//
[2018] FWCFB 403
General information, not legal advice.
Fair Work Commission (Full Bench)
2018-04-13
Original judgment source is linked above.
s.604 - Appeal of decisions
Appeal against decision [2017] FWC 2424 of Deputy President Bull at Perth on 1 June 2017 in matter number U2017/51; appellable error established; discussion of relevant and irrelevant considerations; appeal upheld; decision quashed; matter remitted for a rehearing.
[1] Mr Adrian Manescu (Appellant) lodged an appeal, for which permission is necessary, on 22 June 2017 against a decision[1] (Decision) of Deputy President Bull dismissing his application for an unfair dismissal remedy made under s.394 of the Fair Work Act 2009 (Act).
[2] The Appellant was employed by Baker Hughes Australia Pty Limited (Respondent) and had worked for the Respondent for 19 years prior to his dismissal on 16 December 2016.[2] The Appellant was engaged as a geoscientist and the Respondent's reason for its decision to dismiss the Appellant from his employment was that of redundancy brought about by a business decision to implement changes in its operations, the result of which was that the job that the Appellant was performing was no longer required.
[3] The Respondent maintained that the dismissal of the Appellant was a case of genuine redundancy within the meaning of s.389 of the Act and so the dismissal could not be unfair within the meaning of s.385 of the Act. The Deputy President concluded that the Appellant's dismissal was not a case of genuine redundancy because the employer had not complied with the award consultative provision, specifically, the requirement that the employer provide "in writing" to affected employees all relevant information about the change.[3] The Deputy President ultimately concluded that the Appellant's dismissal was not unfair.[4]
[4] On 7 August 2017, a differently constituted Full Bench heard the Appellant's permission to appeal application (Permission to Appeal hearing). On 10 August 2017, that Full Bench granted the Appellant permission to appeal on the following grounds:
"Having considered the submissions, the Full Bench has decided to grant permission to appeal. It considers that ground 12 in the appellant's notice of appeal dated 21 June 2017 is arguable and has reasonable prospects of success, that the decision under appeal may consequently manifest an injustice, and therefore that it would be in the public interest to grant permission to appeal."[5]
[5] We discuss this ground of appeal further below.
[6] We have decided to uphold the appeal and to quash the Decision because we are persuaded that the Decision is attended by appellable error and the result manifests an injustice in the circumstance. The matter will be remitted to another member for re-hearing. Our reasons for doing so are set out below.
[7] The Deputy President sets out some background and a summary of the Respondent's contention concerning whether the dismissal of the Appellant was a case of genuine redundancy at [1] - [17] of the Decision. At [18] - [25] of the Decision the Deputy President summarises evidence given by the Respondent's human resources business partner for Australasia about the context in which the dismissal of the Appellant occurred, the redundancy process, consultation about the redundancy with the Appellant and efforts to redeploy the Appellant.
[8] The Deputy President summarises the Appellant's submissions at [26] - [30], and then deals with the question whether the Appellant was covered by a relevant modern award. The Deputy President concludes that in his employment as a geoscientist with the Respondent the Appellant was covered by the Professional Employees Award 2010 (Award),[6] and it may be inferred from the Decision that the Award applied to the employment.
[9] After setting out the relevant statutory provisions concerning whether the dismissal was a case of genuine redundancy,[7] the Deputy President first concludes that the Respondent no longer required the Appellant's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise.[8] Next, the Deputy President turned to consider whether the Respondent had complied with any obligation in, relevantly, the Award that applied to the employment to consult about redundancy. At [48] of the Decision the Deputy President sets out the terms of clause 9.1 of the Award which deals with consultation about major workplace change. At [52] the Deputy President concludes that the Respondent had not complied with the "Award consultative provisions by [not] placing . . . essential information relating to the redundancy in writing" with the consequence that the Appellant's dismissal was not a case of genuine redundancy.
[10] The Deputy President observes at [54] of the Decision that although it was not necessary for him to consider whether it would have been reasonable in all the circumstances for the Appellant to be redeployed within the Respondent's enterprise or that of an associated entity, he nonetheless expressed the view that on the evidence available, it would not have been reasonable to redeploy the Appellant. This was because there were no vacancies "either immediately available or available in the future" suitable for the Appellant and that the Respondent's evidence was that it had undertaken an unsuccessful review of its operations in an attempt to source alternative roles for the Appellant. We will return to this evidence later in this decision.
