D'Souza v Secretary of the Department of Transport

Industrial Relations Commission (NSW)|2020-02-13|Before: Mr J

Judgment

Joseph D'Souza, the applicant, was employed with Transport for NSW ("TfNSW") from 25 October 2013. On 27 September 2019 his employment was terminated after a restructure in the organisation resulted in his role becoming redundant.
On 18 October 2019 Mr D'Souza filed an application for relief in relation to unfair dismissal ("Application"), in accordance with s 84 of the Industrial Relations Act 1996 (NSW) ("Act"). In summary, Mr D'Souza alleged that he had been compelled into accepting voluntary redundancy under threat that he would otherwise be forced into medical retirement, and that the dismissal was in any event affected by age discrimination. Mr D'Souza seeks reinstatement.
The hearing took place on 13 February 2020. Mr D'Souza was self-represented. Mr J Zeng of the TfNSW Legal Branch appeared for the respondent.

Name of respondent

The Application named the respondent as "Transport for New South Wales". Pursuant to s 68C(3) of the Transport Administration Act 1988 (NSW) the Secretary of the Department of Transport ("Secretary") exercises on behalf of the Government of New South Wales the employer functions of the Government in relation to the persons employed in the Transport Service. The Secretary is the proper respondent to these proceedings.

Conduct of proceedings

Mr D'Souza represented himself in the proceedings. I regarded myself as bound to follow the guidance given by the Court of Appeal in Hamod v State of New South Wales & Anor [2011] NSWCA 375 at [309]: "Courts have an overriding duty to ensure that a trial is fair… In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented…"
In these proceedings that approach led to me adopting a reasonably informal approach to the proceedings. I was also more active than might otherwise have been the case in assisting Mr D'Souza to adduce his evidence and articulate his submissions, and in clarifying some of the Secretary's evidence. I took these steps as I wished to be certain that Mr D'Souza had every opportunity to put his case in full, and to be certain that I had understood his case in full. I am satisfied that both these objects were met.
Mr D'Souza relied on two statements he had prepared, and filed with the Commission on 12 December 2019 and 21 January 2020 respectively. They were a combination of evidence and submissions, and it must respectfully be said, recognising that Mr D'Souza is unrepresented, that they did not present a coherent narrative of events, much less a clear articulation of why he alleges that his dismissal was harsh, unreasonable or unjust. It was necessary to glean his case from the material filed and to clarify his position during the hearing.
The Secretary read a statement of Rosemary Frances Crothers dated 10 January 2020. The statement attached some 418 pages of attachments, although little if any direct reliance was placed on that material. The Secretary also relied on a written outline of submissions.

