[2] The applicant gave oral evidence in support of her written statement [1]. She presented as a very self-assured young woman who claimed to have quite a specific recollection of things that both she and other people had said over quite a long period of time[2]. She admitted that she could be seen as a "dominant" sort of person. I formed the impression that she had a tendency to exaggerate in order to support her case[3]. Where her evidence conflicts with that of the respondent's witnesses I have preferred the latter.

[3] The applicant's husband, Alan James Kerrison, also gave evidence. He was employed by the respondent as a distribution planner at all relevant times. He has since left employment with the respondent. In his statement he said the reason he left was because he "was so disappointed by (the respondent's) conduct …" [4] in respect of his wife's termination, but in his oral evidence[5] he said there were a number of reasons for leaving, the main one being that he felt he was "going backwards and …had no future" with the respondent under the new management of Petra McLoughlin.

[4] In cross-examination, Alan Kerrison said that it was an altercation that he had with McLoughlin around the time of his wife's dismissal that prompted him to seek employment elsewhere. Following the altercation, he lodged an harassment complaint against McLoughlin. This was investigated by the respondent's Human Resources Manager at the time, but found to lack substance.

[5] I found much of Alan Kerrison's statement to lack objectivity, with the result that I have felt the need to treat his evidence with a good deal of caution. Where it conflicts with the evidence of the respondent's witnesses, I have preferred the latter.

[6] For the applicant, evidence was also called from:

• Vicki Michelle Revell, who worked for over 4 years with the respondent, the last 3 being in the role of materials planner. She has subsequently left employment with the respondent, but she was employed during the organisational restructuring that gave rise to the applicant's termination.

• Ian Neil Christmas, who has been employed with the respondent for about 14 years. He was the applicant's supervisor at the time of her dismissal. He described his current position as a "group leader looking after logistics, receiving dispatch …" [6].

[7] Both these witnesses presented in a straightforward manner and I have no reason to doubt their testimony.

• Petra McLoughlin, Material Procurement and Logistics (MP&L) Manager.

• Leanne Brus-Bentley, a human resources consultant engaged by the respondent to assist in the restructuring process that gave rise to the applicant's termination.

• Jeff Breeding, who at the relevant time was a Production Manager employed by the respondent. (He subsequently left that employment in November 2005.)

• Neil McKay, who is presently part of the relocation team with the respondent but at the relevant time was "Plant One Manager" for a period of four and half years.

• Jennifer Gloria Lee, Human Resources Manager with the respondent at the Golden Grove site where there have been in excess of some 400 employees throughout the relevant times.

[9] I found all these witnesses to present in a straightforward and credible manner. It was apparent to me that none of them had any 'axe to grind' in relation to the applicant. Where there is conflict, I have preferred their evidence to that of both the applicant and her husband, Alan Kerrison.

[11] The applicant began working for the respondent in 2000 as a weekly hired operator. Sometime in 2002 she was transferred into the 'hose and pipe' section of the organisation, working initially as an operator on the shop floor before temporarily undertaking some higher duties. She later transferred to the 'seat tracks' section in an operator's role, before being appointed a "stock controller" in October 2003.

The applicant's appointment as a stock controller

[12] On 3 October 2003 the applicant signed a formal "Employment Contract" [7] relating to the position of "Stock Controller" in the Materials Planning and Logistics ("MP&L") team, reporting to Ian Christmas as her supervisor and Guy Loyson as manager.

[13] Essentially, the MP&L team provided a support role to both the production and planning areas of the organisation. The applicant's role as stock controller within the MP&L team was basically to monitor stock fluctuations to ensure that production did not run out of the parts that it required and that the respondent's planners could present accurate schedules to their suppliers. The applicant regarded the position as a "stepping stone" to a planner's position.

[14] The applicant and the respondent produced slightly different versions of something purporting to be a job description of the position. The differences in themselves are not particularly significant, but for present purposes I accept the respondent's job specification [8] as the accurate one.

[15] I also note in passing that the applicant never received any formal warnings about either her performance or conduct during the course of her employment.

