employees" in Clause 55.2.1 "ought be construed as referring to a plural and not including the singular." Thus the redundancy of a single employee was "not in itself sufficient to activate the consultation obligations in Clause 55....." I concur. Clause 56.4 of the agreement was also relevant. However, as the respondent submitted, no assessment of `competencies' was required in accordance with Clause 56.5. the ABC failed to discuss its decision to target him on economic grounds over that of another development officer undertaking the same duties and who it unilaterally determined offered greater efficiency and capacity. Some of his former roles were redeployed to other employees. It was difficult to ascertain how the ABC assessed his "competencies", Clause 56.5.2, but instead considered "problems with people management", "longstanding personality clashes", and his capacity to "undermine the new Program Director" which had never been raised with him. The Regional Production Fund is federally funded with a fixed annual allocation of $750,000.00 until June 2005. the core duties of manager Coast FM mirror those of Program Director. the outcome of his interview for the new position was predetermined. there were errors in the request for his redundancy in April 2003. he had once previously been threatened with termination by one of the respondent's managers. the respondent had allowed an untrue assertion, that he had declined the development officer position, to stand for a substantial period. he was aware the development officer position might not continue beyond June 2003 by May 2003, but the respondent's communications were at best ambiguous and not finally determined until April 2003. his "assessment of competencies" required by Part L of the agreement, was not satisfied by reference to his development officer's performance appraisal. THE RESPONDENT [21] The respondent submitted that Mr Cullen was finally made redundant after having been notified by letter of 16 May 2003 of his possible redundancy and a period of some six weeks on redeployment and retraining, in accordance with clause 56.5.3 of the agreement. This allowed the parties to further examine opportunities for redeployment. The redundancy was due to the applicant's position of development officer being abolished on 30 June 2003. [22] Further, the applicant was excess to the ABC's staffing requirements from that time, in accordance with clause 56.2.1 of the agreement; An employee is redundant where: (a) they are no longer required for the effective and economical operation of the ABC. [23] The respondent also submitted that there were financial restrictions on the Regional Production Fund. It was not prepared to break its commitment to, and remove the other occupant of, the development officer position, who had been in the position longer. She had also managed a number of similar projects, taken greater responsibility and had higher level expertise. It was not prepared to replace her in the position with the applicant. Further, the lack of validation or verification of the documents supplied by the applicant, particularly emails, should influence the weight the Commission afforded such documents, which in any case should be minimal. [24] The employer's evidence included that: a letter was sent to APESMA on 13 November 2001 advising them of the proposed restructure of Coast FM. Clause 2.6.1 of the ABC Senior Employment Agreement 2001 (the Senior Employment Agreement) entitled it to terminate an employee on the ground of redundancy where the employee's role is no longer required. as the applicant worked as a development officer, his redundancy entitlements were in accordance with the agreement which provided some more favourable benefits then the Senior Employment Agreement. it advertised the new Coast FM positions in mid December 2001. the applicant, amongst others, was interviewed by a selection committee on 20 March 2002, but none were recommended for the new program development position. The committee recommended the position be re-advertised and that Mr Cullen's application be carried over for further consideration. The applicant was again interviewed on 14 October 2002 for the program development position but was unsuccessful. it did not wish to appoint the applicant to the position other than through interviews and selection on merit. a performance appraisal as development officer was conducted on 18 February 2003 and, in accordance with the agreement, was pursued in May 2003. following a request from the applicant to be allowed to work two days a week from home to save his travel time, this was approved for the remainder of his employment. Approval was also given for a trial period of reimbursing him for calls made from his home in addition to reimbursing his mobile phone calls. despite a recent recruitment freeze across the ABC, the applicant was advised on 19 June 2003 that this would not affect him if a suitable alternative position could be found. the Head of Employment Services email to the Head of Local Radio of 8 February 2002, was in brief response to the latter view, having read the applications for the program director position, that the committee may not select any of the candidates. he wanted to know options. It was not implied predetermination of the selection process, which he had not discussed with the committee of which he was not a member. The March 2002 committee was made up of six people including people