[2010] FWA 8789 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Dr Paul Harrison
v
Queensland University of Technology
(U2010/5375)
COMMISSIONER ASBURY |
BRISBANE, 12 NOVEMBER 2010 |
Termination of employment - jurisdiction.
Background
[1] This decision relates to an application filed by Dr Paul Harrison for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act), in respect of the termination of his employment by the Queensland University of Technology (QUT). Dr Harrison was employed from 1994 until 31 December 2009 as a Senior Lecturer in the School of Sociology, later the School of Humanities and Human Services. Dr Harrison taught units in the discipline of Sociology and these units were components of QUT’s Bachelor of Arts or Bachelor of Social Science Degrees.
[2] QUT contends that due to a decision to close the School of Humanities and Human Services and discontinue student intake into the Bachelor of Arts and Bachelor of Social Science degrees, Dr Harrison’s role was redundant from 31 December 2009 and his employment was terminated on that date. QUT objects to Dr Harrison’s application for relief, pursuant to s.389 of the Act, on the basis that his dismissal was a genuine redundancy.
[3] Dr Harrison contends that the decision to terminate his employment was not made in accordance with the provisions for redundancy in the Queensland University of Technology Enterprise Bargaining Agreement (Academic Staff) 2005-2008 (the Agreement), and was a “completely arbitrary process of personal selection.” Dr Harrison also contends that his dismissal was unfair, and seeks reinstatement.
[4] The application did not settle at conciliation and Dr Harrison elected to proceed to arbitration. At a Directions Conference it was agreed that that the application would be progressed by way of a hearing on the question of whether the dismissal was a case of genuine redundancy and in the alternative, whether the dismissal was unfair.
The Legislation
[5] Section 385 of the Act provides as follows:
385. A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed;
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[6] The effect of these provisions is that s.385(a) and s.385(b) are general provisions which relate to all applications made by persons protected from unfair dismissal under s.382 of the Act. Sections 385(c) and (d) are matters which may be raised as preliminary questions by employers in response to unfair dismissal applications. Generally, the employer as the party raising the preliminary questions, will carry the onus of establishing that the dismissal was consistent with the Small Business Dismissal Code or that the dismissal was a case of genuine redundancy. The two preliminary questions are mutually exclusive and the Small Business Dismissal Code does not deal with dismissals in cases of redundancy. 1 Where the employer succeeds with the preliminary argument under either s.385(c) or s.385(d) the dismissal is withdrawn from the operation of s.385. The effect is that the employee cannot succeed with an argument that dismissal is unfair on the basis that it was harsh, unjust or unreasonable, where the dismissal was consistent with the Small Business Dismissal Code or a case of genuine redundancy.
[7] Conversely, where the employer does not succeed with the preliminary argument by establishing that the dismissal was consistent with the Small Business Dismissal Code or a case of genuine redundancy, it is not automatic that a finding will follow that the dismissal in question was unfair on the basis that it was harsh, unjust or unreasonable. In such cases the onus shifts to the dismissed employee, to establish that the dismissal was unfair because it was harsh, unjust or unreasonable, and the matters in s.387 are then relevant.
[8] In the present case, if QUT establishes that the dismissal was a case of genuine redundancy, Dr Harrison is precluded from pursuing an unfair dismissal remedy on the basis that the dismissal was otherwise harsh, unjust or unreasonable. If QUT does not establish that the dismissal was a case of genuine redundancy, Dr Harrison must establish that his dismissal was unfair on the grounds that it was harsh, unjust or unreasonable.
By virtue of s.389 of the Act:
389(1) A person’s dismissal was a case of genuine redundancy if:
(a) the 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.
389(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 or an associated entity of the employer.”
[9] The Explanatory Memorandum states in relation to s.389 that the intention is that if a dismissal is a genuine redundancy, it will not be an unfair dismissal. 2 It is also clear that the only relevant considerations for determining whether a particular dismissal is a case of genuine redundancy, are those set out in s.385. There is no requirement for FWA to be satisfied in relation to matters such as whether the process by which an employee was selected for redundancy was otherwise fair.3
[10] Notwithstanding this narrowing of the circumstances in which a dismissal in a case of redundancy can be found to be unfair, the elements in s.389 go to both the decision that a job is redundant and the decision to dismiss a particular person, albeit only in the context of the requirements with respect to consultation and redeployment. In deciding whether a job is redundant, it is not a question of whether duties survive. What is critical is whether the holder of a previous job has any duties left to discharge following a restructure or reorganisation. 4
[11] If it is found that a dismissal is not a case of genuine redundancy, FWA must also be satisfied that the dismissal was harsh, unjust and unreasonable, before it can be found that the dismissal was unfair. In considering whether a dismissal was harsh, unjust or unreasonable, FWA must take into account the following matters as set out in s.387 of the Act:
(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees) and;
(b) Whether the person was notified of that reason; and
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and
(e) If the dismissal related to unsatisfactory performance – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) 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; and
(h) Any other matters FWA considers relevant.
