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[2021] FWC 3033
General information, not legal advice.
Fair Work Commission
2021-07-09
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - whether dismissal was a case of genuine redundancy - job no longer required to be performed by anyone - redundancy a result of changes in operational requirements - no award or enterprise agreement covers or applies to applicant giving rise to consultation obligations - not reasonable in all the circumstances to redeploy applicant - objection regarding genuine redundancy upheld - application dismissed.
[1] Mr Pulkit Madan (Applicant) has filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). By way of that Application, the Applicant claims that he was dismissed from his employment with Metcash Trading Limited T/A Metcash (Respondent) on 15 October 2020, and that his dismissal was "unfair" within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).
[2] In the Form F3 Employer Response filed with the Commission, the Respondent asserts that the Applicant's dismissal was a case of "genuine redundancy" within the meaning of s.389 of the Act.
[3] Following the receipt of submissions and evidence in accordance with directions made, I held a hearing in Sydney to resolve the Application. The Applicant appeared for himself. Mr Mark Sant (HFW Australia) appeared with permission for the Respondent. Following that hearing, written closing submissions from both parties were filed.
[4] Having had regard to the evidence tendered, and the submissions of the parties on the facts and the law, I have determined that the Applicant's dismissal was a case of "genuine redundancy" within the meaning of the Act. My reasons for this decision follow.
[5] The Respondent sought to be represented by a lawyer in this matter. The Applicant did not oppose the Respondent being represented. Pursuant to the discretion afforded to me under s.596 of the Act, I granted permission to the Respondent to be legally represented by solicitors from HFW Law. I made this decision on the basis that the matter has some complexity given the large number of factual disputes between the parties, with ten witness statements tendered as to such factual issues. In my view, by reference to s.596(2)(a) of the Act, the proceedings would be conducted more efficiently with the involvement of legal representation on behalf of the Respondent.
[6] The Respondent tendered the following witness statements into evidence:
(a) Witness Statement of Ms Jane Kalogeropoulos dated 4 January 2021;
(b) Witness Statement Ms Fiona Harding dated 4 January 2021;
(c) Witness Statement of Mr Ricardo Castillo dated 4 January 2021;
(d) Witness Statement of Ms Emma Wallis dated 22 December 2020;
(e) Witness Statement of Mr Ali Nabi dated 22 December 2020;
(f) Witness Statement of Mr Simon Williams dated 22 December 2020;
(g) Further Witness Statement of Mr Ricardo Castillo dated 29 January 2021;
(h) Witness Statement In-Reply of Mr Ali Nabi dated 1 February 2021;
(i) Witness Statement In-Reply of Mr Simon Williams dated 1 February 2021;
[7] The Applicant tendered the following witness statement into evidence:
(a) Witness Statement of Mr Pulkit Madan (undated).
[8] Having regard to those statements, and the cross-examination at the hearing, I find the following to be the relevant factual background (at least, for the purposes of determining the question of genuine redundancy):
(a) The Applicant commenced employment with the Respondent on a 1-month contract on 28 October 2019.[1]
(b) The Applicant was offered, and accepted, a permanent position with the Respondent beginning on 9 December 2019, as a Produce Strategy Analyst.[2]
(c) In July 2020, the Applicant met with his manager, Simon Williams regarding his performance, and was informed that he would be placed on a Performance Improvement Plan (PIP).
(d) In mid-2020, the Respondent implemented organisational changes to its business operations.[3]
(e) On 14 September 2020, the Applicant was notified in a meeting with Mr Williams that due to organisational changes, the Applicant's role with the Respondent was likely to be made redundant, to take effect from 15 October 2021. The Applicant was asked to respond to the proposal during this meeting. A further meeting was also set down to obtain any further response or feedback that the Applicant wished to provide in respect of his proposed redundancy.[4]
(f) On 15 September 2020 the Applicant was informed of other available roles within the company, and encouraged to apply for these (redeployment) opportunities.[5]
(g) On 16 September, the Applicant met with Mr Simon Williams and Ms Carlie Relf, People Advice Centre Supervisor for the Respondent, to discuss the redeployment opportunities he was interested in.[6]
(h) The Applicant had a further meeting with Mr Williams on 17 September 2020 to discuss the Applicant's response and feedback on the redundancy proposal. The Applicant did not provide any feedback. He was informed that his position would be made redundant, and he was given notice confirming that his last day or employment would be 15 October 2020.[7] This was also confirmed in writing to the Applicant on 18 September 2020.[8]
(i) The Applicant was unsuccessful in redeployment, and his employment ended with the Respondent on 15 October 2020 (being his date of dismissal).[9]
[9] Section 385 of the Act qualifies a claim for unfair dismissal:
A person has been unfairly dismissed if the FWC is satisfied that:
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388."
