Each of the above matters (except (b)(v) and (vi)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

1. I am further satisfied that (and consider relevant):

1. Mr Skinner was a Trainee Driver. 2. The procedural and substantive defects in the KSA process support a finding that the termination of Mr Skinner's employment was harsh, unjust or unreasonable. 3. Mr Skinner scored "3" for attendance despite having had only three sick days in four years and "2" for safety despite having had no safe-working incidents. 4. Mr Skinner obtained a KSA score of 27.5. He was ranked 51st out of 63 employees at the Parkes depot. He would have had to achieve a score of 28 or more to avoid selection. 5. Mr Skinner would have been spared selection for termination if he had scored another 0.5 point. 6. Although the calibration process lacked any forensic integrity it did not result in a reduction in Mr Skinner's KSA score. In fact it went up. 7. The failure of the respondent to consider VR swaps supports a finding that the termination of Mr Skinner's employment was harsh, unjust or unreasonable. 8. However, as a Trainee Driver the possibility of a swap was less likely for Mr Skinner.

[43] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is satisfied that, overall, and having regard to the obligation to afford a "fair go all round" the dismissal of Mr Skinner was unreasonable. The deficiencies in the KSA process when coupled with the fact that Mr Skinner would have survived the termination process with just another 0.5 point score leads me to the conclusion that the dismissal was unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the respondent.

[44] Accordingly, the Commission, as presently constituted, finds Mr Skinner's dismissal was unfair within the meaning of the FW Act. Mr Skinner's application for an unfair dismissal remedy, if any, will now be programmed for further hearing.

[45] An Order and Directions will be issued with this decision.

[46] In respect of Mr Pemberton I consider the following matters to be relevant to the determination of whether his dismissal was harsh, unjust or unreasonable:

1. For the reasons stated in the Genuine Redundancy Decision I am satisfied that:

   1. Because of a reduction in workloads and grain volumes the respondent had a significantly reduced demand for its services and, consequently, train crews at both its Cootamundra and Parkes depots.

   2. Mr Pemberton's role was no longer required to be performed by anyone because of operational changes at his depot.

   3. Mr Pemberton did not lodge an expression of interest for a VR.

   4. On 27 May 2015 the RTBU was given advanced notice of the decision to be communicated to the affected employees.

   5. From 29 May 2015 Asciano was prepared to consider Mr Pemberton for alternative roles (in particular 52 new full time and part time roles at the Moss Vale and Enfield depots).

   6. The respondent held information sessions for affected employees on 1 - 4 June 2015.

   7. Affected employees were further advised of the processes (including a Q&A about labour rationalisation) and opportunities on 10 June 2015 and had an opportunity to apply for positions up to 14 June 2015.

   8. The respondent offered financial support to relocate.

   9. The respondent complied with its obligations to consult with its employees and the RTBU about the impending redundancies.

   10. The consultation engaged in by the respondent was meaningful. Further, the consultation was engaged in before an irreversible decision to terminate was made. The consultation was not perfunctory.

   11. Mr Pemberton did not express in writing any interest to transfer to Moss Vale or Enfield.

   12. A letter of termination was provided (14 days in advance of dismissal) that confirmed that the reason for dismissal was redundancy.

   13. Mr Pemberton received a termination pay comprising a payment in lieu of notice and severance pay.

Each of the above matters tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

1. For the reasons stated in the Genuine Redundancy Decision I am satisfied that, specifically in relation to Mr Pemberton:

1. At the date of termination he had been employed for 3 years. 2. He wanted to be contacted by Asciano Careers. 3. He was exploring opportunities for himself. 4. He was particularly interested in a position in Moolabin, Queensland. 5. He was rejected for the Queensland position because of his lack of qualifications. 6. A further meeting was arranged (to discuss his KSA), but Mr Pemberton cancelled his attendance. 7. He was certified fit for work at around the time of the proposed termination. 8. He accepted a temporary transfer to Moss Vale.