Factual background

Other than to the extent stated below, the facts of this matter are not greatly in dispute.
Mr D'Souza's employment with TfNSW commenced on 25 October 2013, although he had been employed with the Government of New South Wales since 6 August 2001. He was employed in TfNSW as a Shared Services Officer Accounts Payable Grade 4 within Procurement Services, which is a function of "Transport Shared Services". Transport Shared Services is in turn a branch of the Corporate Services division of TfNSW.
In October 2017, ICENI Group was engaged by TfNSW to conduct an independent review of Procurement Services. A report was published by ICENI on 24 January 2018 which identified a number of areas in which Procurement Services could be improved. The report was the subject of a briefing to staff in Procurement Services on 7 February 2018.
Ms Crothers deposed as follows: "36. Following the independent review of the Procurement Services function by ICENI Group which identified the key business challenges for improving the goods and services procurement function, a number of the recommendations were accepted and a new organisational structure was proposed for consultation. This process was led by the Director Procurement at the time. This proposal also included the establishment of Strategic Procurement within the Corporate and Commercial Strategy Branch in line with the recommendations of the ICENI which would reduce the demand on Procurement Services by Transport Shared Services. 37. As part of the new structure being proposed, with the changes outlined above and improvements in efficiencies and processes, it was identified that of the existing 186 employees within Procurement Services, that there would be a full time equivalent (FTE) reduction of 63 roles. 38. In relation to Grade 4 roles, there would be a reduction of 72 roles and that the new structure as proposed would have 27 Grade 4 roles down from 99. This represents a reduction of 72.72% of Grade 4 roles. … 41. The NSW Government through the NSW Department of Premier and Cabinet has issued guidelines for Agencies on Agency Change Management issues. ln accordance with the Agency Change Management Guidelines and as there were less positions in the proposed structure than the number of existing staff, the approach required to be taken would involve all existing employees who are interested in a role in the new structure to apply for the new role. This would then allow the agency to rank existing employees on order of merit for appointment to roles in the new structure. … 43. Existing employees within Procurement Services impacted by the restructure were entitled to priority assessment and a decision was made by the Executive Director Transport Shared Services that the process undertaken would involve three stages: a. Firstly, staff impacted by the restructure would be entitled to be priority assessed for new roles in the new structure at the same grade; b. Secondly, impacted staff at other Grades would be entitled to be assessed for any new roles that remain vacant in the new structure following completion of stage 1; and c. Thirdly, if any roles still remained vacant only then would the roles by publicly advertised and be open to external candidates."
One of the managers above Mr D'Souza in the organisational hierarchy was Donna Rodrom. He described her role as "Principal Manager, AP - TSS", which I take to refer to Accounts Payable in Transport Shared Services.
Mr D'Souza described having a difficult relationship with Ms Rodrom, stemming from incidents which occurred at or about the time she joined Transport Shared Services.
On 13 September 2018 Mr D'Souza attended a meeting with Kayalin Singleton, the Acting Manager Invoice and Claims Processing in Procurement Services. Mr D'Souza claimed that this meeting was organised at the request of Ms Rodrom. The material attached to his statement suggests that during the meeting concerns were raised as to his state of health and he was asked whether it was time to consider retirement.
On 14 September 2018 Ms Singleton sent an email to Mr D'Souza, with a copy to Ms Rodrom, in the following terms: "As promised, I am sending this email as confirmation of what we covered in our meeting yesterday (13/9/18). As you know, you have been experiencing a variety of health issues for some time, for which you have been seeking medical treatment. Unfortunately, this has impacted on your overall work performance and attendance. This is exemplified by the two occasions in the last week, when you have fallen asleep; once at your desk and once in the team meeting. We are all concerned for your health and it is our duty of care to ensure your well-being. With this in mind, it may be an opportune time for you to consider retirement. Donna will be back in the office on Monday, so we book time in to talk through with you and offer any support you may need." (Sic)