[10] Before the Commission can consider issues of harshness, etc, sub-section 396(d) of the Act requires that the Commission decide whether the dismissal was a case of "genuine redundancy":
"396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy."
[11] Section 389 provides the statutory definition as to what qualifies as a "genuine redundancy":
(1) A person's dismissal was a case of genuine redundancy if:
(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(b) the enterprise of an associated entity of the employer".
[12] In view of s.389 of the Act, and for the Commission to be satisfied that a dismissal was a case of genuine redundancy, there are three questions that need to be answered:
(a) Was the Applicant's job no longer required to be performed by anyone because of changes in the operational requirements of the Respondent's enterprise?
(b) Did the Respondent comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy?
(c) Would it have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent's enterprise, or an associated entity of the Respondent?
Was the Applicant's job no longer required to be performed by anyone because of changes in the operational requirements of the Respondent's enterprise?
[13] Sub-section 389(1)(a) of the Act provides that a person's dismissal was a case of genuine redundancy if the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise.
[14] These words have long been used and applied in industrial tribunals and courts as a practical definition of redundancy.[10] The Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy:
"1547 Paragraph 389(1)(a) provides that a person's dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer's enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.
1548 The following are possible examples of a change in the operational requirements of an enterprise:
· a machine is now available to do the job performed by the employee;
· the employer's business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or
· the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person's job no longer exists".
[15] Further, it has been held that a job involves "a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer's organisation, to a particular employee". It has also been held that:
"what is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant".[11]
[16] Put another way, the test is not whether the person's duties survive. The test is whether the job previously performed by an employee still exists.[12]
[17] The Applicant's preliminary submissions contain his summary of the factual background to this matter. In this submission, the Applicant refutes numerous factual matters raised in the witness statements filed by the Respondent. However, his submissions do not clearly outline his arguments on the matters I must consider under s.389, although I accept the following summation of his position (as articulated by the Respondent) regarding whether the Applicant's position was no longer required:
b. Metcash terminated his employment for performance related reasons rather than for reason of genuine redundancy of his position of Produce Strategy Analyst."[13]
[18] The Respondent's closing submissions regarding the basis upon which the Applicant's role was no longer required to be performed by anyone due to operational changes were as follows:
"5. Metcash distributes and markets groceries, fresh produce, alcoholic beverages, hardware, and other consumer goods to its own supermarkets, hardware stores and liquor stores and to independently owned businesses.
6. In May 2019, Mr Williams was appointed as the Head of Business Development - Merchandise. Metcash established a new business development function within its Merchandise business.
7. Mr Williams, along with other senior executives of Metcash, developed a produce strategy. The strategy focussed on:
8. It became clear to Mr Williams that he needed good trading data to make informed decisions about this strategy. As Mr Williams did not have anyone in his team at that time who could produce this data and with that skill set, Mr Williams and other senior executives, decided to engage a resource to assist Mr Williams with:
9. IBS software is a legacy accounting and trading system that has been used as a reporting system to allow oversight of the stock that Metcash was selling and the stock it had on hand.
10. Metcash decided to establish a new position of Produce Strategy Analyst, reporting to Mr Williams.
11. From 28 October 2019 to 8 December 2019, the Applicant was engaged as an agency casual undertaking the work of a Produce Strategy Analyst.
12. On 9 December 2019, the Applicant was employed by Metcash in the position of Produce Strategy Analyst.
13. The Applicant's position of Produce Strategy Analyst primarily focused on Metcash's national produce buying strategy.
14. This involved the Applicant collating data from five State operating sites, producing various reports, undertaking analytics and then supporting the produce team with the development / execution of the produce buying strategy.
15. From late March 2020 / early April 2020, in addition to these activities, the Applicant was asked to become involved in exploring the cross-dock business opportunity for the produce business.
16. The Applicant conceded during cross-examination that the consolidated buying strategy was the "primary focus" of his role until March 2020 or April 2020.
17. Metcash submits that this is consistent with the '2020 Performance Review for Pulkit Mada'' document. The document identifies a number of objectives that apply to all employees (namely, 'Produce Sales FY20', 'Income', 'Improve IGA retail like-for-like sales vs last year', 'Improved retail GP$ vs LY' and 'Improve supplier engagement'); a number of behavioural objectives (namely, 'Accountability', 'Continuous Improvement', 'Team Work' and 'Think Customer'); and two objectives that related only to the Applicant (namely, 'Consolidated Buying Report' and 'Guaranteed volume analysis by supplier & supplier analysis').
18. The Applicant conceded during cross-examination that the objectives in the '2020 Performance Review for Pulkit Madan' document were allocated such that the consolidated buying strategy was the primary focus of his role. The Applicant conceded that his performance was reviewed against the objectives in the document in around mid-2020. This confirms that the Applicant's primary focus was the consolidated buying strategy up until around late March 2020 / early April 2020.