[16] With reference to various terms used in the relevant coverage provisions of the Metal, Engineering and Associated Industries Award 1998, the applicant agreed that "production planning" was not part of her role as stock controller. Neither was she required to do any "design and draughting" work, or undertake any "quality control" or "inspection" responsibilities. She was not required, neither did she actually perform any "design and/or development work" or any "laboratory" work. She did not have a role in "supplier evaluation" [9].

[17] During the course of her oral evidence it was established that the only "scheduling" work she performed was when she assisted another employee by the name of Gary Thomas for a period of about 2 weeks in early 2004 when he was filling in for one of the planners (Vicki Revell) who was taking leave at the time.

[18] The applicant's job did not involve "estimating" (in the ordinary sense of determining what a particular job might cost) although she was required to estimate the quantity of materials that would be needed on site and as she said [10] "that also linked to the costing".

[19] During the course of her employment the applicant married Alan Kerrison, who worked for the respondent as a distribution planner in the same MP&L Department.

[20] In his evidence, Alan Kerrison said that in his view, the applicant had performed "production planning" in the sense that she had established and operated a so-called "faxban system", the purpose of which was to direct product from suppliers into the respondent's plant to replenish stocks as and when required. Ian Christmas said that the applicant set up the 'faxban' system with the assistance of another employee, Andy Pratt. When asked whether the applicant, in her stock control role, was involved in any "production planning", Christmas said that the only time she would have been involved in anything like that would have been "if Vicki Revell or someone was away at the time". It was not however part of her normal stock control role, which he described as follows [11]:

"Her position as stock controller was to count, come back to myself with the quantities but also to find out why, what for, when and how we could … what we could do to fix it."

[21] Towards the end of 2004 the applicant applied for maternity leave. On 24 November 2004 the respondent confirmed in writing [12] the basis of a tentative arrangement for her to return from parental leave on 23 May 2005 on a part-time basis and then resume full-time work from 12 August 2005. Among other things, the letter of 24 November 2004 from Belinda Grant, Manager, Human Resources (Operations Group) stated that while she could not at that stage see any difficulty with these arrangements "… however, we ask that you contact us six weeks prior to your return from maternity leave to verify that we can still accommodate the … part time arrangements …"

[22] An integral part of the arrangements contemplated at that time was the applicant's husband (Alan Kerrison) being allowed to work a split shift upon the applicant's eventual return to work so the two of them could share responsibility for caring for their young child at home.

[23] Alan Kerrison was sent a similar letter [13] on the same date (24 November 2004). It stated that while management did not anticipate any concerns regarding his request to work a 'split shift', any such arrangement would be on a "trial basis" and may need to be reviewed in the event that his position changed significantly in the intervening months.

[24] In early December 2004, the then MP&L Manager, Guy Loyson, was transferred to another management position and replaced in the MP&L role by a new manager, Petra McLoughlin.

[25] The applicant arranged a meeting with McLoughlin shortly after she commenced. The two quickly established a good rapport.

[26] The applicant then proceeded on leave and gave birth on 24 December 2004.

[27] It was not long after commencing work with the respondent in December 2004 that McLoughlin decided to review the structure of the MP&L Department.

Return to work discussions - The meeting of 19 April 2005

[28] The applicant subsequently contacted the respondent by telephone in early April and arranged to go in and discuss return to work arrangements at a meeting on 19 April with Petra McLoughlin and the then Human Resources Manager, Jennifer Lee.

[29] At this meeting the applicant advised that she wanted to return to work from her parental leave some 6 weeks later than originally planned and that she wanted to do so on a part-time basis. McLoughlin and Lee told her that they would have to speak with her husband to see if the Kerrisons' plans could still be accommodated (i.e. with Mr Kerrison planning to work 'split shifts') although the applicant was told that it looked doubtful that they could, because of changed circumstances with Mr Kerrison's job.