Each of the above matters (except (b)(ii), (iv)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

1. I am further satisfied that (and consider relevant):

1. Mr Pemberton was a trainee driver. 2. The procedural and substantive defects in the KSA process support a finding that the termination of Mr Pemberton's employment was harsh, unjust or unreasonable. 3. Mr Pemberton scored a "2" for "Demonstrates the value of 'Home Safely Everyday'" despite never having had a safety breach. 4. Mr Pemberton obtained a KSA score of 21. He was ranked 48th out of 49 employees at the Cootamundra depot. He would have had to achieve a score of 27.5 or more to avoid selection. 5. Although the calibration process lacked any forensic integrity it did not result in a reduction in Mr Pemberton's KSA score. In fact, it went up. 6. The failure of the respondent to consider VR swaps supports a finding that the termination of Mr Pemberton's employment was harsh, unjust or unreasonable. 7. However, as a Trainee Driver the possibility of a swap was less likely for Mr Pemberton. In any case, Mr Pemberton was only interested in a move to Brisbane.

[47] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied that, overall, and having regard to the obligation to afford a "fair go all round" the dismissal of Mr Pemberton was harsh, unjust or unreasonable. Mr Pemberton had a very low KSA (even considering the procedural and substantive deficiencies in that process), he was not interested in redeployment and only interested in a move to Brisbane.

[48] Accordingly, the Commission, as presently constituted, finds Mr Pemberton's dismissal was not unfair within the meaning of the FW Act. Mr Pemberton's application for an unfair dismissal remedy must, therefore, be dismissed.

[49] An Order will be issued with this decision.

[50] In respect of Mr Ross I consider the following matters to be relevant to the determination of whether his dismissal was harsh, unjust or unreasonable:

1. For the reasons stated in the Genuine Redundancy Decision I am satisfied that:

   1. Because of a reduction in workloads and grain volumes the respondent had a significantly reduced demand for its services and, consequently, train crews at both its Cootamundra and Parkes depots.

   2. Mr Ross' role was no longer required to be performed by anyone because of operational changes at his depot.

   3. Mr Ross did not lodge an expression of interest for a VR.

   4. On 27 May 2015 the RTBU was given advanced notice of the decision to be communicated to the affected employees.

   5. From 29 May 2015 Asciano was prepared to consider Mr Ross for alternative roles (in particular 52 new full time and part time roles at the Moss Vale and Enfield depots).

   6. The respondent held information sessions for affected employees on 1 - 4 June 2015.

   7. Affected employees were further advised of the processes (including a Q&A about labour rationalisation) and opportunities on 10 June 2015 and had an opportunity to apply for positions up to 14 June 2015.

   8. The respondent offered financial support to relocate.

   9. The respondent complied with its obligations to consult with its employees and the RTBU about the impending redundancies.

   10. The consultation engaged in by the respondent was meaningful. Further, the consultation was engaged in before an irreversible decision to terminate was made. The consultation was not perfunctory.

   11. Mr Ross did not express in writing any interest to transfer to Moss Vale or Enfield.

   12. A letter of termination was provided (14 days in advance of dismissal) that confirmed that the reason for dismissal was redundancy.

   13. Mr Ross received a termination pay comprising a payment in lieu of notice and severance pay.

Each of the above matters tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

1. For the reasons stated in the Genuine Redundancy Decision I am satisfied that, specifically in relation to Mr Ross:

1. At the time of his dismissal he had been employed for around 3 ½ years. 2. He wanted to be contacted by Asciano Careers, however, he took the SIM card out of his work provided phone. 3. He expressed interest in being engaged through a labour hire firm. He was told that the firm was Momentum. He was invited to register with them. 4. He expressed interest in Moss Vale (which I reject he was told was full), but he did not complete a written expression of interest as required.

Each of the above matters (except (b)(ii)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

[51] I am further satisfied that (and consider relevant):

1. Mr Ross was a Mainline Driver in training.

2. The procedural and substantive defects in the KSA process support a finding that the termination of Mr Ross' employment was harsh, unjust or unreasonable.