19. Mr Williams gave evidence that prior to April 2020, the Applicant was spending 60% of his time on collating data, producing reports and producing analytics in connection with the national produce buying strategy.
20. Mr Williams also gave evidence that in about April 2020, the time spent on this task was reduced to 40% and that in about May 2020, the Applicant was encouraged to further reduce the time spent on these tasks to one day per week.
21. Reducing the Applicant's time on these tasks was driven by his increasing proficiency and allowed him to spend more time working on and supporting the 'forward-looking' produce strategy, including the cross-dock business opportunity.
22. The Applicant's 'Performance Improvement Plan' document supports the evidence of Mr Williams about the amount of time the Applicant was directed to spend on these tasks (namely, the reduction to one day per week and the transition to more cross-dock work).
23. The Applicant has claimed that his role was not limited to the consolidated buying strategy and that he spent much of his time on a range of other projects and other strategic aspects of the business.
24. Metcash submits that this claim should be rejected. The Applicant's position was not a position where he was engaged in a number of projects. A key aspect of the Applicant's position was to produce the reporting and analytics for Metcash's national produce buying strategy. This was not a project, but a key aspect of his position. While the Applicant worked on the cross-dock project until about late August 2020 and did a small amount of work on the AutoCT project, he did not play a role in any other projects other than preparing a one-off spreadsheet for the 'Direct:Direct' project and fixing a formula in a spreadsheet for the 'More for More Agreement' project.
25. During cross-examination, the Applicant conceded that he had little involvement in the 'Direct Sourcing' project, and that his involvement finished in around April or May 2020. The Applicant also conceded during cross-examination that his work on the 'Romeo' and 'SA Shed' projects was not substantial, and that his work on the 'SA Shed' project ceased in July 2020.
26. In late August 2020, a decision was made by Metcash not to continue with the national produce buying strategy and return to decentralised State-based produce buying.
27. At the same time, a decision was also made by Metcash not to progress the cross-dock business opportunity for Metcash's produce business given the decision to return to decentralised State-based produce buying.
28. These decisions, together with the introduction of new software, Power BI, which reduced time required to collate data and prepare reports, had a significant impact on the Applicant's position of Produce Strategy Analyst.
29. Mr Williams gave evidence that the decisions not to continue with the national produce buying strategy and return to decentralised State-based produce buying and not to progress the cross-dock business opportunity, ultimately resulted in Metcash making the decision in September 2020 to make the Applicant's position redundant.
30. Mr Williams also gave evidence that following these decisions, together with the introduction of Power BI, there were no substantive tasks remaining for the Applicant to perform other than winding down the national produce buying strategy. Any incidental reporting tasks that remained, which would have only comprised a couple of hours of work a week, were reassigned to existing members of the produce team.
31. The Applicant has also claimed that the implementation of Power BI could have resulted in other analytical roles within Metcash being made redundant as well as his position but that no other employees were impacted and questioned why Metcash did not make a formal announcement about the redundancy of his position.
32. Metcash submits that these matters are not relevant to the Commission's assessment as to whether the Applicant's job was no longer required to be performed by anyone. The evidence establishes that the implementation of Power BI allowed Metcash to automate the work the Applicant performed collating trading data and producing reports and so eliminated this element of his position.
33. Metcash submits that the Commission should be satisfied that, in the circumstances, the Applicant's job was no longer required to be performed by anyone because of operational requirements of the business and so the first element of the genuine redundancy test is satisfied."[14]
[19] The Applicant's closing submissions in-reply regarding whether the Applicant's position was no longer required were relevantly as follows:
"Metcash point 15 - I object to this statement because my role was to look at Cross Dock opportunities across the organisation and not just Produce. I was dealing with a number of suppliers ranging from meat suppliers to produce to general merchandise etc. My boss, Simon Williams mentioned in this cross examination that my meeting with Jared on 27th August was cancelled because I had a 1:1 with him where he informed him that my PIP concluded. Though this statement is not true but [sic] Jared and David Cox are Trading managers for the meat business. If I was working only on produce strategy, then why did I have a meeting with Meat suppliers in the first place?
Metcash Point 16 - 18 - Per my statement and my Year-end review as highlighted by respondents' lawyers, my focus on consolidated buying was approximately 35%.
Metcash Point 19 & 20 - Mr. Williams did not give any evidence except for saying that I spent 60% of my time in collating data, producing reports and analytics. I object to this statement.
Metcash Point 24 - I Object to this statement. I was working more than 8 hours a day every single day and that was truly not preparing one spreadsheet. I am an expert in analysis and preparing financial models from scratch (per Mr. Williams comments on my year end review), therefore, doing one spreadsheet should not take me a long time. It's a baseless comment and should be rejected.