In an email in reply sent on the same day, Mr D'Souza denied the suggestion that he had fallen asleep at work. He challenged the conclusion that he consider retirement as being "illegal, unreasonable and unnecessary".
On 17 December 2018 the Director of Procurement presented the new proposed Procurement Services functional model and proposed leadership structure to staff in Procurement Services. Consultation regarding the new structure took place between December 2018 and the end of January 2019, during which staff had the opportunity to provide feedback.
On 30 January 2019 the process of consultation regarding the impact of the restructure on non-executive employees commenced, with six briefing sessions (by teams) being held for all Procurement Services staff on the proposed structure and roles. A three week consultation period commenced allowing affected staff to provide feedback.
During this period Mr D'Souza was offered and took advantage of training, including an interview techniques workshop and a job application skills workshop. He was paid for his attendance at that training.
On 1 April 2019 Mr D'Souza was called to a meeting with Ms Rodrom. He described the meeting in the following terms: "On 1.4.19 Donna Rodrom, who had earlier accepted a VR Package, had Dean Greethead, Manager Invoice and Claims summon me for a meeting at which Dean was present throughout and demanded/insisted that I do not re-apply for my job in the Restructure. I requested her to let matters run their course. Donna Rodrom [then] picked up some papers in front of her on the table and told me that these were my medical record papers and that if I still chose to re-apply for my job that she would use those papers to force me into Medical Retirement/Redeployment. Again I asked Donna to let matters run [their] course, to no avail. I also asked her how/why it was that since she had accepted a VR Package a month or 2 earlier, that she was still functioning in an operational [sic]. Donna then told me that this was okay with her and that the Office also allowed this."
Mr D'Souza stated that following this meeting, but on the same day, he sent an email to his union, the Public Service Association, reporting on what had occurred. That email is not in evidence.
On 16 April 2019 Mr D'Souza had a conversation with Ms Crothers. There was some difference between them as to what was said. Mr D'Souza stated that he told Ms Crothers of the "contents" of his meeting with Ms Rodrom and Mr Greethead on 1 April 2019. He deposed as follows: "Ms Rose Crothers asked me if I wished her to take up the matter of this incident of 1.4.19 with Donna Rodrom, on my behalf, I said no as I have reported a wrong to her and it is now for her to decide what is the right thing to do."
Ms Crothers deposed that Mr D'Souza told her that Ms Rodrom was "trying to make [him] take a VR". When she asked him whether he would like her to raise it with Ms Rodrom he said "No, it is done." Ms Crothers also deposed that she told Mr D'Souza that the choice as to whether to choose voluntary redundancy or redeployment was a matter for him.
Ms Crothers further stated that during the conversation Mr D'Souza said to her: "I know I don't have a job. I want to take VR what I want to see if I can stay for another six months before taking VR. Can I do this?"
Mr D'Souza could not recall, but did not deny, making these statements.
Later on 16 April 2019 Mr D'Souza was handed a letter signed by Craig Webster, the Executive Director Shared Services of Transport Shared Services which included the following: "The new structure of the Procurement business unit has been determined. Under the determination, your current substantive role of Share Services Officer Accounts Payable (50002233) will no longer be required. You are encouraged to apply for vacant positions in the new structure and any internally or externally advertised positions. Information in relation to recruitment positions and timing will be made available to all staff through ongoing communications."
Between 16 May 2019 and 14 August 2019 Mr D'Souza unsuccessfully applied for six roles in the new organisational structure.
Mr D'Souza deposed that throughout this period he raised concerns with management regarding his meeting with Ms Rodrom on 1 April 2019. He claimed that in or about June 2019 he sent to Nicole James, who took over from Ms Rodrom (who had by then departed, having accepted a voluntary redundancy), a copy of his email to the Public Service Association of 1 April 2019. Mr D'Souza's email to Ms James is not in evidence.