3. Mr Ross obtained a KSA score of 24.5. He was the 3rd lowest rating at the Parkes depot. There were 7 employees with better ratings who were also selected for redundancy. He would have had to achieve a score of 28 to avoid selection.

4. Although the calibration process lacked any forensic integrity it did not result in a reduction in Mr Ross' KSA score. In fact, it went up.

5. The failure of the respondent to consider VR swaps supports a finding that the termination of Mr Ross' employment was harsh, unjust or unreasonable.

6. However, as a Mainline Driver in training the possibility of a swap was less likely for Mr Ross.

[52] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied that, overall, and having regard to the obligation to afford a "fair go all round" the dismissal of Mr Ross was harsh, unjust or unreasonable. Mr Ross had a very low KSA (even when considering the procedural and substantive deficiencies in that process). Further he did not apply for redeployment and because he was still in training it was more difficult to offer him a VR swap.

[53] Accordingly, the Commission, as presently constituted, finds Mr Ross' dismissal was not unfair within the meaning of the FW Act. Mr Ross' application for an unfair dismissal remedy must, therefore, be dismissed.

[54] An Order will be issued with this decision.

[55] In respect of Mr Lucas I consider the following matters to be relevant to the determination of whether his dismissal was harsh, unjust or unreasonable:

1. For the reasons stated in the Genuine Redundancy Decision I am satisfied that:

   1. Because of a reduction in workloads and grain volumes the respondent had a significantly reduced demand for its services and, consequently, train crews at both its Cootamundra and Parkes depots.

   2. Mr Lucas' role was no longer required to be performed by anyone because of operational changes at his depot.

   3. Mr Lucas did not lodge an expression of interest for a VR.

   4. On 27 May 2015 the RTBU was given advanced notice of the decision to be communicated to the affected employees.

   5. From 29 May 2015 Asciano was prepared to consider Mr Lucas for alternative roles (in particular 52 new full time and part time roles at the Moss Vale and Enfield depots).

   6. The respondent held information sessions for affected employees on 1 - 4 June 2015.

   7. Affected employees were further advised of the processes (including a Q&A about labour rationalisation) and opportunities on 10 June 2015 and had an opportunity to apply for positions up to 14 June 2015.

   8. The respondent offered financial support to relocate.

   9. The respondent complied with its obligations to consult with its employees and the RTBU about the impending redundancies.

   10. The consultation engaged in by the respondent was meaningful. Further, the consultation was engaged in before an irreversible decision to terminate was made. The consultation was not perfunctory.

   11. Mr Lucas did not express in writing any interest to transfer to Moss Vale or Enfield.

   12. A letter of termination was provided (14 days in advance of dismissal) that confirmed that the reason for dismissal was redundancy.

   13. Mr Lucas received a termination pay comprising a payment in lieu of notice and severance pay.

Each of the above matters tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

1. For the reasons stated in the Genuine Redundancy Decision I am satisfied that, specifically in relation to Mr Lucas:

1. At the time of his dismissal Mr Lucas had been employed for around 11 years. 2. Indicated that he did want Asciano Careers to make contact with him. 3. Expressed some interest in exploring a role at Moss Vale or Enfield subject to discussing the same with his wife and ultimately settled upon Moss Vale. 4. Indicated a preparedness to explore job opportunities in Queensland. 5. He is computer illiterate and this impacted upon his ability to access and use emails during the relevant time. 6. On 30 June 2015 he was contacted by Asciano Careers and told that available positions at Moss Vale would be available on the Asciano website. 7. Despite being interested in Moss Vale, he did not submit a written expression of interest (his computer illiteracy contributed to this fact). 8. He was not told that Moss Vale was full. 9. He expressed interest in VR swaps.

Each of the above matters (except (b)(i), (ii), (iii), (iv), (v), and (ix)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

[56] I am further satisfied that (and consider relevant):

1. Mr Lucas was a Locomotive Driver.

2. The procedural and substantive defects in the KSA process support a finding that the termination of Mr Lucas' employment was harsh, unjust or unreasonable.