Metcash Point 25 - All the projects I was working on, my contribution may or may not be substantial, but that doesn't prove I was not involved and I didn't spend the time of the day working on those projects.
Metcash Point 28 - I object to the statement because Power BI or any other program CANNOT replace my role. If that was the case then Strategy companies like McKinsey, Bain and Booz would adopt Power BI and make their entire staff redundant. This is again a baseless claim also because the results Power BI produces were not even seen by the time I left.
Metcash Points 30 - 33 - I object to all these statements since these form the basis of this case and if my position was genuinely made redundant, I wouldn't have filed a case with FWC in the first place. The transcripts do not prove anything since that's nothing but just another statement from the respondent which has no basis."[15]
[20] Having regard to the evidence and submissions before me, I make the follow findings:
(a) The introduction of the Microsoft Power BI business analytics software throughout the Respondent's business removed the need for manual intervention to collate disparate data, thus removing core aspects of the Applicant's duties with the Respondent.
(b) The Respondent's cessation of national collective buying, to State based produce buying, decentralised requisite analytics to the Respondent's State teams. This also removed core aspects of the Applicant's duties with the Respondent.
(c) Both (a) and (b) above were genuine operational changes to the Respondent's enterprise.
(d) Both (a) and (b) above impacted directly upon the Applicant's duties and role with the Respondent as a Produce Strategy Analyst. Whilst there was some dispute between the parties as to the scope and degree of such impact upon the Applicant's overall role, in my view, the evidence establishes that the impact was substantial, such that the Respondent made a bona fide determination that the Applicant's role was no longer required to be performed by anyone due to operational changes to the Respondent's enterprise. To that end, I find that the Applicant's role was no longer required to be performed by anyone in the Respondent's enterprise at the time of the Applicant's dismissal.[16] I note that as at the date of the hearing, the Applicant's former role at the Respondent has not been replaced.
[21] Having regard to the foregoing, I find that the Respondent has satisfied s.389(1)(a) of the Act.
[22] I note that the Applicant makes the assertion that his dismissal was not for genuine operational reasons, but for reasons associated with him having been placed upon a PIP in July 2020.[17] I do not accept that the evidence moves anywhere towards the establishment of this assertion. Mr Williams' evidence is that the PIP in respect of the Applicant ceased on 27 August 2020. The Applicant extensively cross-examined Mr Williams about the PIP, however, much of that cross-examination concerned the PIP process, including the PIP closure process. The assertion that the Applicant's dismissal occurred because he had been subjected to a PIP was rejected by Mr Williams. The Applicant did not squarely challenge this evidence when cross-examining Mr Williams. All in all, I simply do not accept that the size and nature of the operational changes made by the Respondent were done so as to dismiss the Applicant for reasons other than redundancy. Nor do I accept, having regard to the evidence, that the making of the Applicant's position with the Respondent redundant due to operational reasons was done to cover any other reason for the Applicant's dismissal (e.g. because the Applicant had been subject to a PIP).[18]
Did the Respondent comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy?
[23] The Respondent's closing submissions regarding their consultation obligations are as follows:
"34. Metcash submits that there is no dispute between the parties as to whether Metcash has complied with any obligation in a modern award or enterprise agreement to consult about the redundancy.
35. For completeness, Metcash submits that the Applicant's employment was not covered by a modern award or enterprise agreement. In these circumstances, there is no need for the Commission to consider whether Metcash met its consultation obligations to the Applicant in connection with the redundancy of his position.
36. Despite this, Metcash followed a typical consultation process in the case of the decision to make the Applicant's position redundant. This process would have satisfied the model consultation obligations in modern awards.
37. Metcash therefore submits that the second element of the genuine redundancy test is either not applicable, or if it is applicable, is satisfied."
[24] The Applicant's closing submissions in-reply on this issue are as follows:
"Metcash Point 34 - 37 - Whilst Mr Williams claimed that the PIP I was instated on was not a formal process and a formal PIP is another long process where there is HR involvement, what makes me prove that the consultation was formal or informal since there was no HR involved."[19]
[25] I note that in their substantive submissions filed with the Commission on 4 January 2021, the Respondent drew the Commission's attention to the decisions of Corcoran v the Trustee for the Express Parts Trust [2017] FWC 2357 and Hallam v Sodexo Remote Sites Australia Pty Ltd [2018] FWCFB 1496, which "held that there is no obligation for an employer to consult with an employee who is not covered by a modern award or enterprise agreement in order for a redundancy to be a genuine redundancy".[20]
[26] I accept that there is no evidence before the Commission as to the application or coverage of a modern award of enterprise agreement. That being the case, and in consideration of the case law (cited herein) on the issue, I find that s.389(1)(b) of the Act is of no application to this case.