On 8 August 2019 Mr D'Souza met with Narelle Monaghan, then the Acting Executive Director Shared Services of Transport Shared Services. He stated that during the conversation he "discussed the matter of the incident with Donna Rodrom and Dean Greethead present on 1.4.19 and also my subsequent meeting with Ms Rose Crothers on 16.4.19".
On 12 August 2019 Mr D'Souza sent an email to Albert Bass, the Acting Deputy Executive Director for Finance and Procurement. In his email Mr D'Souza purported to quote from an email which he claimed to have sent to Ms Monaghan on 8 August 2019. The quoted passage included the following: "Good Afternoon Narelle, I appreciate our meeting today (8.8.19) morning at 9.00 a.m. in which I was able to speak and show you e-mails of details of the meeting conducted by Donna Rodrom, with Dean Greethead present, of bias and a threat, that I consider ended in my being held unsuccessful and in the Office's decision to consider me excess, and therefore should be nullified. As to your query as what I thought Donna had in mind for her action(s) and why, I do not know, she is the only one who can provide you with her answer. Rose Crothers was verbally informed on 16.4.19 of the meeting of 1.4.19 with Donna, Dean and myself…"
On 21 August 2019 Mr D'Souza was informed that TfNSW intended to declare him excess and that he would be invited to a redeployment induction over the next one to two weeks. That induction was later arranged for 29 August 2019, which Mr D'Souza did not attend.
On 28 August 2019 Mr D'Souza sent an email chain to Trudy Mares, who had been appointed the Executive Director Shared Services of Transport Shared Services. The email chain included his email to Mr Bass of 12 August 2019.
On 30 August 2019 Joanne Slater, a Redeployment Specialist, People and Culture in TfNSW sent an email to Mr D'Souza attaching a letter dated the same day. The letter informed Mr D'Souza "that you no longer have an ongoing role and are an excess employee from the date of this letter"; that he could choose between two options: accept an offer of voluntary redundancy, or pursue redeployment in the Government Sector during a three month retention period; that if he accepted the offer of voluntary redundancy his last day of service would be 26 September 2019; and, that the offer of voluntary redundancy was open until 12 September 2019.
In her email Ms Slater informed Mr D'Souza that she would be rescheduling his redeployment induction to a time the following week. That redeployment induction was subsequently scheduled for 2 September 2019. Mr D'Souza did not attend that induction.
On 2 September 2019 Mr D'Souza sent an email to Ms Slater in which he stated that his "preferred choice" was voluntary redundancy, and not redeployment.
On 10 September 2019 Mr D'Souza sent an email to Shane Howes of the Public Service Association and Mr Bass in the following terms: "Good Afternoon Shane, At 12.05 noon today 10.9.19 Nicole James had Dean Greethead call me for a meeting. She said that she had a call from HR - Daniel Shean to tell me that I must make my choice and submit my application for a Voluntary Redundancy by this Friday 13.9.19, whereas the form says by 5.00 p.m. on 12.9.19, if not, I would be forced into Redeployment at a lesser package. Nicole repeated this twice more and asked me if I understood what she had said."
On 12 September 2019 Mr D'Souza completed an Excess Employee Voluntary Redundancy or Redeployment Acceptance Form. He ticked the box indicating that he wished to accept the voluntary redundancy offer and "voluntarily terminate his services with TfNSW" on 26 September 2019. At the foot of the page he made the following notation: "I enclose my signed application for a VR Package, under protest, in view of the adverse documented conditions that occurred both prior and during the time of my being declared excess staff."
It appears that nothing was done in consequence of Mr D'Souza including that notation on the form.
Later on 12 September 2019 Mr D'Souza requested that his last day of employment be Friday, 27 September 2019 as opposed to Thursday, 26 September 2019. This was approved. A request for a further extension was declined.
Mr D'Souza's employment with TfNSW came to an end on 27 September 2019. There is no suggestion that he received anything less than his contractual and statutory entitlements on termination.
Mr D'Souza was one of a significant number of people whose employment with TfNSW came to an end as a result of the restructure.
Mr D'Souza is 79 years of age.