[30] McLoughlin briefly mentioned at this meeting that she was still working on the restructure of the MP&L Department that she had flagged earlier with the applicant. (I interpose here to say that Lee was not directly involved in anything to do with the restructure. She did not have any real knowledge of the MP&L Department and in fact regarded herself as "still learning the business" at this stage. Consequently, Leanne Brus-Bentley was engaged as a consultant to work with McLoughlin on the staffing aspects of the restructure.)

[31] I also find that in this meeting on 19 April, as indeed in all their meetings with the applicant and/or with her husband, McLoughlin and Lee were careful to discuss only the applicant's hours with the applicant and Alan Kerrison's hours with him.

[32] Two days after this meeting on 19 April, the applicant forwarded an e-mail [14] to McLoughlin confirming her request for a 6-week delay in returning to work and setting out two options for the respondent to consider, both of which were dependent on Alan Kerrison being allowed to work a split shift.

[33] Several days later, the applicant attended another meeting with McLoughlin and Lee, at which it became clear that it was now going to be inconvenient for the respondent to allow Mr Kerrison to work a split shift arrangement to accommodate the applicant's return to work. (I accept that the respondent had valid reasons for by now not wanting Mr Kerrison to work split shifts [15].)

[34] The applicant stated [16] that at this meeting McLoughlin told her it was her intention for the applicant to return in the position of stock controller for 3 months, after which she would become a planner. She said McLoughlin told her that she wanted her to work on a cycle counting system that McLoughlin had brought over from the UK and to train line feeders so they could take control of the stock and the stock counting. The applicant claimed to have a very specific recall of what McLoughlin said[17] and said that McLoughlin told her this after the applicant asked Lee to leave the room.

[35] Lee could not recall having been asked to leave the room, although she did not deny that it might have happened. In any event, Lee was quite definite in her evidence [18] that "(the applicant) was never promised a planner role at any stage by me or by (McLoughlin), when (McLoughlin) was with me". She continued:

"Of course, (the applicant) asked and rightly what am I going to be doing … (McLoughlin) talked to her about cycle counting. I do recall that … in the context of … (the applicant) asking what will I be doing and (McLoughlin) saying, well, I need to get the cycle counting right, you can help me with that. It was still very much about the role that she had … when she started maternity leave, which was the stock controller job." [19]

[36] McLoughlin's evidence on the matter was that while she spoke to the applicant about becoming familiar with a new system that she wanted to put in place in her stock controlling role, it was not for the purpose of training material handlers, but simply working with them [20]. She was adamant that she never at any stage, either at this meeting or in any other, offered the applicant a planning role or any other role. I prefer McLoughlin's evidence to that of the applicant and I accept her assurances on these matters.

[37] On 29 April 2005, McLoughlin advised the applicant by e-mail of a team meeting planned for 6 May 2005. As things transpired, the applicant was unable to attend the 6 May meeting, at which all staff were informed that they could meet with Leanne Brus-Bentley on a one-on-one basis if they wanted to discuss their ideas for the restructure. (Brus-Bentley did subsequently get to meet on a one-on-one basis with the applicant - and at the applicant's request - on or about 12 May. I shall return to that meeting shortly.)

[38] McLoughlin sent an e-mail to the applicant on 6 May [21] inquiring whether she could make another time for the applicant " … to come in so I can go through some thoughts of the MP&L team with you". McLoughlin concluded the e-mail by noting that there was also a need to "close off the return to work issue".

[39] There was then a further e-mail exchange on 6 May setting up a time for the applicant to be briefed on McLoughlin's proposals for the MP&L team and discussing the issues surrounding the applicant's proposed return to work arrangements. In the course of this later e-mail exchange, McLoughlin advised the applicant:

We are more than happy to accommodate a flexible hours approach to your return to work in July. We proposed that you would start at 6pm until 10pm. We are happy to look at any other alternative you propose of alternate hours, providing it is in isolation to your husband's contract of employment with (the respondent)…"

[40] On 12 May, Brus-Bentley met with the applicant at the applicant's home and at the applicant's request. At this meeting Brus-Bentley passed on to the applicant the same information the other departmental employees had received on 6 May about the respondent's perceived need for the restructure and advised her that the respondent intended to process information in the form of a skills matrix to determine who would fill the various positions created by the restructure. She also discussed the applicant's views about the matter. (It should be noted here that no particular structure had been agreed at this point, hence the actual positions to be included in the final structure had yet to be determined.)