3. Mr Lucas scored high on objective criteria, but low on subjective measures (that was not substantiated by evidence).

4. Mr Lucas obtained a KSA score of 24. He ranked 46th out of 49 employees at the Cootamundra depot. He would have had to achieve a score of 27.5 to avoid selection.

5. Although the calibration process lacked any forensic integrity it did not result in a reduction in Mr Lucas' KSA score.

6. The failure of the respondent to consider VR swaps supports a finding that the termination of Mr Lucas' employment was harsh, unjust or unreasonable.

7. As a Locomotive Driver the possibility of a swap was more likely for Mr Lucas.

[57] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is satisfied that, overall, and having regard to the obligation to afford a "fair go all round" the dismissal of Mr Lucas was unreasonable. Having regard to him being an experienced driver and having scored so highly on the objective criteria in the KSA, the dismissal was unreasonable because (it would appear) it was decided upon inferences (in relation to the subjective criteria) which could not reasonably have been drawn from the material before the respondent.

[58] Accordingly, the Commission, as presently constituted, finds Mr Lucas' dismissal was unfair within the meaning of the FW Act. Mr Lucas' application for an unfair dismissal remedy will now be programmed for further hearing in relation to what remedy, if any, should be awarded.

[59] An Order and Directions will be issued with this decision.

[60] In respect of Mr Hill I consider the following matters to be relevant to the determination of whether his dismissal was harsh, unjust or unreasonable:

1. For the reasons stated in the Genuine Redundancy Decision I am satisfied that:

   1. Because of a reduction in workloads and grain volumes the respondent had a significantly reduced demand for its services and, consequently, train crews at both its Cootamundra and Parkes depots.

   2. Mr Hill's role was no longer required to be performed by anyone because of operational changes at his depot.

   3. Mr Hill did not lodge an expression of interest for a VR.

   4. On 27 May 2015 the RTBU was given advanced notice of the decision to be communicated to the affected employees.

   5. From 29 May 2015 Asciano was prepared to consider Mr Hill for alternative roles (in particular 52 new full time and part time roles at the Moss Vale and Enfield depots).

   6. The respondent held information sessions for affected employees on 1 - 4 June 2015.

   7. Affected employees were further advised of the processes (including a Q&A about labour rationalisation) and opportunities on 10 June 2015 and had an opportunity to apply for positions up to 14 June 2015.

   8. The respondent offered financial support to relocate.

   9. The respondent complied with its obligations to consult with its employees and the RTBU about the impending redundancies.

   10. The consultation engaged in by the respondent was meaningful. Further, the consultation was engaged in before an irreversible decision to terminate was made. The consultation was not perfunctory.

   11. Mr Hill did not express in writing any interest to transfer to Moss Vale or Enfield. In fact he rejected both opportunities.

   12. A letter of termination was provided (14 days in advance of dismissal) that confirmed that the reason for dismissal was redundancy.

   13. Mr Hill received a termination pay comprising a payment in lieu of notice and severance pay.

Each of the above matters tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

1. For the reasons stated in the Genuine Redundancy Decision, I am satisfied that, specifically in relation to Mr Hill:

1. At the time of his dismissal Mr Hill had been employed for around 3 ½ years. 2. He did express interest in a Shift Manager position at the Parkes Depot, but was unsuccessful in the selection process. 3. He had indicated that he did not want to be contacted by Asciano Careers. 4. Because of his personal circumstances he was unable to move for work away from Parkes.

Each of the above matters (except (b)(iv)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

[61] I am further satisfied that (and consider relevant):

1. Mr Hill was a Mainline Driver in training.

2. The procedural and substantive defects in the KSA process support a finding that the termination of Mr Hill's employment was harsh, unjust or unreasonable.