Would it have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent's enterprise, or an associated entity of the Respondent?
[27] Sub-section 389(2) of the Act provides that a person's dismissal cannot be a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise, or an associated entity of the employer.
[28] In my view, the correct interpretation of subsection 389(2) remains as stated in Ulan Coal Mines Limited v A. Honeysett & Ors (Ulan Coal):[21]
"[26] [Subsection 389(2)] must be seen in its full context. It only applies when there has been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer's capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.
[28] ... [T]he question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer's enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee's skills, qualifications and experience, the location of the job in relation to the employee's residence and the remuneration which is offered".
[29] Again, although the Applicant's submissions do not clearly outline his arguments on this point,[22] I accept the following summation of his position (as articulated by the Respondent):
"6. Mr Madan concedes that it would not have been acceptable to him to be redeployed into a position which was more junior than his current position and that he did not want to go backwards in his career.
7. Mr Madan claims that he was a good fit for 3 positions.
8. In relation to the position of National Supply Chain Business Analyst, Mr Madan
(a) Ali Nabi did not interview or discuss the position with him at all until 15 October 2020, which was not an interview; and
(b) if Mr Nabi had interviewed him, Mr Nabi would have seen that he had far more skills than the successful candidate.
9. In relation to the position of Commercial Trading Manager, Mr Madan claims that he could have performed this position because he was already working with a commercial trading manager, Peter Blackwell, and that even though Ricardo Castillo advised him that he did not have the skills and experience for the position, he applied for the position anyway, knowing the answer beforehand. Mr Madan also claims that Mr Castillo was engaging in a tick a box exercise.
10. In relation to the position of Partnership Development Manager, which was presumably the other position that Mr Madan claims that he was a good fit for, Mr Madan does not advance any evidence to explain why this is the case nor does he contradict the evidence of Fiona Harding in relation to this matter."[23]
[30] The Respondent's closing submissions regarding whether it would it have been reasonable in all the circumstances for the Applicant to have been redeployed were as follows:
"38. Metcash is the primary employer of employees within Metcash's business operations in Australia.
39. Metcash's business operations include a small number of hardware businesses, which are operated by other entities, which are associated entities of Metcash for the purposes of the Act.
40. Metcash submits that whether it would have been reasonable, in all the circumstances, for the Applicant to be redeployed within Metcash's associated entities is not in dispute between the parties.
41. For completeness, having regard to the Applicant's evidence that he did not want to take a step back in his career in evaluating his redeployment opportunities, Metcash submits that
42. Metcash submits that whether it would have been reasonable, in all the circumstances, for the Applicant to be redeployed within Metcash is in dispute between the parties.
43. The Explanatory Memorandum to the Act states that it may not be reasonable to redeploy an employee, for instance, in circumstances where there is no position for which the employee has suitable qualifications or experience.
44. In the seminal case dealing with redeployment, Ulan Coal, the Full Bench of Fair Work Australia (as it then was) considered the circumstances in which it may be reasonable to redeploy an employee into another position. The Full Bench made it clear that when considering redeployment, the job must be suitable and the employee should have the skill and competence required to perform the position to the required standard either immediately or with a reasonable period of retraining.
45. At Metcash, where an employee's position is made redundant, employees are invited to express interest in any suitable vacant positions, as part of the redeployment process. In addition, the employee's manager will also take steps to give the employee a list of vacancies and source job descriptions for roles they may be interested in, as Mr Williams did.
46. Employees are also encouraged to look at the Success Factors portal to ascertain whether there are any current or new roles that they may be interested in. These roles may be in an active recruitment stage.
47. The Applicant considered the vacant positions within Metcash and identified only three positions to which he was interested in being redeployed into. These positions were - Partnership Development Manager, Commercial Trading Manager and National Supply Chain Business Analyst.
48. Metcash submits that the Applicant did not meet the minimum requirements for these positions, and would not have, even if a reasonable period of retraining was provided to him by Metcash. Furthermore, in the case of the positions of Commercial Trading Manager and National Supply Chain Business Analyst, recruitment for the positions was well-advanced, but despite this, Metcash considered the Applicant for the positions.
49. In the case of the position of Partnership Development Manager, it was a requirement of the position that the candidate have a sales and account management background. The Applicant did not have such a background and so Metcash determined that he was not suitable for this position.
50. The Applicant gave evidence that he acknowledged he did not have the required experience for the position. Metcash therefore submits that there is no dispute between the parties as to whether it would have been reasonable, in all the circumstances, for the Applicant to be redeployed to the position of Partnership Development Manager.
51. The Commission should therefore determine that it was not reasonable to redeploy the Applicant to this position.
52. In the case of the position of Commercial Trading Manager, it was a requirement that the candidate had significant experience (namely, more than five years and ideally more than 10 years) working at a manager / partner level supporting a buying or sales team in the FMCG industry or in a retailer.