[11] The Deputy President then moves to consider the matters that he is required to take into account in determining whether the Appellant's dismissal was harsh, unjust or unreasonable.[9]
[12] In dealing with each of the matters the Deputy President concluded that as the reason for the dismissal of the Appellant did not relate to his capacity or conduct, the consideration of the matters set out in s.387(a), (b) and (c) did not arise.[10] At [61] of the Decision the Deputy President concludes that the Appellant was advised by the Respondent that he could have a support person present with him at the meeting to discuss the redundancy and possible dismissal but the Appellant did not avail himself of that opportunity. At [62] of the Decision the Deputy President concludes that the dismissal was not related to unsatisfactory performance. At [63] - [69] of the Decision the Deputy President makes some observations about the quality of human resources advice that was available to the Respondent. The Deputy President concludes notwithstanding these observations, the quality and extent of the advice did not impact upon the outcome. Importantly for the purposes of this appeal, that conclusion is reached because of the Deputy President's conclusion as to the impact of consultation on the final outcome set out at [71] - [72] of the Decision. This much is clear from [69] of the Decision at which the Deputy President says "[H]owever for the reasons provided below these observations don't impact on the final outcome". We set out below some of those observations because they will provide some context to matters that we will later discuss in this decision:
[65] Mr Jayapragasm (sic) did not give the impression that he was fully conversant with Australian employment law. Despite the large number of redundancies already undertaken in Australia, it appeared no consideration had been given as to whether the applicant was covered by a modern award, hence the failure to follow the Award consultation requirements.
[66] Mr Jayapragasm's (sic) explanation as to why the applicant was requested to sign a Release Agreement (which he refused) to release the respondent from all claims arising out of his employment and termination of employment in return for his statutory redundancy entitlements under the Act was difficult to comprehend.
[67] Considering the applicant's purported senior position and his 17 years of direct employment with the respondent, providing the applicant at 11.00am with notice of a meeting to be held the same day at 3.00pm, without any notice of its purpose, and the holding of a 15 minute meeting to explain the review and its effects, and to discuss measures to avert or mitigate its adverse effects on Mr Manescu appeared somewhat perfunctory, as did the meeting the following day of the same duration.
[68] The evidence provided by Mr Jayapragasm (sic) was scant on the actual time the decision concerning the restructure of the geoscience function was made, by whom and who undertook the potential redeployment exercise in respect of the applicant.[11] [Endnotes omitted]
[13] The Deputy President continues at [70] of the Decision to conclude that there was no lack of dedicated human resources management specialists or expertise which was likely to have impacted on the procedure followed in effecting the dismissal.
[14] The Deputy President then turns his consideration to any other relevant matter and at [71] - [72] he concludes as follows:
[71] I have considered all of the evidence and find that the position occupied by the applicant was redundant. The failure to provide the applicant with written advice regarding his redundancy as required by the Award has not been demonstrated in the applicant's circumstances to have caused unfairness to the extent that the redundancy could be found to be harsh, unjust or unreasonable.
[72] The applicant conceded during the hearing that had the respondent provided the written advice as required under the Award, it would have made no difference to the outcome.[12]
[15] As we have earlier observed, the Deputy President ultimately concluded that the dismissal of the Appellant was not harsh, unjust or unreasonable and consequently the Appellant's claim for an unfair dismissal remedy was dismissed.[13]
[16] The Appellant's notice of appeal contains numerous grounds of appeal which we do not repeat. It is necessary only that we deal with one ground of appeal, namely ground 12.
[17] By appeal ground 12, the Appellant contends that the Deputy President erred by concluding that the Appellant conceded during the hearing that had the Respondent provided written advice, as required under the Award, it would have made no difference to the outcome of being made redundant. The Appellant submits that there was no evidence to support this conclusion and by drawing such inferences, the Deputy President erroneously applied the evidence, or lack thereof, before him.
[18] In support of his appeal ground, the Appellant submits that the Deputy President failed to explore and consider the alternative options to the redundancy that were put forward by him and in doing so, the denial of the opportunity to call evidence regarding the alternative options led to an error regarding the finding that the termination of the Appellant was not harsh, unjust or unreasonable.
[19] Additionally, the Appellant submits that redeployment opportunities within the Respondent's business, or elsewhere were not discussed with him at any time during the redundancy process and were somewhat of a "farce", resulting in a failure by the Respondent to discharge its obligations under the Act.[14]
[20] The Appellant contended that the failure to provide the Appellant with written advice about the redundancy as required by the Award caused unfairness to the extent that the dismissal on redundancy grounds was unreasonable. According to the Appellant, if the Award consultation provisions had been observed, the business development manager role or reservoir engineering role would have been identified and discussed.[15]
[21] The Respondent contends that the Appellant relies on selective excerpts of transcript to make good his point without also referring to further enquiries made of him by the Deputy President to the effect that the ultimate result would have been dismissal on redundancy grounds notwithstanding the failure to reduce to writing relevant information as required by the Award. It contends further that even if the Deputy President had reached a wrong conclusion about the Appellant's concession, this did not change the substantial finding made by the Deputy President at [71] of the Decision which was that "the failure to provide the applicant with written advice regarding his redundancy as required by the Award has not been demonstrated in the applicant's circumstances to have caused unfairness to the extent that the redundancy could be found to be harsh, unjust or unreasonable".[16]
[22] For the reasons that follow we reject the Respondent's contentions summarised above and we consider the Appellant has made good ground 12 of the notice of appeal.