3. Mr Hill obtained a KSA score of 23. He had the equal second lowest rating at the Parkes depot. There were 9 employees with better ratings who were also selected for redundancy. He would have had to achieve a score of 28 to avoid selection.

4. Although the calibration process lacked any forensic integrity it did not result in a reduction in Mr Hill's KSA score. In fact, it went up.

5. The failure of the respondent to consider VR swaps supports a finding that the termination of Mr Hill's employment was harsh, unjust or unreasonable.

6. However, as a Mainline Driver in training the possibility of a swap was less likely for Mr Hill.

[62] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied that, overall, and having regard to the obligation to afford a "fair go all round" the dismissal of Mr Hill was harsh, unjust or unreasonable. Mr Hill had a very low KSA (even considering the procedural and substantive defects in that process). Being in training a VR swap or other redeployment options were less viable for the respondent to offer him. He was not interested in moving from Parkes.

[63] Accordingly, the Commission, as presently constituted, finds Mr Hill's dismissal was not unfair within the meaning of the FW Act. Mr Hill's application for an unfair dismissal remedy must, therefore, be dismissed.

[64] An Order will be issued with this decision.

[65] In respect of Ms Bryant I consider the following matters to be relevant to the determination of whether her dismissal was harsh, unjust or unreasonable:

1. For the reasons stated in the Genuine Redundancy Decision I am satisfied that:

   1. Because of a reduction in workloads and grain volumes the respondent had a significantly reduced demand for its services and, consequently, train crews at both its Cootamundra and Parkes depots.

   2. Ms Bryant's role was no longer required to be performed by anyone because of operational changes at his depot.

   3. Ms Bryant did not lodge an expression of interest for a VR.

   4. On 27 May 2015 the RTBU was given advanced notice of the decision to be communicated to the affected employees.

   5. From 29 May 2015 Asciano was prepared to consider Ms Bryant for alternative roles (in particular 52 new full time and part time roles at the Moss Vale and Enfield depots).

   6. The respondent held information sessions for affected employees on 1 - 4 June 2015.

   7. Affected employees were further advised of the processes (including a Q&A about labour rationalisation) and opportunities on 10 June 2015 and had an opportunity to apply for positions up to 14 June 2015.

   8. The respondent offered financial support to relocate.

   9. The respondent complied with its obligations to consult with its employees and the RTBU about the impending redundancies.

   10. The consultation engaged in by the respondent was meaningful. Further, the consultation was engaged in before an irreversible decision to terminate was made. The consultation was not perfunctory.

   11. Ms Bryant did not express in writing any interest to transfer to Moss Vale or Enfield.

   12. A letter of termination was provided (14 days in advance of dismissal) that confirmed that the reason for dismissal was redundancy.

   13. Ms Bryant received a termination pay comprising a payment in lieu of notice and severance pay.

Each of the above matters tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

1. For the reasons stated in the Genuine Redundancy Decision I am satisfied that, specifically in relation to Ms Bryant:

1. At the time of her dismissal she had been employed with the respondent for nearly 4 years. 2. She asked about an opportunity at Mudgee. 3. There was also some consideration given to redeployment to the Bathurst depot, but it was 4 hours away from Parkes. 4. She said she wanted to be contacted by Asciano Careers. 5. She was informed about Momentum providing labour hire services into the future and was provided with information about how to register with them. 6. Because of her personal circumstances she was unable to move for work away from Parkes.

Each of the above matters (except (b)(ii), (iii), (iv) and (vi)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

[66] I am further satisfied that (and consider relevant),

1. Ms Bryant was a Mainline Driver in training.

2. The procedural and substantive defects in the KSA process support a finding that the termination of Ms Bryant's employment was harsh, unjust or unreasonable.

3. Ms Bryant obtained a KSA score of 23. Ms Bryant had the equal second lowest rating at the Parkes depot. There were 9 employees with better ratings who were selected for redundancy. She would have had to achieve a score of 28 to avoid selection.

4. Although the calibration process lacked any forensic integrity it did not result in a reduction in Ms Bryant's KSA score. In fact, it went up.