53. The position was two grades above the grade of the Applicant's position in Metcash's internal grading system within the same job family and attracted a significantly higher remuneration budget than that of the Applicant's remuneration.
54. The Applicant had not progressed yet in his career beyond "analyst" level to "manager / partner" level and did not have the required experience in the FMCG industry or working for a retailer.
55. Both Mr Castillo and Ms Harding considered that the Applicant would not have been suitable for the position of Commercial Trading Manager with a reasonable period of retraining. Mr Castillo considered it would have taken up to two years for the Applicant to be trained for the position and was not certain that the Applicant could develop the influencing skills required. Ms Harding considered it would have taken one year or more for the Applicant to be trained for the position and that there was no guarantee he would be successful as he did not have sales experience. Metcash therefore determined that the Applicant was not suitable for this position.
56. The Applicant has claimed that Mr Castillo was engaging in a tick a box exercise when he spoke to the Applicant about the Commercial Trading Manager position because he had already stopped taking applications for the position on around 14 September 2020, and asked the Applicant to apply for the position despite having formed the view that he was not fit for the position.
57. Metcash submits that this claim should be rejected. While Mr Castillo was advanced in finalising the shortlist for the position and interviewing potential candidates on around 14 September 2020, he had not stopped taking applications at that time. When Mr Castillo spoke to the Applicant about the Commercial Trading Manager position, he formed the view that the Applicant did not have the skills and experience for the position and told the Applicant that he did not have the skills and experience for the position. Despite this, Mr Castillo told the Applicant that if he wanted to submit his application for the position, there was nothing stopping him from doing so. Mr Castillo gave evidence that he took the Applicant's expression of interest in the position seriously and would have progressed the Applicant to the interview stage if he had the skills and experience for the position. Metcash submits that the evidence establishes that Mr Castillo was not engaging in a tick a box exercise with respect to the Commercial Trading Manager position, and that he genuinely considered the Applicant for the position.
58. The Applicant has also claimed that he had a conversation with Mr Castillo where he offered to do the Commercial Trading Manager job while serving his notice period.
59. Metcash submits that this matter is not relevant to the Commission's assessment as to whether it would have been reasonable, in all the circumstances, for the Applicant to be redeployed to the Commercial Trading Manager position. For completeness, Mr Castillo gave evidence that he did not recall this conversation with the Applicant. Metcash submits that there was still a requirement for the Applicant to work through his notice period while the national produce buying strategy was being phased out, which occurred during his notice period.
60. The Applicant has also claimed that there is a contradiction in Mr Castillo's evidence, with specific reference to Mr Castillo's evidence that whether being in final rounds of interviews means a manager has stopped taking further applications depends on the specific case and that he was still open to looking for the right candidate in the context of the Commercial Trading Manager position.
61. Metcash submits that there is no contradiction in the evidence to which the Applicant has referred. The evidence establishes that while Mr Castillo was advanced in finalising the shortlist for the Commercial Trading Manager position and interviewing potential candidates when the Applicant expressed interest in the position, he had not stopped taking applications at that time and genuinely considered the Applicant for the position.
62. The Applicant conceded during cross-examination that the position of Commercial Trading Manager would involve a promotion and a 'step up' for him. The Applicant also accepted Mr Castillo's view that he was not suitable for the position. Metcash therefore submits that there is in fact no dispute between the parties as to whether it would have been reasonable to redeploy the Applicant to the position of Commercial Trading Manager.
63. The Commission should therefore determine that it was not reasonable to redeploy the Applicant to this position.
64. In the case of the position of National Supply Chain Business Analyst, it was a requirement that the candidate had experience working with supply chains and a working knowledge of supply chain, or more specifically working with distribution centres. The Applicant had not worked with distribution centres. His exposure to supply chains was with a pharmaceutical company, however, this was very limited and not distribution centre facing. When the Applicant was given an opportunity to update his CV to address concerns about him not having the required skills and experience in dealing with distribution centres, the Applicant did not do so. Mr Nabi considered that the Applicant would not have been suitable for the position of National Supply Chain Business Analyst with a reasonable period of retraining. Mr Nabi considered it would have taken three to five years for the Applicant to be trained for the position. Metcash determined that the Applicant was not suitable for this position.
65. The Applicant has claimed that Mr Nabi's evidence is not clear as to whether he interviewed the Applicant for the position of National Supply Chain Business Analyst, or merely had discussions with the Applicant about the position.
66. Metcash submits that this claim should be rejected. Mr Nabi gave evidence that his discussion with the Applicant on 15 October 2020 constituted an interview for the position. Mr Nabi also gave evidence that the Applicant did not, however, progress to formal interviews because he did not provide an updated CV. Despite not providing an updated CV, Mr Nabi considered that the Applicant did not have the required skills and experience for the position.