[12] The issues for determination in this case are firstly whether the dismissal of Dr Harrison was a case of genuine redundancy. If the dismissal was not such a case, it is also necessary to determine whether the dismissal of Dr Harrison was harsh, unjust or unreasonable.
Evidence
[13] Evidence for QUT was given by:
Evidence was given by Dr Harrison on his own behalf.
[14] I have considered all of the evidence and set out below that which is relevant to the issues in dispute.
Operational Requirements of the employer’s enterprise
[15] Dr Harrison provided a history of the decision to cancel the Arts degrees which commenced in 1998, and drew a link with the closure by QUT of its Carseldine Campus. Up until 2007 there were two Arts degrees. According to Dr Harrison a decision to abolish new entries into the degrees was made and the era of a University of Technology with two Arts degrees was over. Essentially Dr Harrison’s evidence about this matter went to his disagreement and disappointment with the decision to cancel the Arts degrees rather than questioning whether this is what actually occurred.
[16] According to the evidence of Dr Bowman, until December 2007, QUT operated a School of Humanities and Human Services offering Humanities units, which were components of QUT’s Bachelor of Arts and Bachelor of Social Science Degrees. The School was located at QUT’s Carseldine Campus. In 2007 a decision was made to close the School with effect from 31 December 2007 and to discontinue both the Bachelor of Arts and Bachelor of Social Science Degrees (with some exceptions in the case of double degrees with a Bachelor of Arts component) with effect from Semester 1, 2008. At that time, Dr Harrison was employed as a Senior Lecturer in the School, teaching units in the area of Sociology.
[17] It was also decided that no new students would be enrolled in the Bachelor of Arts and Bachelor of Social Science Degrees, but that students already enrolled in those degrees would be supported and assisted in the completion of their studies. An interim organisational entity described as the Humanities Program was established to ensure that degree programs were delivered to existing students. Because of this requirement the decision to close the School of Humanities and Human Services did not immediately result in the redundancy of any roles. There was also a process to consider whether QUT should offer a new Bachelor of Arts Degree. In the latter part of 2008, it was decided that QUT would not pursue a new Bachelor of Arts Degree.
[18] Dr Harrison continued to teach the continuing students in the Humanities Program until the end of 2009. In 2009, Dr Harrison taught two units:
[19] The Sex Gender and Society Unit taught by Dr Harrison, was not offered past first semester 2009 and the Sociological Theory Unit was discontinued from 31 December 2009. Thus from 31 December 2009, all units previously taught by Dr Harrison were discontinued, and the job of Senior Lecturer in Sociology in the Humanities Program teaching those units was redundant. A list of Humanities Units in 2009 was Annexure “KB-19” to Professor Bowman’s statement in these proceedings, indicating that all units in the Social Sciences area, including those taught by Dr Harrison, were discontinued by the end of second semester 2009.
[20] Dr Harrison did not dispute any of this evidence, other than raising the following issues:
[21] Most of the issues raised by Dr Harrison related to his disagreement with these outcomes. There was no evidence before the Tribunal in relation to the assertion that any of the units previously taught by Dr Harrison still exist in the same form in other faculties.
Obligations for QUT to consult in relation to redundancy
[22] Dr Harrison’s employment was subject to the Agreement, which has effect as an Agreement based Transitional Instrument pursuant to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 5. Relevant provisions in relation to obligations to consult in relation to redundancy are found in the following clauses of the Agreement:
[23] Clause 45 of the Agreement deals with the subject of voluntary and involuntary redundancy. The clause is lengthy. Relevantly it provides that positions may be surplus to the University’s requirements for reasons of an economic, technological, structural or similar nature, including a decision to cease offering or to vary the academic context of any course or subject or combination or mix of courses or subjects conducted on one or more campuses. There is a provision for voluntary redundancy under which QUT may call for applications from staff members interested in voluntary redundancy or where appropriate, voluntary part-time employment. A call is to be made in writing including timelines relevant for the receipt, consideration and approval of applications and final termination date for approved applicants.
[24] Clause 45.3 deals with involuntary redundancy and provides as follows:
“Step 2 Involuntary Redundancy
Where the voluntary measures do not achieve the appropriate staff reductions as set out in the implementation plan, the University may identify specific positions as surplus. Following the identification of these positions the following process will occur:
(i) The University will hold discussions with the staff member(s) directly affected and where the staff member requests a staff representative(s). The discussions will take place as soon as practicable after the University has made a decision to declare the position(s) redundant and will cover the following:
• The reasons for the position(s) becoming surplus;
• Measures to avoid or minimise the redundancies including the feasibility of alternative employment arrangements; and
• Measures to mitigate any adverse effects on the staff member(s) concerned.