5. The failure of the respondent to consider VR swaps supports a finding that the termination of Ms Bryant's employment was harsh, unjust or unreasonable.

6. However, as a Mainline Driver in training the possibility of a swap was less likely for Ms Bryant.

7. Ms Bryant did not seriously consider nor did she suggest to the respondent (as she did to the Commission the first time during the rehearing) that she would be interested in a position at Mudgee that required her to travel approximately 400 km each day on her own time (i.e. unpaid). In any case there is no evidence that there was a vacant role at Mudgee at the relevant time.

[67] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied that, overall, and having regard to the obligation to afford a "fair go all round" the dismissal of Ms Bryant was harsh, unjust or unreasonable. Ms Bryant had a very low KSA (even considering the procedural and substantive defects in that process). She was not seriously interested in redeployment outside of Parkes.

[68] Accordingly, the Commission, as presently constituted, finds Ms Bryant's dismissal was not unfair within the meaning of the FW Act. Ms Bryant's application for an unfair dismissal remedy must, therefore, be dismissed.

[69] An Order will be issued with this decision.

[70] In respect of Mr Preston I consider the following matters to be relevant to the determination of whether his dismissal was harsh, unjust or unreasonable:

1. For the reasons stated in the Genuine Redundancy Decision I am satisfied that:

   1. Because of a reduction in workloads and grain volumes the respondent had a significantly reduced demand for its services and, consequently, train crews at both its Cootamundra and Parkes depots.

   2. Mr Preston's role was no longer required to be performed by anyone because of operational changes at his depot.

   3. Mr Preston did not lodge an expression of interest for a VR.

   4. On 27 May 2015 the RTBU was given advanced notice of the decision to be communicated to the affected employees.

   5. From 29 May 2015 Asciano was prepared to consider Mr Preston for alternative roles (in particular 52 new full time and part time roles at the Moss Vale and Enfield depots). Mr Preston did not apply for any of the positions.

   6. The respondent held information sessions for affected employees on 1 - 4 June 2015.

   7. Affected employees were further advised of the processes (including a Q&A about labour rationalisation) and opportunities on 10 June 2015 and had an opportunity to apply for positions up to 14 June 2015.

   8. The respondent offered financial support to relocate.

   9. The respondent complied with its obligations to consult with its employees and the RTBU about the impending redundancies.

   10. The consultation engaged in by the respondent was meaningful. Further, the consultation was engaged in before an irreversible decision to terminate was made. The consultation was not perfunctory.

   11. Mr Preston did not express in writing any interest to transfer to Moss Vale or Enfield.

   12. A letter of termination was provided (14 days in advance of dismissal) that confirmed that the reason for dismissal was redundancy.

   13. Mr Preston received a termination pay comprising a payment in lieu of notice and severance pay.

Each of the above matters tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

1. For the reasons stated in the Genuine Redundancy Decision I am satisfied that, specifically in relation to Mr Preston:

1. He did tell the respondent that he wanted to be contacted by its career section. 2. He said he would consider one of the truck driver positions in the Patrick division (subject to the position being a forklift driving position). 3. He had not accessed his email to which the respondent had sent much of the information about the redeployment and redundancy process because, he said, he was not able to log in. 4. On 24 June 2015 he attended a meeting at which further opportunities were provided, but they were unsuitable to his circumstances. 5. A further opportunity for redeployment was provided to Mr Preston when he was contacted by Asciano Careers around 30 June 2015. Again he stated that he was not interested in redeployment.

Each of the above matters (except (b)(i) and (ii)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

[71] I am further satisfied that (and consider relevant):

1. Mr Preston was a Locomotive Driver.

2. The procedural and substantive defects in the KSA process support a finding that the termination of Mr Preston's employment was harsh, unjust or unreasonable.

3. Mr Preston scored "1" on the criteria "supportive team behaviours towards peers and leaders" despite there being no evidence to support such a finding.