67. The Applicant has also claimed that Mr Nabi did not interview him for the National Supply Chain Business Analyst position or give him detailed feedback on his CV and how he was not fit for the position during their discussion on 15 October 2020.
68. Metcash submits that this claim should be rejected. Mr Nabi gave evidence that his discussion with the Applicant on 15 October 2020 was an interview for the position. Mr Nabi gave evidence that he had already discussed the Applicant's experience and provided him with feedback about the key requirements of the position that he did not meet in a discussion between around 28 September 2020 and 2 October 2020. Mr Nabi also gave evidence that it was difficult to formally interview the Applicant because his CV was tailored to financial analyst experience rather than operational analyst and supply chain experience, and Mr Nabi invited the Applicant to update his CV but the Applicant never did this.
69. The Applicant has also claimed that Mr Nabi ignored the Applicant's requests from mid- September 2020 to discuss the National Supply Chain Business Analyst position, and treated the process as a formality to give the impression he was serious about hiring the Applicant.
70. Metcash submits that this claim should also be rejected. On 17 September 2020, Mr Nabi received an email from the Applicant in which he expressed interest in a 'Business Analyst' position, and later that day Mr Nabi sent an email to the Applicant asking him to confirm which position he was referring to as there were two vacant business analyst positions (including the National Supply Chain Business Analyst position). It was not until 22 September 2020 that the Applicant confirmed his interest in the National Supply Chain Business Analyst position, at which time Mr Nabi told the Applicant that he was happy to speak with him to discuss his skills and experience and whether he could perform the position. Mr Nabi initially had a discussion with the Applicant between around 28 September 2020 and 2 October 2020, and subsequent discussions occurred on 13 October 2020 and 15 October 2020. Metcash submits that the evidence establishes that Mr Nabi was not treating the process as a mere formality to give the impression he was serious about hiring the Applicant for the National Supply Chain Business Analyst position but genuinely considered the Applicant for the position.
71. The Applicant has also claimed that he had a conversation with Mr Nabi where he offered to do the National Supply Chain Business Analyst job while serving his notice period, and that Mr Nabi rejected this offer.
72. Metcash submits that this matter is not relevant to the Commission's assessment as to whether it would have been reasonable, in all the circumstances, for the Applicant to be redeployed to the National Supply Chain Business Analyst position. For completeness, Mr Nabi gave evidence that he did recall this conversation with the Applicant, and that he told the Applicant that he needed to serve his notice period with his line manager. Metcash submits that there was still a requirement for the Applicant to work through his notice period while the national produce buying strategy was being phased out, which occurred during his notice period.
73. Metcash also submits that the Applicant's conduct during the cross-examination of Mr Nabi demonstrated that he did not have any respect whatsoever for Mr Nabi; the Applicant stated that he not only could do the job of National Supply Chain Business Analyst, but that he could also do Mr Nabi's job. Metcash submits that this is telling and allows the Commission to draw the conclusion that the Applicant was not an objective witness, and that his evidence that he could do the job of National Supply Chain Business Analyst should be rejected.
74. The Commission should therefore determine that it was not reasonable to redeploy the Applicant to this position.
75. In conclusion, Metcash submits that the Commission should determine that it would not have been reasonable, in all the circumstances, for the Applicant to be redeployed within the business of Metcash, or the businesses of its associated entities and therefore the third element of the genuine redundancy test is satisfied."[24]
[31] The Applicant's closing submissions in-reply regarding whether it would it have been reasonable in all the circumstances for the Applicant to have been redeployed were as follows:
"Metcash Point 38 - 48 - Whilst Metcash didn't find it necessary to interview me for the opportunities I applied for, a reference made to other positions advertised is irrelevant.
Metcash Points 49 - 75 - I have already raised my objections and concerns to all the positions I applied but was not considered for. I object to all arguments on those points especially the National Supply Chain Business Analyst position which was a perfect fit for someone with less than 5 years' experience than me, therefore, was a good fit for me, however, a compromise. I should have given an opportunity to formally interview with HR involved."[25]
[32] Having regard to the evidence and submissions of the parties, and the principles set out in Ulan Coal, I find that it was not reasonable in all of the circumstances for the Applicant to have been redeployed within the Respondent's enterprise, or an associated entity of the Respondent.[26]
[33] In making the foregoing finding, I particularly rely upon the uncontested evidence of Ms Harding that the Applicant did not possess the required level of skills or experience for the position of Commercial Trading Manager, or the position of Partnership Development Manager.[27]
[34] In relation to the position of National Supply Chain Business Analyst, I concur with the Respondent's submissions, by reference to the evidence, that it was not reasonable to redeploy the Applicant into this position (again, on the basis that the Applicant did not possess the required level of skills or experience for the position).[28]
[35] For completeness, I also find that there is nothing on the evidence that supports a proposition that it would have been reasonable for the Applicant to have been retrained in any of these three positions (having regard to the likely timeframe that any such training would require).