All relevant information and data will be provided to staff and where the staff member(s) requests a staff representative(s) to assist in the consultations.
(ii) Following these discussions and investigation of alternative employment arrangements, the Vice-Chancellor may formally notify a staff member(s) that their voluntary redundancy and whose application was rejected cannot be made redundant under the arrangements for involuntary redundancy.
(iii) Within ten (10) working days of notification, the staff member may elect one of the following options and notify the Vice-Chancellor in writing:
• agree to the redundancy and consult with the Authorising Officer as soon as possible to determine a termination date;
• seek redeployment in accordance with the relevant provisions of the University’s Policy on Redeployment; or
• seek review of decision to terminate.
Staff who accept involuntary redundancy will receive the benefits for involuntary redundancy as outlined in clause 45.5.1 payable on the day of their termination date.
Where a staff member elects to seek redeployment, and where at the end of the redeployment search period, the staff member has not been redeployed, the staff member will receive the benefits for involuntary redundancy outlined in clause 45.5.1 less the redeployment search period.”
[25] Clause 45.4 provides a process by which an employee may seek a review by a Redundancy Review Committee, of a decision to terminate in circumstances of involuntary redundancy on the grounds of:
[26] Redundancy benefits are set out in clause 45.5 which provides for a lump sum of 30 weeks salary plus:
[27] In the case of voluntary redundancy, there is an additional payment of eight weeks salary.
[28] The total amount of these payments is capped at 78 weeks. Accruals of annual leave and leave loading and long service leave where applicable, are also payable. Where an employee is subject to involuntary redundancy, the redundancy payments are in lieu of access to any redeployment scheme, and payments received by an employee pursuant to such a scheme for the period over which redeployment is attempted, are deducted from the redundancy payment.
[29] There is also a policy entitled Human Resources Workplace Change Management 6. That policy relates to how approved change processes are progressed at QUT. The policy provides a process whereby change management plans are developed, and for consultation and input into those plans from staff affected by a change process, and their representatives. Under the heading “Staff Support” there is a commitment that wherever possible, QUT will retrain staff and offer them future opportunities. In the event that redundancy cannot be avoided, redeployment and voluntary redundancy may be considered with involuntary redundancy being undertaken as a last resort. Each change management process is required to have a sponsor, and for significant projects the sponsor is to be a member of the senior staff group.
[30] A change management plan is required to include a number of elements, including details of the consultation with staff and representatives; means by which staff will be kept informed of the objectives of the project; timing and implementation of stages; and need for redeployment of staff and any redundancy implications.
Obligations of QUT in relation to redeployment
[31] There is a policy entitled Redeployment 7 and QUT is obliged to follow that policy by virtue of clause 46 of the Agreement. Essentially the policy in relation to redeployment provides that a staff member whose position is declared redundant will be given the opportunity to consider other options including redeployment before any attempt is made to terminate the staff member’s employment. The policy also requires QUT to make all reasonable efforts to redeploy staff whose positions are redundant to other available positions. Relevantly, the “Principles” of the Policy at 11.11.3 include the following requirement:
“(a) A staff member whose position is declared redundant will be given the opportunity to consider other options available, including redeployment, before any attempt is made by the university to terminate the staff member’s employment. The University will make all reasonable attempts to redeploy staff whose positions are redundant to other suitable available positions and will provide appropriate reasonable training or retraining to affected staff to assist redeployment following the identification of a suitable position.”
[32] At 11.3.5 under the heading “Redeployment procedures and process” there is a requirement that a staff member whose position has been declared redundant, be advised in writing of their options. There is a further requirement that one of the options available to the staff member will be to seek redeployment. Where a staff member elects to pursue redeployment, the staff member must advise of this in writing within ten working days of the notification of redundancy. A process is then set in train whereby endeavours are made to redeploy the staff member, with assistance from a case manager and the Human Resources Officer, within a redeployment search period. For academic staff that period is six months.
[33] Step 8 of the process provides that where the staff member has not been redeployed at the end of the six month redeployment search period, the employment of the staff member will be terminated, with appropriate entitlements under the redundancy provisions for involuntary redundancy of the relevant enterprise agreement, less the salary paid during redeployment.
The termination of Dr Harrison’s employment
[34] Professor Bowman’s statement in these proceedings 8 set out in detail the consultation process followed by QUT in the change process leading to Dr Harrison’s position being made redundant. The process can be summarised as follows. The Deputy Vice Chancellor Academic (then Professor Gardiner) met with staff from the School of Humanities and Human Services in October 2006 to discuss concerns about whether the School’s programs were viable, and the possibility that proposals would be developed that might affect the School.