[23] Respectfully, the Respondent's submission suffers three obvious flaws. First, as will be shortly evident, it does not accurately reflect the nature of the exchanges between the Deputy President and the Appellant. Secondly, it does not address that which underlines the Appellant's complaint founded in the ground of appeal. That is, by wrongly concluding that the Appellant had made the concession set out at [72] of the Decision, the Deputy President took into account an irrelevant matter (the concession) and did not take into account the (relevant) matters the Appellant had identified that could have been discussed and explored had the Respondent complied with its consultation obligations. The ultimate conclusion to which the Respondent points, was on the face of the Decision, made without the benefit of taking into account the matters to which the Appellant pointed in his answer to the question posed by the Deputy President.
[24] Thirdly, the submission fails to come to grips with that which is required by the Award to be communicated "in writing". It is not, as the Respondent submits, "written advice about his redundancy", rather, that which the Respondent was required to give to the Appellant in writing was "all relevant information about the changes" including "the nature of the changes proposed", "the expected effects of the changes" on the Appellant and "any other matters likely to affect the Appellant".
[25] In addition, as will become evident later, the Deputy President's conclusion that the Respondent's failure to comply with its consultation obligations would not have altered the result appears, at least in part, to have been made on the basis of a submission by the Respondent made from the bar table as to the existence of a position into which the Appellant could have been redeployed or in relation to which he could been an applicant, did not exist. That submission was wrong. It therefore was likely to have misled the Deputy President and his observations about redeployment at [53] - [54] of the Decision are clearly influenced by that submission.
[26] Dealing first with the "concession" point, we set out below the two relevant exchanges between the Deputy President and the Appellant. The first, which occurred during the Appellant's evidence, was as follows:
Let's just assume you were provided the information in writing, what difference would that make to your position?---I could have been employed.
Sorry?---I could have chance to justify to continue to be employed. I suspect that my annual leave, this oil industry business is very cyclical, I am almost sure that in a couple of months, or maybe years, the oil prices will go up again and also the work is already won for Woodside, in which they used my CV as a qualifying support person for tender. So I would say that my work is still here, even if the revenue is not generated. So if they were notifying me in writing I could have pointed this all to them, I could have pointed to them that my six months' annual leave is still part of my work and I can be back in six months' time doing the work for Woodside.
Yes?---As I started asking the HR representative there are only two items which were discrepancy for me, in my first meeting, in the first meeting they haven't told me that they are going make redundant the geological and reservoir engineering position, both, and the reason for it, it's pretty clear, they wouldn't have told me about things which they are going to do to other people, and they haven't told me about the support work being done from Kuala Lumpur. So, yes, probably I lost the occasion to ask the respondent if they still have the other two people, from Brisbane and Adelaide, on their payroll. Maybe they will be able to answer this question without being sworn in. Two other people doing similar type of work as me. I hope I'm not wasting your time. If you have any questions you can - - -[17]
[27] Two things are plain from this exchange. First, there is no concession that compliance by the Respondent with its obligations to consult under the Award would not have made a difference. The contrary is clearly put by the Appellant. Secondly, the Appellant posits the difference proper consultation might have made. As is evident from the above, he said that he could have discussed with the Respondent the possibility of taking his accrued leave as an alternative to a dismissal and the opportunities that may have opened up during the period of any accrued leave. The Appellant had earlier also given evidence about a number of positions about which he became aware and which could have been disclosed or identified had the employer complied with its obligations to consult. That evidence is set out below:
There's one here called petrophysicist advisor, is that what you're talking about, Aberdeen? That's not it?---It's an Oilpro jobs, business development wanted. It says:
Business development manager, Perth, Australia. This position sells products and services to existing and new customers. Develop and maintain sales strategies for major accounts, build strong customer relationships - - -
Where do I find that document?---It was sent with the last - it's pdf file sent in April.
In your April submission, is it? All right?---In my April submissions, yes. The other one, which was the petrophysicist advisor, it was just presented as a type of job tasks. It shows that I do the same duties as scientist grade 4, it's an old advertisement from 2010 or 2011 I believe, just to show a description of my job duties.
So the business development manager, is that what you're talking about?---Yes.
That's in Houston, is that right?---No, no, Perth, Australia.
So you say you're qualified to do that job?---I should at least be allowed to apply. I'm not so sure, I think that job has gone to someone else.
No one said you couldn't apply for it, did they?---No one also told me that I can apply for it. The position was not advertised, was not told. I think it was that type of job which was earmarked for a certain person.
What I need to know, when you were made redundant was that position available at the time or not?---I wouldn't be able to answer.
Well, that's what your case rests on, doesn't it?---Not only. My case - there were several other jobs.
What are they?---The other email which shows another job, which was advertised at the end of January 2017.
Yes, but it wasn't advertised when you were made redundant?---I could have taken one month annual leave and be ready for when that job appears.[18]
[28] The second exchange occurred later in the proceedings, during the course of submissions made by the Appellant. The exchange is recorded in the transcript:
THE DEPUTY PRESIDENT: The employer says that there was no work for you to do and they didn't foresee any work in the near future. It had nothing to do with your performance.