4. Mr Preston obtained a KSA score of 22. He was ranked 47th out of 49 employees at the Cootamundra depot. He would have had to achieve a score of 27.5 to avoid selection.

5. Mr Preston ended the meeting that was conducted to allow him to discuss his KSA score (although noting that, nothing he said would have changed the result).

6. Although the calibration process lacked any forensic integrity it did not result in a reduction in Mr Preston's KSA score.

7. The failure of the respondent to consider VR swaps supports a finding that the termination of Mr Preston's employment was harsh, unjust or unreasonable.

8. As a Locomotive Driver the possibility of a swap was more likely for Mr Preston. However, Mr Preston made it clear that he was not interested in redeployment.

[72] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied that, overall, and having regard to the obligation to afford a "fair go all round" the dismissal of Mr Preston was harsh, unjust or unreasonable. His lack of any interest in redeployment and his low KSA score (even allowing for procedural and substantive deficiencies) tells against a finding being made against the respondent in this matter.

[73] Accordingly, the Commission, as presently constituted, finds Mr Preston's dismissal was not unfair within the meaning of the FW Act. Mr Preston's application for an unfair dismissal remedy must, therefore, be dismissed.

[74] An Order will be issued with this decision.

Applicant's Final Submissions in Reply dated 29 May 2017

Joint Final Submissions on paragraphs in the Genuine Redundancy Decision that were not disturbed by the Full Bench Decision dated 28 July 2017

[1] Positions as agreed between the parties and communicated to the Commission on 7 August 2017.

[2] As per email from RTBU on 13 February 2017 updating the remedy sought by each applicant.

[3] [2016] FWC 2720.

[4] [2017] FWCFB 112.

[5] [2017] FWCFB 574, [59].

[7] http://asciano.com.au/asciano/business-partnerships-and-supply-chain-management

[33] Nettlefold v Kym Smoker Pty Ltd [1996] IRCA 282; (1996) 69 IR 370, 373.

[34] Explanatory Memorandum, Fair Work Bill 2008, [1548].

[35] Keiselbach v Amity Group Pty Ltd (unreported, AIRC, Hamilton DP, 9 October 2006) PR973864, [34].

[46] Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company (1998) 88 IR 202, 218; cited in

Steele v Ennesty Energy Pty Ltd T/A Ennesty Energy [2012] FWA 4917 (unreported, Jones C, 21 June 2012) [20].

[47] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v

Vodafone Network Pty Ltd (unreported, AIRC, Smith C, 14 November 2001) PR911257 [25].

[57] Applicant's Final Closing Submissions at para 153-156

[58] Closing Submissions of Respondent on Jurisdiction at para 99

[80] Sayer v Melsteel [2011] FWAFB 7498.

[81] UES (Int'l) Pty Ltd v Harvey (2012) 215 IR 263.

[83] [2016] FWCFB 574 at esp. [57] and [58]

[88] The final criteria are set out in pages SP080 to SP 083 of Exhibit A25

[96] See the Commission's observations about this at PN1356

[100] Transcript PN812, PN849 - PN850, PN857 - PN863

[116] Exhibit A25 at SP 081 - SP 083, Transcript PN1068 - PN1070

[128] [2016] FWCFB 574 at esp. [57] and [58]

[131] Transcript PN123 to PN144 and in Exhibits A22 and A23

[134] The findings recorded at paragraph [26] of Skinner & Pemberton and Others v Asciano Services Pty Ltd [2016] FWC 2720 were not challenged on appeal and there is no suggestion in the applicants' closing submissions that the Commission should not make the same findings on the rehearing.

[135] The findings recorded at paragraph [37] of Skinner & Pemberton and Others v Asciano Services Pty Ltd [2016] FWC 2720 were not challenged on appeal and there is no suggestion in the applicants' closing submissions that the Commission should not make the same findings on the rehearing.