Submissions

Mr D'Souza's case can be distilled to the following assertions: 1. He never enjoyed a particularly good working relationship with Ms Rodrom, having got off on the wrong foot with her (to use the vernacular) soon after she joined Transport Shared Services. 2. In September 2018 he came under pressure from Ms Singleton, apparently acting at the behest of Ms Rodrom, to "consider retirement". 3. Following an announcement of the restructure of Procurement Services, Ms Rodrom told him on 1 April 2019 to take voluntary redundancy or she would force him out through medical retirement or redeployment. This evidenced bias on Ms Rodrom's part, and constituted a threat, so as to "nullify" all that happened thereafter. 4. His complaints about Ms Rodrom's behaviour to other managers - Ms Crothers, Ms Monaghan, Mr Bass, Ms Mares and Ms James - were either ignored or left unaddressed. 5. He was placed under undue pressure from Ms James, Ms Rodrom's replacement, to choose between voluntary redundancy or redeployment. 6. On 12 September 2019 he opted to accept voluntary redundancy "under protest". 7. He has been the subject of "rampant Age Discrimination" in an organisation that was "determined to push [him] out of the Office with callous and undue haste".
Mr D'Souza sought reinstatement to his position with TfNSW. In the Application he stated that he can and will return to TfNSW the monies paid to him on termination of his employment.
The Secretary denied that the dismissal was harsh, unreasonable or unjust. He submitted that Mr D'Souza's dismissal was a case of genuine redundancy.
The Secretary's submissions included the following: 1. Mr D'Souza's position was made redundant following an independent external review of the Procurement Services area and a new organisation structure being implemented in response to that review. 2. TfNSW provided over 12 months' notice to affected employees. 3. TfNSW consulted extensively with impacted employees and with the unions representing them. 4. TfNSW explored alternatives to redundancy for Mr D'Souza prior to declaring him excess. This included given Mr D'Souza the opportunity, which he took, to apply for a number of roles in the organisation. In respect of some of those roles he had the benefit of priority assessment. Had he not accepted voluntary redundancy on 12 September 2019 Mr D'Souza would have had a further three months retention period to find alternative employment in the whole of the Government Sector. 5. Mr D'Souza received fair and reasonable redundancy benefits. 6. Mr D'Souza was provided time off to seek alternative employment within TfNSW as well as time off to undertake retraining and to attend information sessions on the process for "excess" employees. 7. There is no basis for the allegations that Mr D'Souza was unfairly targeted or selected for redundancy, or that he was the subject of unlawful discrimination. 8. Mr D'Souza's purported acceptance of voluntary redundancy "under protest" is inconsistent with him having immediately commenced negotiations to extend his departure date.