MR MANESCU: Yes, I agree with that, but I also provided the evidence that there was a lot of work. I hope that I will be believed.
THE DEPUTY PRESIDENT: Well, I am not sure you have done that.
THE DEPUTY PRESIDENT: I am not sure that you have provided the evidence. The witness for the respondent says that none of your work has been done for the last five months.
MR MANESCU: If you don't build it, it is not coming.
MR MANESCU: If you don't build it, it is not coming.
THE DEPUTY PRESIDENT: Yes, I understand that, but if you don't want you to market it or propose it, then that is their decision.
MR MANESCU: Yes, I agree. I agree that they can have this decision, but my point is that the work is still here and it is impossible to be checked and controlled. The secret meeting in which the geoscientist from KL was working and done work cannot be verified. I don't know if anything for the last couple of months. That doesn't exactly mean that it need to be a monetary exchange. It could be a contract one based on this. And that is still work. Work is not only dollars. Work is also the science work which I was doing. And I understand they don't want me to be there anymore. Okay, let's see then if they follow the correct procedures. Have they consulted me?
THE DEPUTY PRESIDENT: Yes, but what we are trying to work out is had they followed what you say is the correct procedure, what would the result have been? If they decide they don't want your scientific research work to be done then putting it in writing and so forth, what would have made them change their mind?
MR MANESCU: If they decided that they wanted to fire me, I have nothing I can change their mind. This is what I am arguing, that they already decided.
THE DEPUTY PRESIDENT: I mean, if they had fired you for poor performance, that would be another matter.
THE DEPUTY PRESIDENT: We can actually get down to whether your performance was that bad that it justified termination. But in this case, the employer simply says: "We don't want that work done anymore."
MR MANESCU: I agree with that and they should probably have discussed it with me.
MR MANESCU: Look for options which have never been looked at. So I am still looking and I still not confirm if they raise issues, whether those two petrophysicists are (indistinct).
THE DEPUTY PRESIDENT: I didn't understand what you said then. Say that again?
MR MANESCU: So we discussed about two petrophysicists being sent on Middle East account, being sent in Middle East.
MR MANESCU: We would like - I would like that to be confirmed under oath by them.
THE DEPUTY PRESIDENT: Well, it is a bit late now, Mr Manescu.
MR MANESCU: Agree. Also, I haven't seen any options canvassed about my future jobs. If they had done it - I think I am a bit entitled to see a bit of email exchange.
MR MANESCU: Which since they haven't presented, I believe it was not done.
THE DEPUTY PRESIDENT: The problem is you should have asked Mr Jayapragasam all these questions.
MR MANESCU: I haven't asked, but they also have not proved.
THE DEPUTY PRESIDENT: I mean, I would have liked to have seen some emails and all the rest of it, but I can't run your case for you.
MR MANESCU: There were several other jobs available at that time which I have not been allowed to apply. Those are my argument.
THE DEPUTY PRESIDENT: What job weren't you allowed to apply for?
THE DEPUTY PRESIDENT: The ones you have taken us to that you say was advised in November.
THE DEPUTY PRESIDENT: Well, who said you couldn't apply for it?
MR MANESCU: Because I haven't told about it.[19]
[29] Contrary to the Respondent's contention, the exchange recorded in the transcript extracted above does not support a conclusion that the Appellant made a concession that the absence of consultation would not have made a difference to the outcome. It seems to us that the Appellant was simply making an observation that if the Respondent had made up its mind to dismiss him there was nothing he could do to change its decision. He also says "this is what I am arguing, that they already decided", which makes it plain he is not conceding that consultation would not have made a difference. The Appellant's point was that the Respondent had closed its mind and that there was no consultation.
[30] It is also apparent from the extracted transcript that the Appellant points out that there were several positions available at or around the time of his dismissal for which he could have applied, but did not apply because he was not told about their existence.[20] He also points out that had he been given the opportunity to take accrued leave he would likely have become aware of the positions advertised only a month after his dismissal and in relation to which he could have been an applicant.[21] Thus, if proper consultation as required by the Award had occurred, rather than the perfunctory consultation that took place, there was the real possibility that the positions would have been identified, therefore raising the possibility that compliance with the consultation obligations would have made a difference.
[31] It is necessary here to briefly examine that which is required by the consultation provisions of the Award. First, when an employer has made a definite decision to introduce major changes, organisation or structure, as was the case here, that is likely to have significant effects on employees, the employer must notify employees who may be affected by the proposed changes.[22] This requires notification of the decision to introduce the major change. This notification necessarily precedes any decision to terminate employment by reason of redundancy consequent upon the introduction of the major change.
[32] Secondly, significant effects include termination of employment.[23] Thirdly, there is an obligation on the employer to discuss with the employees the introduction of the change, the effects the change will likely have on employees and measures to avert or mitigate the adverse effects of such changes on employees. In addition, the employer is required to give prompt consideration to matters raised by the employees in relation to the change.[24] Fourthly, the discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes.[25] The quality of matters that are raised by employees is necessarily contingent upon the nature of the information provided by the employer to the employees about the matters referred to above.