[35] On 18 April 2007 the Vice-Chancellor reported to the University Council that changes were necessary, and a formal process of consultation commenced. A decision was made by the University Council in April 2007 that changes were required relating to the School of Humanities and Human Services, which could lead to job losses. Relevantly, the changes included:
[36] A series of emails were sent to staff about the proposed changes, seeking feedback from staff and students and stating inter alia that a draft change proposal document would be developed for consultation. There was discussion about the possibility of developing a new Arts degree, and there is reference in the statement of Dr Harrison and various documents appended to Professor Bowman’s statement, to a campaign to “save Arts at QUT”. By 21 August a draft change management plan was developed 9 stating that the aim of the plan was to reduce the number of academic positions directly involved in the delivery of the Humanities Program. A reduction is said to be necessary because of the closure of the School of Humanities and Human Services, and the discontinuation from 2008 of a commencing student intake in the Bachelor of Arts and the Bachelor of Social Science degrees as agreed by the University Council in July 2007.
[37] Under the Heading “Staff” the following appears:
“The strategy for achieving a reduction in staff includes a Voluntary Redundancy round which is scheduled to occur in September 2007. An involuntary redundancy round may be considered at some time in the future if necessary.”
[38] The plan goes on to refer to the transfer of academic staff who have demonstrated a strong connection with the Human Services Program to the Faculty of Health. A timetable for a voluntary redundancy round is also established, with 5 November 2007 being indicated as the date for staff to be advised of the outcome of such a round. The plan also states that the School of Humanities and Human Services will cease to exist on 31 December 2007, and that a new temporary entity will be crated to manage the ongoing affairs of the closed school.
[39] A final version of the change management plan was developed and released in December 2007 10. It is in similar terms to the earlier draft, with more detail. Included is a list of undergraduate units in the Human Services field that are to be transferred to the Faculty of Health. The units deal with topics related to social work, aged care, disability services and the like, and do not include those taught by Dr Harrison. It is also not apparent that any of the units to be transferred relate to the area of Sociology, and there was no assertion or evidence about this matter from Dr Harrison. Under the heading of “Humanities/Social Science” it is stated that there will be reductions equivalent to four to six academic positions and that the aim is to keep in existence sufficient staffing to allow ongoing students and enrolling double degree students to complete their chosen course. Under the heading “Staff” the following appears:
“The strategy for achieving a reduction in positions includes a Voluntary Redundancy round. The process for implementing job loss will be consistent with the Enterprise Bargaining Agreement for Academic Staff. Dependent upon the number of voluntary redundancies, 2008 final student enrolments in units offered by the School and a determination made about any new course that may be offered in 2009, the University will consider the requirement to make additional positions redundant in 2008.”
[40] There were numerous emails to staff informing them about the development of the Change Management Plan and how to access it on QUT’s intranet. There were also numerous emails inviting input and submissions in relation to the development of the Plan including time lines for those submissions to be lodged and reminders to staff about this process. These matters are detailed in the statement of Professor Bowman.
[41] In September 2008, the decision was taken that QUT would not pursue a new Bachelor of Arts Degree. The Deputy Vice Chancellor (Academic) met with staff in the Humanities Program at the Carseldine Campus on 19 September 2008, to inform them of this decision. Further meetings were held with those staff on 4 December 2008, 2 April 2009, 23 July 2009 and 7 September 2009. The latter meetings were held at the Kelvin Grove Campus where Humanities staff relocated after January 2009. The purpose of these meetings was to inform staff about the process of seeking to identify opportunities for redeployment for them and to answer any questions they had in relation to the change process.
[42] Professor Bowman said that he did not recall Dr Harrison attending any of these meetings, although he was invited to attend. Further Professor Bowman does not recall Dr Harrison asking any questions or raising any issues with him relevant to the process. Professor Bowman also updated the Change Management Plan and sent a new version to all Humanities Staff by email on 2 April 2009. The email stated that the purpose of the Plan was to allow further consultation and feedback from staff, and that written submissions on the Plan were invited by close of business on 17 April 2009 11. The updated plan reflects the decision not to offer a Bachelor of Arts Degree at QUT, and to withdraw from offer the remaining BA double degree combinations.
[43] There were several rounds of voluntary redundancies, whereby there was a call for applications from Humanities staff as follows:
[44] According to Professor Bowman, the second call for voluntary redundancies was made as a result of recognition that staff had concerns about security and certainty in relation to their employment and it was decided to accept applications for voluntary redundancy if it could be done while maintaining the capacity to support current students until the end of 2009.