[138] Skinner & Ors Skinner & Pemberton and Others v Asciano Services Pty Ltd [2017] FWCFB 574 at [58]

[139] UES (Int'l) Pty Ltd v. Leevan Harvey [2012] FWAFB 5241at [27]

[140] See s.385 of the Fair Work Act 2009

[141] See in this regard footnote 1 above

[142] See Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 458, 464;

[143] UES (Int'l) Pty Ltd v. Leevan Harvey [2012] FWAFB 5241 at [27]; Carnes v Wagners Industrial Services Pty Ltd [2015] FWC 3254 at [51]

[144] See also Dixon v Natures Organics Pty Ltd [2013] FWC 9720 at [58] - [60]; Supara v SlumberCare Pty Ltd [2013] FWC 8704 at [52] - [54]

[145] See by way of parity of reasoning in relation to consultation, Priest v HFB Pty Ltd ATF HFB Admin Trust [2016] FWC 802 [46(e)]

[146] Applicants' submissions dated 5 May 2017 at [44]

[148] Applicants' submission at [18]

[149] Applicants' submission at [19]

[150] Applicants' submission at [21]

[151] Applicants' submission at [22]

[152] Applicants' submission at [23]

[153] Applicants' submission at [25]

[154] Applicants' submission at [25]

[156] KSA scores were changed and the KSA spread sheets were updated (paragraph 28 of the statement of King, Ex R12 and pages SP 116, 119, 159 & 160 of Ex A25)

[157] See for example Farquharson v Qantas Airways Limited [2006] AIRC 488; (2006) 155 IR 22 at [41]

[163] Pemberton, 14 March 2017, at [4]

[164] Skinner & Pemberton and Others v Asciano Services Pty Ltd [2017] FWCFB

[165] Section 381(2) of the Act

[166] See the submissions referred to in paragraph 1(a) and (b) above

[167] Bryant, Ross, Hill, Skinner and Pemberton - Exhibit R2 at 301, 299, 300, 298 and 310; T. 10.04.17, PN 305

[175] Pemberton, 14 March 2017, at [6]

[176] King, 23 November 2015, at [27]

[177] Applicants' submissions at [68]

[178] In this regard Asciano has obligations under clauses 17(h)(iv) and 32 of the Pacific National Bulk Rail Enterprise Agreement 2013 to pay relocation expenses

[180] King, 23 November 2015 at [16] - [19]

[181] Thornhill, 19 October 2015, at [27]

[184] There appears to be some inconsistency in the evidence as Mr King identifies the successful candidate as Mr Searle; King, 4 April 2017 at [17]

[190] Skinner & Ors v. Asciano Services Pty Ltd [2016] FWC 2720 at [11] (66); [49]

[195] Applicants' submissions at [71]

[197] Applicants' submissions at [72]

[198] UES (Int'l) Pty Ltd v Leevan Harvey [2012] FWAFB 5241 at [27]- [28].

[201] Cliffe v Construction Glazing [2015] FWC 1008 at [60]

[204] Applicant's outline of submissions of 05 May 2017 at [11]-[66]

[205] Respondent's closing submissions on rehearing of 22 May 2017 at [23]

[206] Skinner & Ors v Asciano Services Pty Ltd T/A Pacific National Bulk [2016] FWCFB 574 at [57]- [58]

[207] Applicant's final closing submissions on jurisdiction of 15 January 2016

[208] Respondent's closing submissions on rehearing of 22 May 2017 at [69]

[209] Clause 17(b)(i) of the Pacific National Enterprise Agreement 2013.

[210] Skinner & Ors v Asciano Services Pty Ltd T/A Pacific National Bulk [2016] FWCFB 574 at [57].

[211] Respondent's closing submissions on rehearing of 22 May 2017 at [52].

[212] Respondent's closing submissions on rehearing of 22 May 2017 at [69].

[213] Byrne v Australian Airlines Ltd (1995) 185 CLR 411

[214] [2012] FWAFB 5241.

[216] [2006] AIRC 488; (2006) 155 IR 22.

[217] Rehearing transcript PN947 - PN949.

[219] [2017] FWCFB 112, [58].

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