[33] It is for this reason that the employer is required "for the purposes of such discussion" to provide "in writing" to the employees concerned "all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matter likely to affect employees" except for certain confidential information.[26]
[34] That a requirement to consult is more than a mere formality should not have to be restated. As Gray J observed in his concurrence in QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia:[27]
"Even though management retained the right to make the final decision, it is not to be assumed that the required consultation was to be a formality. Management has no monopoly of knowledge and understanding of how a business operates, or of the wisdom to make the right decisions about it. The process of consultation is designed to assist management, by giving it access to ideas from employees, as well as to assist employees to point out aspects of a proposal that will produce negative consequences and suggest ways to eliminate or alleviate those consequences. In his reasons for judgment, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd [2010] FCA 591; (2010) 198 IR 382 at [117]- [129], the primary judge set out several examples of suggestions by employees, in response to the letters of 22 January 2010, which management implemented by making changes to its original proposals. Proper consultation prior to the sending of those letters would have been likely to reveal those suggestions, and perhaps many others that would have been of value to management in deciding how to implement the privatisation decision."[28]
[35] It appears to us plain from the evidence before the Deputy President that the Appellant was advised about the Respondent's decision to introduce the change on 15 December 2016. This was the same meeting which had been convened as a "one-on-one consultation meeting".[29] That which occurred at the consultation meeting and at a subsequent meeting the following day is described in the evidence of Mr Jayapragasam as follows:
Adrian was invited to attend a one-on-one consultation meeting on 15 December 2016 with Roger Marsh, Geoscience Manager (Roger) and me.
Prior to the consultation meeting I informed Adrian, via a meeting invite I had sent him, that he could have a support person at the consultation meeting.
24. Adrian arrived half an hour late to the consultation meeting without a support person.
25. During the consultation meeting, Roger informed Adrian that:
(a) a review of the geoscience function had been undertaken;
(b) the review identified that due to loss of clients and diminished work and revenue across the whole business, and in particular wireline and drilling activity in Australia, the support services provided to that function, including petrophysics, reservoir engineering and geology needed to be restructured;
(c) due to the low activity the decision had been made to rationalise the geoscience function to meet current demand, noting that additional geoscience expertise was available in Kuala Lumpur should support be required, and, as a result, three positions (one being the Role) have been made redundant;
(d) the review and the restructure were driven by the operational and business needs of the business; and
(e) the restructure will result in the Role being redundant.
Adrian was provided with an opportunity to ask questions and provide feedback during the consultation meeting. Adrian raised questions about his promotion back in his earlier days of employment. Adrian raised concerns regarding his spouse not being offered a job by his previous managers, which never happened. Adrian raised questions on overtime payments. Roger and I listened to what Adrian had to say and we considered his feedback, however, nothing was raised by Adrian that altered the business needs, or position of, Baker Hughes. As such, the proposed restructure was confirmed.
As at 15 and 16 December 2016, the business reviewed suitable alternative roles to which Adrian may be redeployed. However, it was determined that at the time there was no appropriate position for Adrian to be redeployed to having regard to his skills, qualifications and experience.
A second meeting was scheduled for 16 December 2016. It was attended by Roger, me and Adrian.
Immediately prior to the meeting on 16 December 2016, Adrian emailed me with information about a range of matters not previously raised during the course of his employment including but not limited to issues concerning bonus payments, leave and the amount of work performed.
The email feedback was taken seriously and was considered by me, Roger and Michael Tomasz (Baker Hughes Legal Counsel), though it did not impact on the decision to restructure or the fact of the Role being redundant.
Accordingly, it was in the meeting on 16 December 2016 that Roger and I informed Adrian that the Role was redundant and that his employment would come to an end on 16 December 2016 on the basis of redundancy.
Following the meeting on 16 December 2016, a letter confirming the termination on the ground of redundancy was provided to Adrian. Annexed to this statement and marked IJ-2 is a true copy of the letter of termination.[30]
[36] From the evidence above, it is clear that no written information was provided for the purposes of the discussion as required by clause 9 of the Award. It is therefore unsurprising that measures that might avert or mitigate the adverse effects of the introduction of the change on the Appellant were not discussed. This plainly included the opportunity to redeploy into or apply for other vacant positions and the option to take accrued leave as an alternative to dismissal. We endorse the Deputy President's description of the so called consultation meetings on 15 and 16 December 2016 as "perfunctory".[31]
[37] As to the option to take accrued leave, the evidence given by Mr Jayapragasam suggesting that the issues raised by the Appellant were given serious consideration is simply not borne out on any material before the Deputy President apart from the bold assertion made by the witness. First, the email from the Appellant raising the issues was sent at 12:42 p.m. on 16 December 2016. Secondly, the second meeting between the Respondent's representative and the Appellant occurred at about 2:15 p.m. on 16 December 2016. Thirdly, a reply to the email is sent at 2:27 p.m. to the effect that "HR would investigate and will reply to your points below". This is after the meeting had commenced and probably after it had concluded, unless Mr Jayapragasam was responding to emails during the meeting with the Appellant instead of focusing his attention on the actual meeting. Fourthly, it is not apparent that a reply was in fact given. There was no evidence before the Deputy President that a response had been given in the meeting on 16 December 2016. There is no mention of the issue in the letter of termination.[32] Fifthly, the Appellant was advised during the meeting on 16 December 2016 that his employment would come to an end on that day for reasons of redundancy. Therefore there seems to be little time during which "serious consideration" could have been given.