[45] In September 2009, Professor Bowman offered to meet with staff to discuss issues including voluntary redundancy and the consultation process and to update them on redeployment possibilities. Professor Bowman indicated that he would attend the Kelvin Grove Campus for the purpose of conducting these meetings. Dr Harrison did not take advantage of this invitation. A schedule of meetings on Wednesday 2 September 2009, prepared by Professor Bean, head of the Humanities program, was tendered. That schedule states that one staff member, Paul Harrison did not wish to schedule a meeting with Professor Bowman and would consider the matter and advise if he did wish to have a meeting. 12
[46] On 14 September 2009, a letter was forwarded to Dr Harrison under the signature of QUT’s Human Resources Director, informing him that his position would be redundant from 31 December 2009. The letter encouraged Dr Harrison to seek information about his redundancy entitlements from a Senior HR Advisor and referred him to relevant sections of the Agreement. 13 This information was again relayed to Dr Harrison in a further letter of 12 November 2009.14
[47] On 17 December 2009, at 2.15 pm, Dr Harrison sent an email to Professor Bowman seeking to take up the offer of consultation regarding his involuntary termination and asking for an appointment as soon as possible. 15 Professor Bowman and Ms Banney met with Dr Harrison on 21 December 2009. At that meeting, Dr Harrison indicated that he was not voluntarily being made redundant. Professor Bowman and Ms Banney said that they acknowledged that this was the case and offered Dr Harrison two options:
[48] Under that policy Dr Harrison would have been entitled to remain employed during a redeployment period of up to six months. If redeployment was not possible within that period, Dr Harrison’s employment would have terminated and his redundancy entitlements would be reduced by an amount of eight weeks severance and by the amount of the salary paid to him during the redeployment period. Dr Harrison informed Ms Banney and Professor Bowman that he wished to consider these options and take advice about them and undertook to respond by close of business on 22 December 2009. No notification was received from Dr Harrison by the agreed time, and it was assumed that he did not want to withdraw from the voluntary redundancy process.
[49] Dr Harrison’s employment ceased on 31 December 2009 and he was paid a redundancy payment calculated in accordance with QUT’s benefits for voluntary redundancy of 78 weeks salary, amounting to some $178,634.00 before tax and $143,071.73 after tax. According to Professor Bowman, voluntary redundancy entitlements were paid, so that the most generous level of benefit available under QUT’s policies could be paid.
[50] Dr Harrison sent an email to Professor Bowman on 24 December at 11.27 am in the following terms:
“As noted at our meeting of the 21st of December:
1. I have not at any stage applied for a voluntary redundancy. 2. I have concerns regarding the letter sent to me in September 2009. 3. There is always the possibility of reassignment.
There is a history position free in the Faculty of Education. I am an historical sociologist fluent in French and German with an extensive academic record in European matters. As a person trained in development studies I have as well extensive training in north-south issues. I have also studied the historical sociology of Japanese development and published in a monograph edited by two leading Japanese studies experts. I am free to discuss these matters either next week, or given the university will be closed, in the first week of the new year.”
[51] Ms Banney responded to the email on behalf of Professor Bowman who was absent on leave, by letter of 6 January 2010 16. Ms Banney’s letter to Dr Harrison states inter alia that:
[52] Dr Harrison was requested to advise Ms Banney by 5.00 pm on Friday 8 January 2010, whether he wished to seek redeployment to a suitable position within the University, consistent with its policy. The letter went on to state that where a suitable position could not be located during the redeployment period employment would be terminated, with appropriate entitlements for involuntary redundancy, and that the entitlements for involuntary redundancy is 8 weeks salary less than the amount payable as voluntary redundancy. It was further pointed out that if Dr Harrison opted to seek redeployment he would be required to immediately repay the voluntary redundancy entitlement paid to him on 30 December 2009. Dr Harrison did not respond to this letter and filed an application with FWA seeking a remedy for his unfair dismissal.
[53] Dr Harrison said that the Vice Chancellor had proposed at the beginning of 2009 that there would be offers of employment in other faculties, a voluntary redundancy round, and only then something other than voluntary redundancy might occur. According to Dr Harrison there was a sudden switch to involuntary redundancies after years of reassurance that this would not occur.
[54] In relation to consultation, Dr Harrison said that he arrived at work on the day of the meeting with Professor Bowman in early September, and only had a couple of hours notice of the meeting by way of a “hurried” email on the morning of the meeting. Dr Harrison did not have time to prepare for the meeting or to bring a representative of any kind. There was no agenda for the meeting. This was unacceptable to Dr Harrison and in his view the meeting was intended to function as a “surprise”. Dr Harrison had a discussion with the head of the program and was informed that Professor Bowman was going to tell him that he was to be sacked. Dr Harrison asked whether this was the only thing he was to be told, and when the head of the program confirmed that this was the case, Dr Harrison concluded that there was no point hearing the same thing twice and that he would not attend the meeting with Professor Bowman. Dr Harrison agreed in cross-examination that the Schedule prepared by Professor Bean 17 accurately indicated what he told Professor Bean about not wanting a meeting with Professor Bowman. Dr Harrison also agreed that he did not ask Professor Bowman to meet with him until December 2009.
[55] Dr Harrison also said under cross-examination that he was waiting for written advice from Professor Bowman as to what his decisions were and was hoping for some sort of revised change management plan. Dr Harrison also said that he was expecting a letter from personnel saying that he had been made redundant. In response to the proposition that he had access to the written version of the Change Management Plan, Dr Harrison said that this was a document about process and he wanted written advice about substantive outcomes and how they had been determined. Dr Harrison contacted the Union and requested that Professor Bowman be asked to provide written information, but did not contact Professor Bowman directly in relation to this request.