from interstate and the CPSU, Public Sector Union. the committee was also responsible for coming up with the short list for interviews and writing the interview questions. Each candidate was rated on recent data against a number of criterion and either met, exceeded or did not meet them. The applicant in March 2002, did not meet one criteria, mainly, effective provision of appropriate timely feedback to maintain the support and enthusiasm of staff. The October 2002 committee was made up of some five people including a CPSU representative. the applicant was difficult and frustrating to deal with at times. the committee found that the applicant met all the criteria, however was assessed as `just meeting' one criterion. both selection committees were independent and differently constituted. No minority reports were issued. the use of the phrase "at least" meant "not earlier than" with respect to the development officer position continuing until June 2003. the applicant's failure to find a suitable ongoing position was not frustration about "performance issues" but because of no suitable band and location vacancies. the applicant's self prepared CV was circulated to managers on a number of occasions. relocation assistance is negotiated on a case by case basis, as part of transfer arrangements. It is normal practice to advise employees that any assistance will be limited. The applicant had been paid significant amounts of relocation assistance in the past. an outplacement service was provided by it to the applicant. the applicant's request to complete his Frontline Management Course after leaving his employment was approved. [25] The respondent submitted amongst other things that: it had a valid reason for the applicant's termination of employment related to its operational requirements. the decision to restructure Coast FM for programming reasons was made in November 2001. Programming would change radically from a music based format to a talk based format. it had the right to manage its business. the applicant was unsuccessful on two occasions for the new position of Coast FM program director based on merit considerations. it was not aware of any evidence to support the allegation that one of its managers allegedly predetermined the outcome of the applicant's interview process. the positions of manager Coast FM and program director were not essentially the same. The latter had different reporting responsibilities, less responsibility for operational administration, was more hands on and with a strong content focus and editorial background. There were also differences between the applicant's development officer position and that in a comparable position in Darwin. a short term role as development officer was offered to the applicant to assist him to find an alternative ongoing position in the ABC. It made all reasonable efforts to find the applicant a suitable alternative position, but as none could be found, he was made redundant on 30 June 2003. for operational and financial reasons, the development officer position ended on 30 June 2003. the regional production funds (the regional funds) purpose was to generate content from, and, where possible, have it produced regionally. It was intended for the development and pilot of external projects. Money is spent on ABC resources only when there is no alternative way to produce the content. the applicant's salary as development officer was not directly funded from the regional fund. The development division's funding is negotiated each financial year. the applicant's chances of redeployment were limited due to band level and location restrictions. reference to the applicant's "problems with people management" were made in the context of training and development offered to the applicant. reference to the applicant's "serious and long term personality clash" arose out of investigations of complaint and counter complaint by the applicant and another employee. the applicant's redundancy was bona fide and genuine, and his position was no longer required for the efficient and economical operation of its business. it can not simply create a position unless there is a need for the work to be done. it was not relevant to give the applicant the opportunity to respond to capacity, for example people management skills, or conduct issues, as the reasons for termination did not relate to unsatisfactory performance. it undertook job planning and performance management with the applicant in 2002 and 2003. the applicant was given notification, payment and redeployment and retraining in accordance with the requirements of the agreement. the applicant's entire case rests on inference, supposition and unsubstantiated allegations. as the applicant failed to cross examine most of its witnesses, the Commission should accept its unchallenged evidence and also prefer its evidence which rebuts that of the applicant. an employer does not need to show that redundancy was the only option available to it, (Print T1001). Part K of the agreement was not related to the applicant's termination of employment. LEGISLATIVE REQUIREMENTS [26] Section 170CG(3) of the Act states: "(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to: (a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and (b) whether the employee was notified of that reason; and (c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and (d) if the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination; and (da) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (e) any other matters that the Commission considers relevant." [27] I will deal with these matters in turn. [28] The first matter is "whether there is a valid reason" (s.170CG(3)(a)). In Lui & ors v Windsor Smith [Print Q3462] (Windsor Smith), a Full Bench (Giudice J (President), Polites SDP and Gay C) said (p.7): "We take the true position to be that where employment is terminated on redundancy grounds it is a question of fact whether the employees selected for redundancy were selected for a reason related to the employee's capacity or conduct, or for reasons of both kinds." [29] In this case the applicant was terminated on the ground that his position was abolished due to the operational requirements of the respondent's business. Operational requirements include redundancy, Quality Bakers of Australia v. Goulding & Another (1995) 60 IR 327. [30] Mr Cullen was terminated as his employment and position were no longer required for the efficient and economical operation of the respondent. This followed a decision by the ABC in November 2001 to genuinely restructure its Coast FM station for reasons of programming, which include content, style and structure. This affected a number of program makers, some eight to ten in all, including approximately five at the Gold Coast, and led to the abolition of the applicant's position of manager and the creation of a new program director position. [31] The applicant and his union were informed. He was also given interviews by committees for the new program director's position, but was advised that he had been unsuccessful. The Commission does not find that the outcome of the first interview was premeditated. A typed date on an unsigned report of four persons including a union representative, is not conclusive support for the applicant's contention. The committee found at the second interview, that the applicant met all of the selection criteria, however, was assessed as "just meeting" one criterion. The selection criteria were followed. No extraneous considerations were wrongly or unfairly taken into account. The successful applicant was, nevertheless, considered the most suitable for the position. Both selection committees were independent and differently constituted. No minority reports were issued. [32] Mr Cullen was not terminated at that time, but was offered a short-term development officer role, during which time he and the ABC had the opportunity to find another ongoing position. His chances of redeployment were limited, however, by his issues, particularly early on, with respect to agreement band and work locality. A valid reason has to be sound, defensible and well founded, Selvachandran v. Peteron Plastics Pty Ltd (1995) 62 IR 371 and not capricious, fanciful etcetera on an objective analysis of the relevant facts Cosco Holding Pty Ltd and Thu Thi Van Do & Ors (1997) 79 FCR 566 [Print 6706] page 37. The Commission finds that there was a valid reason for the applicant's termination of employment, connected with the operational requirements of the employer's business, on the ground that his position was redundant. A valid reason is but one factor to be considered in deciding whether a dismissal is harsh, unjust and unreasonable Edwards and Gudice and Ors [20002] 169 ALR 89 [Print T4149]. [33] The second matter is " whether the employee was notified of that reason " (s.170CG(3)(b)). In Windsor Smith (above) the Full Bench also stated (p.7): "Where the reason for selection is related to the capacity or conduct of the employees or includes such a reason and no opportunity is given to the employees to respond to that reason, that is a factor which the Commission must take into account." [34] The applicant and APESMA were informed by at least February 2003 that the development officer position was not ongoing, but would continue until June 2003. It was accepted. Considerable discussions ensued between the parties. [35] Here the applicant received a letter dated 16 May 2003, in accordance with Clause 56 of the agreement, advising of his possible redundancy and another, dated 30 June 2003, from the Human Resources Manager of Queensland, advising that he was terminated on the ground of his position being redundant from 30 June 2003 and giving him five weeks notice of termination, lapsing on 4 August 2003. This was in accordance with Clause 56.9(6) of the agreement. The applicant's submission that he was not notified of the true reason for termination is rejected on the basis of lack of cogent evidence. There were operational requirements which justified the redundancy. [36] The Commission finds that the applicant was notified of the reason for his termination. [37] The third matter is "whether the applicant was given an opportunity to respond" to any reason related to the capacity or conduct of the employee (s.170CG(3)(c)). [38] Communications were so frequent, regular and ongoing, particularly from, and to the applicant including APESMA, often at least weekly, and sometimes multiple communications in any one day. This was particularly so in the last two to three years of the applicant's employment. By 23 June 2003 one of the respondent's managers stated in part to the Head of Employment Services "enough is enough". Dealing with the applicant at times was frustrating and difficult for the respondent's representatives. [39] While management's request to their managing director for approval of the redundancy