The plaintiff contends that the changes communicated in the email broadcast of 12 February 2009 constituted a restructuring of the defendant's business and as a consequence, Mr Whittaker was made redundant.
The defendant says that there was no redundancy. Ms Carter continued in the VP and GM position formerly occupied by Mr Whittaker. It is also submitted that there is no termination pleaded as a result of restructuring, rather the plaintiff's claim is that the termination of his employment arose from redundancy. But in any event, the defendant says that there was no restructuring in this case as the relevant clause is concerned with terminations resulting from Unysis' 'restructuring ... its business with any other organisation or entity'. The defendant contends that the clause is not concerned with the internal restructuring of some positions, but rather with the restructuring of the business with another organisation or entity. It is also submitted that, in this case, the employer did not wish to terminate Mr Whittaker's employment, rather it wished that his employment would continue, albeit in a different role, and hence the clause does not apply.
It is convenient to deal first with the proposition that Mr Whittaker's employment was terminated as a result of redundancy.
The defendant contends that an essential feature of redundancy is that the particular position occupied by the employee ceases to exist for reasons such as economic downturn or restructuring. It is said that the focus is on the position not the person, and that in this case the plaintiff's position, as VP and GM, did not cease to exist. Ms Carter took the plaintiff's VP and GM role and Mr Whittaker was offered the mega deal role. In these circumstances, it is said that there was no redundancy. A number of authorities are relied on in support of this proposition.
In R v Industrial Commission of South Australia; Ex parte Adelaide Milk Cooperative Ltd, Bray CJ defined redundancy in these terms: [22]
... the concept of redundancy in the context we are discussing seems to be simply this, that a job becomes redundant when the employer no longer desires to have it performed by anyone.
As the defendant observes, this description of redundancy was referred to with apparent approval by the Full Bench of the Australian Industrial Relations Commission in the Termination Change and Redundancy Case (the TCR case)[23] and by Beach J in Lindeman v Bentley.[24] But these cases do not assist the defendant; they are not concerned with the definition of redundancy at common law. The TCR case was about the creation of a standard redundancy provision for inclusion in federal awards. In Lindeman v Bentley, Beach J was construing a Victorian Public Sector Agreement titled 'Redeployment and Retraining in the Victorian Public Service'. Clause 3 of that agreement defined redundancy in terms of positions, not persons.
The same observation may be made of the judgments in Foster's Group Limited v Wing.[25] In that matter, the Victorian Court of Appeal was concerned with the application of Foster's redundancy policy which defined redundancy in these terms:
A redundancy arises when an employee's role no longer exists or the duties of the role have changed that for all practical purposes the original role no longer exists.
I am not persuaded that the concept of redundancy at common law is as narrow as the defendant contends. It is not simply concerned with the abolition of a position, but may arise upon the redistribution of job functions. As Beazley J observed in Quality Bakers of Australia Ltd v Goulding:[26]
A redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed; or where the employer wishes to amalgamate jobs. It is not necessary for the work to have disappeared altogether. As was said in Bunnett's case:
'Organisational restructuring may result in a position being abolished and the functions or some of them being given to another or split amongst others'. (citations omitted)
Hence a redundancy may arise where the duties performed by an employee are redistributed among other employees. The employer still requires the duties to be performed, but the reorganisation gives rise to a redundancy. The plaintiff says that that is what happened here:
Mr Whittaker's former position, that is the bundle of duties that comprised his position were redistributed among the two persons (Mr Whittaker and Ms Carter).
I accept that the duties that made up Mr Whittaker's former GM and VP role were redistributed between Ms Carter and Mr Whittaker. But I do not accept that Mr Whittaker was made redundant as a result. As Ryan J observed in Jones v Department of Energy and Minerals:
... it is within the employer's prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly created positions. ... One illustration of it occurs when the duties of a single, full time, employee are redistributed to several part time employees. What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the reorganisation, any duties left to discharge. [Emphasis added]
In Jones, some of the tasks previously assigned to the applicant still had to be carried out, but as a consequence of the employer's rearrangement of its operational structure, these tasks were combined with other functions and performed by the holder of a newly created position. Mr Jones was rendered redundant when he could not be redeployed and was found to be surplus to the respondent's personal needs.
The situation in the present case is quite different. Unysis rearranged its operational structure by splitting the functions of Mr Whittaker's former GM and VP role between Mr Whittaker and Ms Carter. But, importantly, after the reorganisation Mr Whittaker still had duties to perform. Contrary to the plaintiff's submission, I am not persuaded that the mega deal position did not exist - the weight of the evidence supports the existence of such a role. A position description in respect of the proposed role was drawn up and forwarded to Mr Whittaker and the position is referred to in the organisational chart on p 6 of Exhibit R7. Further, in his letter to Mr Barkla of 10 April 2008, Mr Whittaker describes the proposed position as 'essentially a sales role' which he saw as a severe downgrading of his previous role. But Mr Whittaker does not say that the proposed role was a sham or did not exist. While the mega deal position has not yet been filled, that is explicable on the basis that a person with the requisite skills has not yet been identified.
In such circumstances, and consistent with what Ryan J said in Jones, Mr Whittaker was not redundant.