Legal Principles

This matter is brought under s 84 of the Act, which relevantly provides as follows: 84 Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part.
To be entitled to any remedy under the Act the onus is on Mr D'Souza to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.
It is now well accepted that each of the words "harsh, unreasonable or unjust" requires discrete consideration. As stated by the Full Bench of the Commission in Corrective Services NSW v Danwer [2013] NSWIRComm 61: "[21] … It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
The question of redundancy in the context of an unfair dismissal was considered by Sams DP in Huseyin Arslan and others and Berkely Challenge (Commercial) Pty Limited and Others [2001] NSWIRComm 45. His Honour stated: "20. It is well settled law that an employee's dismissal due to redundancy can attract considerations of unfairness such as to warrant a finding of the dismissal being 'harsh unreasonable or unjust' according to Pt 6 Ch 2 of the Act. 21. In this jurisdiction, the lead authority for this proposition is often referred to in Outboard World v Muir (1993) 51 IR 167, which described unfairness in the context of redundancy: While in the ordinary case it may be that a redundancy genuinely occurring would not come within the parameters of Part 8, Unfair Dismissals, it takes little imagination to apprehend a situation which is both a redundancy and a harsh, unreasonable or unjust dismissal. For example, it may be that in selecting employees for redundancy an employer unilaterally decides to terminate an employee of long and exemplary service over another employee. The facts of the case may demonstrate both redundancy of one position but unfairness as against the employee selected. Once that position is accepted then it follows that an employee is not necessarily incapable of suffering an 'unfair' dismissal in the context of a position becoming redundant. Other examples come readily to mind. 22. The Commission also finds the question posed by Lee J of the Industrial Relations Court of Australia in Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australia Branch, 63 IR 1 at p7, particularly apposite to the considerations I am faced with in this case: The question in this case is whether the employer gave due regard to all reasonable and fair considerations the employee was entitled to expect as part of the employer/employee relationship that existed between them prior to termination of the employee's services. That is to say, acting fairly and having due regard to the interests of the employee did the employer do that which could be reasonably expected of it in the circumstances to avoid the termination operating harshly, unjustly or unreasonably? Also of relevant interest is a passage from Budget Couriers Equity Management v Beshara (1993) 5 VIR 173, in which a Full Bench of the Employee Relations Commission of Victoria said in 1993: In approaching matters alleging that a dismissal is harsh unjust or unreasonable, it is not enough for an employer to establish that the circumstances are one of a genuine redundancy. The dismissal must be tested against substantive and procedural fairness. It is insufficient for an employer to raise the aegis of a genuine redundancy as a wand against this commission intervening where the circumstances in which the redundancy was imposed are otherwise harsh unjust or unreasonable. The obligations to consult to provide adequate notice and to apply objective selection criteria in determining which employee is to be made redundant are factors in determining whether a dismissal was harsh unjust or unreasonable. The concept of 'industrial fair play' is to be observed by both parties to a contract of employment and the need to make employees redundant does not absolve employers from this general principle. A failure by an employer to ensure that these principles are followed may lead to a finding characterising a dismissal as harsh unjust or unreasonable and to consequential orders. The fact that an employer has complied with the strict notice and severance payment provisions of the standards established in the Termination Change and Redundancy Cases ((1984) 8 IR 34; (1984) 9 IR 115; 2 VIR 36) will not necessarily dissuade the commission from intervening to provide a remedy where a dismissal on the grounds of redundancy comes within the statutory criteria of s 42(1) of the Employee Relations Act 1992. A useful summary of other relevant authorities is to be found in Quality Bakers of Australia v Goulding (1995) 60 IR 327 at 334-336. 23. My own summation of the matters to be considered in cases such as this is to be found in Shop Distributive and Allied Employees Association, New South Wales and W D & H O Wills, IRC3363 of 1999, 9 June 2000. Here the Commission summarised the obligations on employers in redundancy situations. At para 66 I said: ... In redundancy situations, an employer is obliged to: 1. give reasonable notice to employees and/or their Unions; 2. adequately consult with employees and/or their Unions on the impact of the proposed changes; 3. explore genuine alternative options for redundancy, such as redeployment or relocation; 4. ensure such options are fairly offered to the affected employees; 5. provide reasonable standards of redundancy benefits; 6. provide appropriate ancillary services, such as time off to seek alternative work, retraining opportunities, outplacement services or financial planning; 7. ensure employees nominated for redundancy are fairly selected on an objective and unbiased basis."
These passages from Arslan were recently quoted with approval by Murphy C in Williams v City of Sydney [2019] NSWIRComm 1090.