[38] There is simply no basis on which it could be concluded that the Appellant's request for a consideration that he take accrued leave instead of having his employment terminated was considered at all, let alone given serious consideration. The Respondent was obliged to give consideration to this under the terms of the Award but did not do so. The haste with which it gave perfunctory attention to its consultation obligations doubtless contributed to this omission. This was the point that the Appellant was endeavouring to make before the Deputy President, that is, compliance with the Respondent's consultation obligations might have made a difference and contrary to the finding made by the Deputy President, the Appellant made no concession that it would not have made a difference.
[39] From the above we consider that the Deputy President erred in attributing to the Appellant a concession he did not make. The Deputy President's conclusion that the Respondent's failure to comply with its consultation obligations did not result in any unfairness was, on a proper reading of the Decision, plainly influenced by his finding as to the concession. The Deputy President therefore took into account an irrelevant consideration. In the context of the evidence as a whole and the haste with which the Respondent undertook the so-called consultation, that consideration cannot be said to have had no influence on the Deputy President's ultimate conclusion that the dismissal was not harsh, unjust or unreasonable. By taking into account that irrelevant consideration the Deputy President did not turn his mind to the impact of the perfunctory consultation on the final outcome nor did he consider the matters to which the Appellant pointed, and which we have earlier discussed.
[40] We turn next to deal with a matter foreshadowed earlier, that is that the Deputy President appears to us to have been misled by a submission from the bar table about the availability of positions into which the Appellant might have been redeployed or alternatively for which he might have been an applicant.
[41] Before the Deputy President, an issue had arisen as to the availability of a position that the Appellant maintained had been advertised for a business development manager with the Respondent in Perth. We have earlier extracted the relevant transcript. Thereafter an exchange between the Deputy President and Mr Tomasz is recorded in the transcript as follows:
"So the two more points that have been raised by Mr Manescu, in relation to the Oilpro job ads, we have checked with our HR and recruitment team. Both ads that have been put forward by Mr Manescu, we questioned. The one in relation to business development manager, nobody seems to have reference of whatsoever. We are not necessarily convinced it is a legitimate ad. We can confirm that the other ad that was raised at the end of - - -
THE DEPUTY PRESIDENT: All right. So just let me have a look at that. I will have to find that again now. It is in exhibit A4, is it?
MR THOMASZ (sic): It is in his outline of submissions.
MR THOMASZ (sic): Hang on. Apologies. We will find it for you. There you go. What is that? Yes, there we go. There was another one, right, before that. I am not sure if you can see it. Was it this one here?
THE DEPUTY PRESIDENT: Which job do you say you are not convinced is a - - -
MR THOMASZ (sic): This is the business development manager.
MR THOMASZ (sic): It says Perth, Australia, but we are not aware of that ad or any role for a business development manager being put up after checking with our recruitment team. It seems - - -
MR MANESCU: That job, does it sound a bit like his job now - Roger's your job now? Roger's?
MR MANESCU: My previous manager. My previous manager. Doesn't it sound a bit like that one?
MR THOMASZ (sic): Not necessarily, no. But I mean, I can only got on the advice that I have been provided.
THE DEPUTY PRESIDENT: It would have been helpful if you had asked Mr Manescu in the witness box about that, anyway.
MR THOMASZ (sic): I did sort of question the fact whether or not he confirmed with Baker Hughes whether or not that role was valid and he said you hadn't.
MR MANESCU: Yes, I sent an email to Roger. I emailed to all the people.
MR THOMASZ (sic): Did you get a response in relation to that?
MR THOMASZ (sic): So you couldn't confirm one way or the other whether or not the - - -
MR MANESCU: Well, but based on the job - Roger's job (indistinct).
THE DEPUTY PRESIDENT: I don't understand, Mr Thomasz (sic). Why are people advertising under your logo jobs that don't exist?
MR THOMASZ (sic): Well, that is an excellent question. That is what we don't understand because we can confirm that the other job that was put up, we have checked with our recruitment team and they have confirmed the fact that, yes, it was a job, but it was a job in relation to Africa and they have checked the reference against it. The problem with this is that there is actually no reference to a job number or anything along those lines. This is all the information that we have been provided and we have been unable to source this job application or job advertisement from doing or own searches.