[56] In relation to the letter of 14 September 2009, Dr Harrison said in cross-examination that by the time he received that letter he had looked at legal documents and expected that the letter would state that he was involuntarily redundant. Dr Harrison sought legal advice after he received the letter dated 12 November 2009, and took some time to obtain that advice because of difficulty finding a lawyer who was an accredited workplace specialist. Dr Harrison did not see the lawyer until 17 November 2009.
[57] Dr Harrison did not agree that he was offered the option of participating in the redeployment program at the meeting with Professor Bowman and Ms Banney on 21 December 2009. Dr Harrison maintained that the message he received was that QUT did not have confidence in the redeployment process. Dr Harrison also said that his view was that if redeployment was an option, it should have been outlined in the letter of September 2009. Dr Harrison said that he looked at the offer of 6 January but by the time he got around to responding, QUT may have cut off his email. Further, Dr Harrison did not respond to the offer of 6 January 2010 because he thought that it was made in bad faith on the basis that he was told at the meeting of 21 December that the process of redeployment did not work. Dr Harrison said that he declined the offer by his inaction, and that he did not know whether he would have accepted the offer of redeployment if it had been made in September 2009.
Redeployment
[58] Professor Bowman gave evidence about extensive consultation that he undertook with the Heads of other faculties, in an attempt to identify redeployment opportunities for Humanities staff. One academic staff member was redeployed to the Department of History. Another employee with close involvement in the research activities of the Creative Industries Faculty was redeployed to that Faculty. Two other staff members were retained in co-ordination roles to assist existing students to complete their degrees. No opportunity for redeployment was identified for Dr Harrison. According to Professor Bowman, Dr Harrison’s Doctorate is in Sociology. There was a position for a history lecturer in the Faculty of Education, for which Dr Harrison was not qualified. A Doctorate in history was a minimum requirement for that position.
[59] Dr Harrison said that by paying more money under the voluntary redundancy policy, QUT was discouraged from fully investigating redeployment. Dr Harrison also gave evidence about other staff who were redeployed, maintaining that this process was arbitrary and lacking in transparency. Further, Dr Harrison said that at the beginning of 2009, he was placed in a group with three other people for possible transference to other faculties of the University. In September 2009 it was decided that this would not occur and instead the other three people were given positions “invented out of thin air to look after the affairs of the discontinued Humanities Program into 2010 and beyond, on slightly different terms for each.” According to Dr Harrison the group was axed and he was not given an opportunity to represent himself personally for any other position in the university. The decision to dismiss Dr Harrison and to give the other members of the group new positions was made on the same day, and no consultation with Dr Harrison was undertaken about this matter.
[60] Dr Harrison submitted that the letter of 14 September 2009, informing him that his position was redundant, contained no offer of redeployment. Such an offer was not made until after the meeting with Professor Bowman and Ms Banney in December 2009. When the offer was made, there was a short time frame provided for acceptance, and Dr Harrison had been made to understand that it was a futile undertaking.
Conclusions
[61] It is clear that QUT no longer require Dr Harrison’s job to be done by anyone and that this is because of operational changes to QUT’s enterprise. Dr Harrison was a senior lecturer in Sociology and taught units offered as part of Bachelor of Arts and Bachelor of Social Science degrees in QUT’s Humanities Program. It was decided that the School in which those courses were offered would be closed and no new students would be enrolled. The decision was taken in accordance with the established decision making processes of QUT. Dr Harrison continued to teach existing students up until 31 December 2009, when the units he taught were discontinued.
[62] At that point, Dr Harrison’s role as a Senior Lecturer in the Humanities Program was redundant, because QUT no longer had such a program and accordingly had no need for a senior lecturer in Sociology. It is difficult to envisage a clearer case of an employer no longer requiring a person’s job to be done by anyone because of changes in the operational nature of the employer’s enterprise. Accordingly the requirement in s.389(1) (a) of the Act is met.
[63] The second element in s.389(1)(b) in relation to the requirement for QUT to comply with obligations in the Agreement with respect to consultation, has not in my view, been met. The Agreement contains detailed provisions about consultation. QUT did not fully comply with the requirements of those provisions. I accept that QUT consulted extensively about the basis of and the rationale for the decision to close the School of Humanities and Human Services, and the process by which the closure would be implemented. I also accept that QUT met its obligations with respect to general consultation and information to staff about the fact that redundancies would be required and the process by which they would be implemented. As such, QUT met its obligations under clauses 9, 10 and 11 of the Agreement.