[36] On the issue of redeployment into an associated entity of the Respondent, the evidence of Ms Kalogeropoulos is uncontested that no relevant redeployment options existed at the time of the Applicant's dismissal.[29]
[37] As set out in these reasons for decision, I have found that the dismissal of the Applicant was for reasons of "genuine redundancy" within the meaning of s.389 of the Act. Accordingly, the Applicant's dismissal is not one to which the Commission has the power to interfere with under the Act. His Application is therefore dismissed. An Order to that effect will follow the publication of this decision.
[1] Respondent's Submissions filed 4 January 2021, at [10]; Applicant's Submissions filed 19 January 2021, at [3]-[4].
[2] Respondent's Submissions filed 4 January 2021, at [10]; Applicant's Submissions filed 19 January 2021, at [9].
[3] Respondent's Submissions filed 4 January 2021, at [16]-[22].
[4] Ibid, at [24]; Applicant's Submissions filed 19 January 2021, at [21].
[5] Respondent's Submissions filed 4 January 2021, at [25]; Applicant's Submissions filed 19 January 2021, at [22].
[6] Respondent's Submissions filed 4 January 2021, at [26]; Applicant's Submissions filed 19 January 2021, at [23].
[7] Respondent's Submissions filed 4 January 2021, at [27]-[28].
[8] Form F3 filed by the Respondent dated 11 November 2020.
[9] Applicant's Submissions filed 19 January 2021, at [24]-[25].
[10] Ulan Coal Mines Limited v Henry Jon Howarth & Ors [2010] FWAFB 3488 at [15] (Boulton J, Drake SDP, and McKenna C), citing R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Cooperative Limited (1977) 16 SASR 6; Termination, Change and Redundancy Cases [1984] CthArbRp 284; (1984) 8 IR 34 and (1984) 9 IR 115; Short v F.W. Hercus Pty Limited (1993) 40 FCR 511.
[11] Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308 (Ryan J), cited with approval in Ulan Coal Mines Limited v Henry Jon Howarth & Ors [2010] FWAFB 3488 at [17] (Boulton J, Drake SDP, and McKenna C). See also: Dibb v Commissioner of Taxation (2004) 136 FCR 388; [2004] FCAFC 126 at [43]- [44] (Spender, Dowsett, and Allsop JJ).
[12] Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 (Hamberger SDP), at [27].
[13] Respondent's Submissions In-Reply filed 1 February 2021, p.1.
[14] Respondent's Closing Submissions filed 22 March 2021, 1-6.
[15] Applicant's Closing Submissions In-Reply filed 31 March 2021, 1.
[16] See Exhibit R8, Williams Statement, at [15]-[20], [22].
[18] Transcript, 4 February 2021, Cross-examination of Mr Bani at PN421-PN422, PN425, PN428-PN434, PN438-PN441. Exhibit R8, Williams Statement, at [28].
[20] Respondent's Submissions filed 4 January 2021, 13 [69].
[22] The Applicant's submissions (Exhibit A1), at [23], are that he "found [himself] a good fit" to be redeployed into three available roles at the Respondent. See also Applicant's closing submissions in-reply, received 31 March 2021, under the title "Metcash Points 49-75".
[23] Respondent's Submissions In-Reply filed 1 February 2021, 2.
[24] Respondent's Closing Submissions filed 22 March 2021, 6-14.
[25] Applicant's Closing Submissions In-Reply filed 31 March 2021, 2.
[26] I note that the role of "Position Analyst" is not one that the parties suggested was reasonable for redeployment, which is directly supported by the evidence of Ms Wallis (Exhibit R6).
[27] Exhibit R4, Harding Statement, at [11], [22], and [26]-[29], and Annexures FH-1 to FH-5. See also Exhibit R5, Castillo Statement, at [6]-[18]. The Applicant chose not to cross-examine Ms Harding.
[28] Note Transcript, 4 February 2021, Cross-examination of Mr Bani at PN286-PN287, PN295-PN297, PN299-PN301, PN306-PN308, PN333-PN337; Re-examination of Mr Nabi at PN382, PN386-PN391. See also Exhibit R7.
Printed by authority of the Commonwealth Government Printer
Pulkit Madan
Metcash Trading Limited T/A Metcash [2021] FWC 3033
(1977) 16 SASR 6
(1984) 8 IR 34
(1984) 9 IR 115
(1993) 40 FCR 511
(1995) 60 IR 304
(2004) 136 FCR 388