referred to concerns about the applicant's people management skills and his consequent enrolment in the management program, the applicant submitted that he was not afforded the opportunity to respond to that issue. The ABC denied the applicant's assertion that he was made redundant based on an evaluation of his conduct and capacity, the unsuccessful outcomes of his interviews before selection committees for the position of program director were based on merit considerations. [40] The Commission finds that there had been more than adequate opportunities to generally respond with respect to ongoing consultation, communication and discussions; clauses 55 and 56 of the agreement. However, there was not any relevant ground of capacity or conduct associated with the reason for the applicant's termination warranting further opportunities to respond. [41] The fourth matter arises where "the termination related to unsatisfactory performance" and requires a finding as to whether "the employee had been warned about unsatisfactory performance before the termination" (s.170CG(3)(d)). While the applicant submitted that he was not warned about people management problems, this is not a significant factor as his termination was about the issue of his redundancy, and did not relate to unsatisfactory performance. It related to operational requirements of the ABC. [42] The fifth matter relates to "the size of the employer's undertaking" (s.170CG(3)(da)). In this case, the employer is a large undertaking and it is not relevant. [43] The sixth matter relates to the degree of the "expertise in the undertaking...impact on the procedures followed" ( s.170CG(3)(db)). Here, the employer has dedicated human resources management specialists and access to legal advice. It is not a relevant factor. [44] The seventh matter is "any other matter that the Commission considers relevant" (s.170CG(1)(e)). [45] One such matter is the applicant's almost 20 years of service as a career public and community broadcaster. The applicant was entitled to, in accordance with the agreement, and paid his redundancy, which included 5 weeks notice of termination which the applicant chose to work out, 64.5 weeks of bona fide redundancy payment in accordance with the agreement, and 2 weeks in lieu of extended redeployment and retraining period, totalling some $107,558. In addition the applicant was paid all his annual leave and long service leave accrued entitlements. His total gross payout was slightly in excess of $144,000.00. [46] Approximately six other Gold Coast employees (and four on the Sunshine Coast) were affected, including redundancy, as part of the Coast FM restructure. Other alternative positions were considered for the applicant. He was given a couple of weeks redeployment work acting in a higher position, and some 15 months as a development officer. The applicant was provided with a management training program and management continued to take reasonable steps to find him alternative employment. [47] Nevertheless, the last couple of years would have been stressful for the applicant and others associated with his redundancy. Mr Cullen has, since his termination, worked on a commissioned project for Griffith University and was preparing for an assignment with Australian Film, Television and Radio. These were short term placements. His age and specialisation in public broadcasting militate against a commercial placement. [48] Section 170CA(1) provides that the principal object of Division 3 - Termination of Employment of the Act includes: (b) to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought;" [49] and s.170CA(2) states: "The procedures and remedies referred to in paragraph (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application, in respect of a termination of employment, a `fair go all round' is accorded to both the employer and the employee concerned." [50] In considering Mr Cullen's application, I have had regard to s.170CA(2). There were allegations of, or perceived deficiencies in procedures followed by the respondent in dealing with the applicant in recent years, particularly with respect to performance agreements or reviews or the lack thereof. These procedures were, in the Commissions opinion, adequate for the development officer position. However, any procedural deficiencies were generally minor in nature. Corrections could have been made to this but this would have merely likely forestalled, for a short time, the ultimate outcome. There were, however, inappropriate comments from certain management about Commission matters. Notwithstanding this, the Commission is satisfied that the applicant was overall, and in accordance procedural and substantive fairness, afforded a fair go all round. The Commission must also accord the employer the same principle. CONCLUSION [51] The Commission has, on an objective analysis of the facts, broadly considered all of the circumstances of the case and the evidence. The Commission, having had regard to the matters specified in s.170CG(3), and in the interests of justice, finds that the termination of employment of Mr Cullen was, on the ground of redundancy, not harsh, unjust or unreasonable. The application is dismissed. BY THE COMMISSION: COMMISSIONER Appearances: Ms H McKenzie for the respondent Mr M Plunkett of Counsel for the applicant. Date and place of hearing: Brisbane 1 December 2003 Printed by authority of the Commonwealth Government Printer <Price code E>