[64] I am also satisfied that QUT met its obligations under clause 45.3 of the Agreement. This provision required QUT to hold discussions with the staff members directly affected as soon as practicable after a decision to declare positions redundant. A meeting was held on 2 September 2009, to which Dr Harrison and other staff were invited. That meeting was preceded by a series of meetings and written communication through which it was made clear that involuntary redundancies would be required. It was reasonable that discussions about redundancy would be conducted in this way, and that the Assistant Vice Chancellor (Academic) would hold the necessary discussions with staff. Dr Harrison decided not to attend the meeting and his view as expressed to the Head of the Humanities Program, Professor Bean, was conveyed to Professor Bowman. Dr Harrison decided not to attend the meeting with Professor Bowman in the face of detailed written communication indicating that redundancies, both voluntary and involuntary, were going to be implemented and following information received from Professor Bean that his position was redundant. In these circumstances, Dr Harrison’s refusal to attend a meeting conducted by QUT to meet its obligations to consult with him about his position being redundant, cannot constitute a failure to consult on the part of QUT.
[65] However, the Agreement also required consultation with Dr Harrison about the redeployment process and his options under it. I am unable to accept that QUT met its obligations to consult with Dr Harrison on these matters. Dr Harrison did not opt to take a voluntary redundancy. As such, the redeployment policy required that when Dr Harrison’s position was declared redundant, he be given the opportunity to consider other options, including redeployment, before any attempt was made to terminate his employment. Further, the redeployment policy required that Dr Harrison be advised in writing of his options, including the option of availing himself of the redeployment process. The policy was required to be followed by virtue of the terms of the Agreement and advice about it was an important aspect of consultation with Dr Harrison about his redundancy. QUT did not comply with this requirement.
[66] It is not to the point that the redeployment process was offered to Dr Harrison orally in December 2009 and/or in writing in January 2010. By virtue of the clear terms of the Agreement, QUT was required to provide in writing to Dr Harrison all of his options with respect to redundancy, including redeployment, prior to making any attempt to terminate his employment. It is not to the point that the redeployment process would probably not have resulted in an opportunity being identified for Dr Harrison to be redeployed. The right to have information on all options relevant to a redundancy is a significant one. An employee may well decide that it is preferable to seek other employment while he or she is employed, and to take advantage of assistance and support offered under the terms of QUT’s Redeployment Policy. The Redeployment Policy does not limit employees to seeking employment within QUT during the redeployment search period. Employees may consider that they have greater opportunities to obtain employment outside QUT while still employed by QUT, as opposed to applying from the position of being unemployed.
[67] It is also not to the point that Dr Harrison received a higher redundancy payment on the basis that QUT applied the voluntary redundancy provisions of the Agreement in his case. There may be employees who would benefit from higher redundancy payments, and others who would benefit more from accessing the redeployment process. The point of the policy is to provide employees with an informed choice involving consideration of all options, before any action is taken to terminate their employment. This choice, and the opportunity to properly consider it before his employment was terminated, was not provided to Dr Harrison in the form required by the terms of the Redeployment Policy as referenced in the Agreement.
[68] The letter of 14 September 2009, informing Dr Harrison that his position would be redundant with effect from 31 December 2009, made no reference to the option of redeployment. Dr Harrison is referred to the Agreement only as a source of his redundancy entitlements. The letter makes it clear that the decision that Dr Harrison will be dismissed with effect from 31 December 2009 has already been made, and that the only outstanding matters are practical arrangements for his departure. The letter also refers to Dr Harrison’s voluntary redundancy entitlements in circumstances where he has not volunteered for redundancy. There is no written reference to or offer of access to the redeployment policy made to Dr Harrison prior to the letter of 6 January 2010. By that time QUT had gone well beyond attempting to terminate Dr Harrison’s employment and had in fact done so. This conduct on the part of QUT was not consistent with its obligations under the Agreement and the Redeployment Policy required by the terms of the Agreement to be followed. The consultation process miscarried to such an extent that I am not satisfied that QUT complied with all of its consultation obligations in the Enterprise Agreement as required by s.389(1)(b).
[69] The question of whether QUT has met the requirements in s.389(2) of the Act with respect to taking reasonable steps to redeploy Dr Harrison is more problematic. It was submitted for QUT that these requirements will be met if the employer has considered options for redeployment of the person within its business or an associated business and has not identified a reasonable redeployment option. I do not accept that this is an appropriate formulation of the requirements in that section. The established approach in relation to s.389 is that the words of the section need to be applied to the circumstances of the case, and that no alternative formulation of the test should be attempted. 18
[70] Section 389(2) of the Act does not require only an assessment of what steps the employer took in relation to redeployment. Rather the focus is on whether, in all of the circumstances of the particular case, redeployment would have been reasonable. I accept Professor Bowman’s evidence to the effect that there were no redeployment opportunities for Dr Harrison within QUT and that positions in other faculties required qualifications which Dr Harrison did not possess.