Preliminary Objection

At the commencement of the hearing it was necessary to address a matter arising out of a letter from Mr D'Souza to the Commission dated 27 November 2019. Attached to the letter was a document described by Mr D'Souza as an excerpt from the "Transport for New South Wales Delegations". That excerpt included the following paragraph: "A delegation empowers TfNSW employees to make decisions and to take action on behalf of TfNSW. This means that when you exercise your delegations, you accept responsibility for your decision or action and understand you will be personally accountable."
In his letter, Mr D'Souza relied on this extract to lodge an "objection" to the various individuals referred to in his evidence and submissions from being able to avail themselves of support from the TfNSW Legal Branch. At the hearing, Mr D'Souza clarified that if the managers were "personally accountable", it was necessary that they individually attend before the Commission to explain their treatment of him, and not rely on the TfNSW Legal Branch defending their behaviour at an organisational level.
I explained to Mr D'Souza that I was not convinced that the "delegations" on which he relied provided a proper basis for the objection which he had made. I further explained that in any event it was beyond the jurisdiction of the Commission to "bar" past and present employees of TfNSW from being represented by the TfNSW Legal Branch.
Mr D'Souza did not seek to further press the objection.

Consideration

At the heart of Mr D'Souza's case is his meeting with Ms Rodrom on 1 April 2019, which he claimed "nullified" the process that ultimately resulted in him accepting, under protest, voluntary redundancy. He described this as the cause of his dismissal, being the first step in a process that was designed to force him out of the organisation.
The Secretary elected not to call the individuals identified in Mr D'Souza's evidence including Ms Rodrom, Mr Greethead, Ms Singleton, Ms Monaghan, Mr Bass, Ms Mares or Ms James. It follows that there is no direct response to Mr D'Souza's allegations as to the events of 1 April 2019, or of his later attempts to raise his concerns about Ms Rodrom with other managers.
The Secretary addressed this issue in the evidence of Ms Crothers as follows: "98. From the time Mr D'Souza accepted the voluntary redundancy package and until his last day of employment, he remained represented by the PSA and no issues or concerns were raised by the PSA, on Mr D'Souza's behalf, in relation to any 'duress' or Mr D'Souza having accepted the voluntary redundancy package under protest. … 102. During my time as the Senior Manager People Partners responsible for Procurement Services I am not aware of any complaint whether formal or informal made by Mr D'Souza against any of his supervisors or managers or any member of People and Culture (Human Resources). … 104. Mr D'Souza did not appeal any of the recruitment decisions made in relation to his recruitment applications for alternative roles."
On the evidence I am bound to accept that the meeting on 1 April 2019 took place as described by Mr D'Souza. I am equally bound to accept that he raised his concerns regarding Ms Rodrom's behaviour with Ms James, Ms Monaghan, Mr Bass and Ms Mares and, at least to a point, Ms Crothers.
However, it was necessary for these proceedings that Mr D'Souza demonstrate the causal connection between the attitude expressed by Ms Rodrom on 1 April 2019 and the termination of his employment. With rather disarming candour, Mr D'Souza conceded during the hearing that he could not provide evidence establishing that link.
It is sufficient to make the following further observations: 1. there is no evidence that Ms Rodrom was involved in the restructure process, including in the decision to declare Mr D'Souza "excess" or in the process of assessing him for the redeployment opportunities for which he applied. There is equally no evidence that she spoke about Mr D'Souza to any of the other staff members who were so involved; 2. there is no evidence that Mr D'Souza had any interactions with Ms Rodrom, whether in relation to voluntary redundancy or otherwise, after 1 April 2019. Ms Rodrom departed TfNSW in August 2019. Mr D'Souza accepted voluntary redundancy on 12 September 2019; and 3. Mr D'Souza conceded under cross-examination that none of the individuals coming in for criticism in his evidence and submissions were involved in the selection process in respect of the redeployment opportunities for which he applied.
Mr D'Souza also alleged unfairness arising out of: 1. management having suggested to him in September 2018 that he "consider retirement", which suggests age discrimination; 2. him being placed under what he considered undue pressure by Ms James to opt for either voluntary redundancy or redeployment; and 3. an unwillingness on the part of TfNSW to consider extending his employment beyond 27 September 2019.
Once again, in the absence of any contradictory evidence from the Secretary, I accept that the events of September 2018 occurred as described by Mr D'Souza. However, Mr D'Souza did not draw a connection between those events and the ultimate termination of his employment. There is no evidence to suggest that anyone involved in the process commencing with the restructure of Procurement Services and culminating in his departure was in any way influenced by Mr D'Souza's age, or that he was treated less favourably in the process than a younger person would have been treated.
I do not accept that undue pressure was placed on Mr D'Souza to accept voluntary redundancy. The case presented by Mr D'Souza, taken at its highest, does not establish that Ms James in any way acted inappropriately. Further, Ms Crothers deposed that on two occasions, namely 16 April 2019 and 10 September 2019, she told Mr D'Souza that the choice was entirely up to him whether or not to accept voluntary redundancy.
I find that while Mr D'Souza may have accepted voluntary redundancy reluctantly, he did so without undue influence.
There is also nothing inherently unfair in TfNSW declining Mr D'Souza's request to further extend his departure date. TfNSW could be expected to treat all employees consistently, and separately negotiating the termination dates for all affected employees is likely to be a recipe for conflict.
I have a degree of sympathy for Mr D'Souza. At the age of 79, when many people are long retired, he is seeking to extend his working life. However, the fact remains that Mr D'Souza bears the onus of establishing that his dismissal was harsh, unreasonable or unjust, and he has failed to discharge that onus. Speculation or conjecture, however genuinely advanced, is insufficient. Taking his evidence at its highest, Mr D'Souza has failed to demonstrate that his employment was terminated for any reason other than genuine redundancy.
I accept that the Secretary has satisfied all of the obligations on an employer in a redundancy situation which were identified by Sams DP in Arslan at [23].
I find that the dismissal was not harsh, unreasonable or unjust.

Orders

I make the following orders: 1. Direct that the name of the respondent to the proceedings be amended to Secretary of the Department of Transport. 2. The Application is dismissed. Damian Sloan Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2020

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