MR THOMASZ (sic): I just wanted to flag this. We just didn't know. But, in any event, it wouldn't have changed the position anyway because we don't believe that Mr Manescu has got the appropriate skill set that would necessarily link into that particular role."[33]
[42] During the proceeding before the Deputy President, Mr Jayapragasam gave evidence about the redeployment opportunities that were said to have been considered by the Respondent. The Appellant gave evidence and submitted that a potential role (the business development manager) in to which he could have been redeployed was not considered or identified by the Respondent. As is evident from the transcript above, the Respondent asserted that it was not convinced that the job identified by the Appellant was a "legitimate ad" and that after making enquiries with the human resources department, "nobody seems to have reference of whatsoever".[34] The Appellant did not cross-examine Mr Jayapragasam on this point. In the circumstances of an unrepresented litigant, this is relevant but ought not be fatal.
[43] At the Permission to Appeal hearing, the Appellant submitted that the advertisement was legitimate and sought to make good this point by submitting evidence of email correspondence between the Appellant and a representative of Oilpro (networking website for the oil and gas community)[35] which provided the following:
"Subject: Re: Contact Support - aimanescu@yahoo.com.au
All the jobs on Oilpro jobs are real but if Baker Hughes doesn't have the job active, it wouldn't be on Oilpro. Our job board is linked with theirs. The reason we write about particular jobs like that in a post is to generate more traffic for those good positions.
To view all the jobs on Oilpro, visit: http://oilpro.com/jobs/search
[44] In its submissions opposing permission to appeal, the Respondent contended that "it had no knowledge of this job advertisement, that the Applicant did not apply for this role and that, in any event, the Applicant does not have the necessary skill set for a Business Development role".[37]
[45] Turning now to the appeal proceedings, the Respondent initially submitted that "it had no knowledge of this job advertisement and Mr Manescu acknowledges that he never sought to enquire about this position or apply for this position (if it existed). Baker Hughes also notes that this website, Oilpro, has ceased to operate".[38] It is relevant to observe that the Appellant produced evidence of the job advertisement in his submissions pertaining to the unfair dismissal remedy application on 21 April 2017 (albeit it did not appear to specify a specific job number) and from that point in time, the role ought to have been on the Respondent's radar. The Appellant provided further material about the existence of the role in his permission to appeal submissions (the Oilpro email correspondence) and in his appeal submissions. The latter identified the role with an allocated job number: 1606472.
[46] During the hearing before us, the Respondent was asked about its knowledge of the business development manager role and the following exchange is recorded in transcript:
"MR TOMASZ: The business development manager role is very strange, because in our original evidence we refuted the fact that that role even exists. The evidence that we have undertaken indicates that there is no evidence that we've had that role in place, and the research that we've done, they've come back and said they're not aware of that particular role. That's our first submission that we don't believe it's there, and Mr Manescu seems to be relying on a third party website to basically say that this role is valid.
DEPUTY PRESIDENT GOSTENCNIK: But he also relies upon a conversation that he had with a person who applied for the role.
MR TOMASZ: Yes, but we also note that that's basically hearsay. It hasn't actually been adduced into evidence
DEPUTY PRESIDENT GOSTENCNIK: You've had that document - it has a job number. Have you made inquiries about it?
MR TOMASZ: Yes, we have, and my understanding is that there's no reference to that particular role, which is what - it was the original - - -
DEPUTY PRESIDENT GOSTENCNIK: Sorry, who made the inquiries?
MR TOMASZ: Once we found out about that, I asked the HR team to investigate whether or not such a role exists and they came back and said they're not aware of any particular role.
COMMISSIONER CRIBB: With that particular job number?
MR TOMASZ: Yes, correct. I know, it seems very strange. This is what's sort of thrown us as well; it's like going where - and on top of that, we're not also not aware of any - - -"[39]
[47] We thought it prudent to require some evidence about the matters asserted above and so we allowed the Respondent an adjournment to prepare and file a witness statement of Mr Jayapragasam. We also requested that the Appellant, after having an opportunity to review that witness statement, indicate whether he wanted an opportunity to cross-examine Mr Jayapragasam. On 3 November 2017, the Appellant indicated that he would like an opportunity to cross-examine Mr Jayapragasam and the matter was listed for 18 January 2018.