[71] However, I have great difficulty accepting that there can be any real consideration of options for redeployment in the sense required by s.389(2) of the Act, and a conclusion that no reasonable redeployment options are open, in circumstances where there has been no consultation or discussion with the person concerned about these matters, before the decision to terminate the person’s employment has been made. This is particularly so in the present case, where there was a requirement in the Agreement (an enterprise agreement for the purposes of s.189(1)(b)) to inform Dr Harrison about the options of participating in the redeployment process. The failure on the part of QUT to do this means that I am unable to accept that the requirements of s.389(2) have been met.
[72] Accordingly, I am not satisfied that QUT has established pursuant to s.385(d) that Dr Harrison’s dismissal was a case of genuine redundancy, such that it is withdrawn from the unfair dismissal provisions of the Act. It is therefore necessary to decide whether Dr Harrison’s dismissal was unfair on the basis that it was harsh, unjust or unreasonable. In my view the dismissal of Dr Harrison was not unfair on the ground that it was harsh, unjust or unreasonable. There was a valid reason for the dismissal. Dr Harrison’s position was redundant. The units he taught were discontinued and he had no duties to discharge. Dr Harrison was notified of the reason for his dismissal. Although the consultation undertaken by QUT was deficient for the purposes of s.389(2) of the Act, there can be no doubt that Dr Harrison was clearly advised that his position was redundant and that his employment was to be terminated as a result. The reason was not related to Dr Harrison’s capacity, conduct or work performance. There was no refusal, reasonable or otherwise, for Dr Harrison to have a support person present at discussions about his dismissal. QUT is a large employer with dedicated Human Resource Management specialists and these matters are not relevant considerations in the present case.
[73] In my view, the following matters are also relevant to consideration of whether the dismissal of Dr Harrison was harsh, unjust or unreasonable. The failure of QUT to properly consult Dr Harrison in relation to redeployment does not change the fact that there were no opportunities for redeployment. It was apparent from the evidence that the positions pointed to by Dr Harrison as possible redeployment opportunities were positions that had essential selection criteria that he did not meet. It is also the case that Dr Harrison was offered redeployment, albeit belatedly, and did not take up this option. I am also of the view that the evidence in this case established that it is more probable than not that had Dr Harrison taken the option of redeployment, he would have been dismissed at the end of the six month redeployment search period and his redundancy pay would have been reduced by six months’ salary and he would not have received the eight weeks’ additional severance payment.
[74] Although Dr Harrison did not agree to voluntary redundancy, by failing to respond to the offer to access the redeployment process in January 2010, he accepted a voluntary redundancy payment that was higher than the payment which would have attached had he chosen the option of involuntary redundancy preceded by that of redeployment.
[75] There was no evidence of personal factors that made the dismissal harsh, so that on balance it would be found to be unfair. By any standard Dr Harrison received a generous redundancy package. There is no evidence of any unusual difficulty in obtaining alternative employment.
[76] In all of the circumstances, Dr Harrison’s dismissal was not harsh unjust or unreasonable. Dr Harrison’s application for an unfair dismissal remedy is dismissed. I Order accordingly.
COMMISSIONER
Appearances:
Dr P. Harrison on his own behalf.
Mr D. Williams on behalf of the Respondent
Hearing details:
2010.
Brisbane:
May 24.
1 Nalevansky v Thought Equity Motion Inc. [2010] FWA 3707; Iannello v Motor Solutions Australia Pty Ltd [2010] FWA 3125.
2 Fair Work Bill 2008 Explanatory Memorandum paragraph 146.
3 Fair Work Bill 2008 Explanatory Memorandum page 247.
4 Nalevansky v Thought Equity Motion Inc. [2010] FWA 3707 at [18] Per Watson VP citing [2010] FWAFB 3488 at [15] - [20]; Jones v Department of Energy and Minerals (1995) 60 IR 304; and Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674.
5 Exhibit 4 Statement of Jane Banney Annexure “JB-1”.
6 Exhibit 4 Statement of Jane Banney Annexure “JB-2”.
7 Exhibit 4 Statement of Jane Banney Annexure “JB-3”
8 Exhibit 1 Statement of Kenneth Bowman.
9 Exhibit 1 Statement of Kenneth Bowman Annexure “KB-10”.
10 Exhibit 1 Statement of Kenneth Bowman Annexure “KB-11”
11 Exhibit 1 Statement of Kenneth Bowman Annexure “KB-18”
12 Exhibit 2.
13 Exhibit 1 Statement of Professor Bowman Annexure KB-21.
14 Exhibit 1 Statement of Professor Bowman Annexure KB-22.
15 Exhibit 1 Statement of Professor Bowman Annexure KB-23.
16 Exhibit 1 Statement of Kenneth Bowman Annexure KB-26
17 Exhibit 2.
18 See Nalevansky v Thought Equity Motion Inc. [2010] FWA 3707 and the authorities cited in that decision at [18].
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