[48] Mr Jayapragasam's evidence was that on 18 January 2017, Mr Tomasz asked him to investigate the Oilpro job advertisement.[40] It appears that at this stage, the Respondent did not have a physical copy of the job advertisement, but was simply investigating the role in response to a claim made by the Appellant in correspondence that had been sent to the Commission before the matter was conciliated. He says that on the same day, he made enquiries with the Respondent's recruitment team and asked them whether any jobs had been advertised on the Oilpro website by Baker Hughes and that he was unable to provide a specific job number.[41] On 20 January 2017, Mr Jayapragasam received a response from the recruitment team who informed him that they had no knowledge of any roles being advertised on Oilpro in 2016 and that he relayed that information to Mr Tomasz on 20 January 2017.[42]
[49] Prior to the hearing before the Deputy President, the Appellant filed, as part of his submissions, evidence of the existence of the Oilpro job advertisement. Mr Jayapragasam states that he did not make any further enquiries with the recruitment team regarding this advertisement because the advertisement did not specify a job number and based on his enquiries in January 2017, the Respondent does not advertise on the Oilpro website.[43]
[50] Mr Jayapragasam says that on 27 September 2017 he again made enquiries with the Respondent's recruitment team regarding the business development manager role, but this time with specific reference to the job number: 1606472.[44] He says that on the same day the recruitment team told him that the job number enabled discovery of some information about to the role including that:
the advertisement was for a role in the downstream chemical business;
it was advertised on the Respondent's website only, not Oilpro;
it was first advertised on 15 November 2016;
due to changes in requirements of the role, the advertisement was cancelled and on 13 January 2017, another advertisement with the job number: 1701401 was posted on the internal and external career section of the Respondent's website; and
• the role was filled on 17 February 2017.[45]
[51] Mr Jayapragasam attached to his witness statement a copy of a job advertisement which he says was a copy of the 1701401 job number.[46] However, the job advertisement that was attached to Mr Jayapragasam's witness statement did not identify a job number and consequently, it was difficult to reconcile the differences between the first job advertisement (1606472) and the second job advertisement (1701401). We therefore allowed the Respondent a short adjournment to enable it to produce a copy of the job advertisement attached to Mr Jayapragasam's witness statement with an identifiable job number. On resuming, it was apparent that there were 3 different purported job advertisements, the relevant parts of which are reproduced below:
- 5+ years ' experience in technical sales management / business development in downstream chemicals[47]
Job Advertisement attached to Mr Jayapragasam's Witness Statement
- 5+ years' experience in technical sales management / business development in water treatment in downstream chemicals
- 5+ years ' experience in technical sales management / business development in water treatment in Australia
[52] It is clear from the above that the job advertisement attached to Mr Jayapragasam's witness statement is not the same as that which we allowed into evidence during the proceeding, raising serious question the reliability of the evidence given.[50]
[53] In any event, it is clear from the evidence that a business development manager role was real and existed at the time the Appellant was dismissed. The Respondent made no proper inquiries as to the existence of the role at the time the decision was made to dismiss the Appellant. Those inquiries were only made after the Appellant's employment had been terminated. The Respondent misled (we do not say it was deliberate) the Deputy President when it asserted without proper inquiry that the role did not exist. Consequently, the Deputy President did not take in account a relevant matter in determining that the Appellant's dismissal was not harsh, unjust or unreasonable. That the Respondent did not make proper inquiries was acknowledged by it during the hearing before us is apparent from the transcript excerpt.[51]
[54] Whilst we note the Respondent's assertion that the Appellant is or was not suitable for appointment to the position, this will be a matter of evidence and argument. The Appellant was not given an opportunity to test that assertion at the time of the hearing because the existence of the position was wrongly denied by the Respondent.
[55] It follows from our analysis above that appellable error has been established. Given the potential significance of the irrelevant consideration taken into account, the relevant matters not taken into account and the erroneous submission of the Respondent as to the existence of the business development manager position, the Deputy President's conclusion as to the fairness of the dismissal manifests an injustice.
[56] In the result, the appeal should be upheld and the Decision quashed.
[57] For the reasons given we order that:
The appeal is upheld.
The Decision in [2017] FWC 2424 is quashed.
The Application be remitted to Commissioner Cribb for a rehearing.
Mr M Tomasz, in-house counsel for Baker Hughes Australia Pty Ltd
[2] Form F2 - Unfair Dismissal Application, dated 3 January 2017 at question 1.3
[5] Email correspondence from Vice President Hatcher's chambers to Appellant and Respondent, dated 10 August 2017 at 4:26PM
[6] [2017] FWC 2424 at [31] - [39]
[14] Transcript dated 27 September 2017 at PN 247
[17] AB 53 - AB 54, PN 363 - PN 365
[18] AB 48 - AB 49, PN 322 - PN 335
[19] AB 86 - AB 89, PN 700 - PN 739
[20] AB 89, PN 733 - PN 739
[30] AB 153 - AB 154 at [22] - [32]
[33] AB 71 - AB 74, PN 528 - PN 555
[34] AB 71 - 72, PN 528 and PN 538
[36] Applicant's Outline of Submissions on Permission to Appeal, undated at Attachment 5
[37] Respondent's Outline of Submissions Opposing Permission to Appeal, undated at [21]
[38] Respondent's Outline of Submissions on Appeal, dated 19 September 2017 at [69]
[39] Transcript dated 27 September 2017 at PN 428 - PN 436
[40] Witness Statement of Mr Ignatius Jayapragasam dated 29 September 2017 at [12]
[46] Transcript dated 18 January 2018 at PN 858
[48] Witness Statement of Mr Ignatius Jayapragasam dated 29 September 2017 at IJ-1
[50] Transcript dated 18 January 2018 at PN813 and PN 866 - PN 873
[51] Transcript dated 18 January 2018 at PN 1140 - PN 1147
Printed by authority of the Commonwealth Government Printer
Mr Adrian Manescu
Baker Hughes Australia Pty Limited [2018] FWCFB 403
(2010) 198 IR 382
(2010) 204 IR 142