[41] The applicant said that Brus-Bentley assured her at this meeting that she had spoken with McLoughlin about the applicant and that the two of them saw the applicant over on the planning side of the structure. The applicant said [22] that when she mentioned that there was at that time "an EBA person"[23] doing a temporary job as a planner, Brus-Bentley told her that "he was EBA and not staff"; that he was only doing the job temporarily and that he would be moved back in due course so there was no need for her to worry. The applicant also said that Brus-Bentley assured her that there would be enough positions for everybody[24]. She said she also told Brus-Bentley that Ian Christmas would be best suited to mark her skills assessment and that Brus-Bentley told her she would make a note of it[25].

[42] Brus-Bentley on the other hand stated that at no time did she offer the applicant a position of planner, apprentice planner or any other position, nor did she offer any other employee a position in the new structure, which had not yet been agreed in any event. She said she had no authority to offer the applicant any position; it was not part of her role to do so and she had not done so. In her evidence in chief [26], she described the meeting with the applicant on 12 May as more about imparting and gathering information than anything else. I accept her evidence in preference to the applicant's on these matters, and find accordingly.

[43] At or about this time the applicant was provided with information about the timeline for the various things that needed to happen to effect the restructuring [27].

[44] There were several purposes underlying McLoughlin's restructuring ideas. Broadly speaking she wanted to:

• Develop a more effective support function to the production department, "… regaining budgetary control and immediately reducing freight costs and implementing cost reductions by establishing controls to monitor inventory losses" [28].

• Divide the tasks in the group more clearly between two sections - (1) planning and (2) material handling - so that "… both could focus more specifically on the correct disciplines".

• Make the planning section more customer focused.

[45] The applicant agreed that the restructuring was a genuine restructuring exercise and that McLoughlin did not have any "axe to grind" in relation to her [29].

[46] Brus-Bentley stated that she advocated a "consultative and negotiated process" for implementing the restructure rather than alternatives such as:

• having candidates all apply for their own positions (which she said would have been unduly lengthy and resulted in an unhappy, disgruntled and low performance work group), or

• having management simply "make the job decisions" (which would have been open to the charge of favouritism and not allowed for 'due process'), or

• applying a 'last in/first out' approach (which would not have resulted in the best skilled people being placed in appropriate positions and was not company policy anyway).

[47] Brus-Bentley said the method selected to implement the restructure was chosen because it:

• brought a range of opinion to bear on the question of employee suitability;

• was achievable within reasonable timeframes, and

• was consultative and gave all employees an opportunity to be heard.

[48] On 17 May all relevant staff were given skills matrix self-assessment forms. McLoughlin designed the forms in conjunction with Brus-Bentley.

[49] Alan Kerrison brought a copy of the skills matrix home for the applicant on the day they were handed out. As the applicant stated, "the idea was that the employee and two supervisors would fill out the form to work out where the employee would be best placed" [30]. I accept that the employees were asked to fill out the forms on this understanding.

[50] The skills matrix identified a series of both technical and behavioural competencies. The respondent has a generic set of behavioural competencies that it uses for the purposes of employee assessment throughout the organisation. The technical competencies were derived from the existing job descriptions in the MP&L Department and McLoughlin's own knowledge of what was required.

[51] Each employee completed self-assessment forms. Where possible, the other assessment forms were filled out by the employee's direct manager and another senior manager (with the latter only being asked to fill out the behavioural competencies section).

[52] McLoughlin did not fill out the forms for the applicant, nor indeed for one of the other workers (Adrian Burnett) because neither had worked for her and hence she was not in a position to comment on them.

[53] For the applicant, management decided that the fairest alternative to having McLoughlin fill out an assessment was to choose a senior manager who had worked with her previously and who was in a position to make a judgment on her capabilities.

[54] Neil McKay had known the applicant for some 4 years as an "internal customer" and in his capacity as Plant 1 Manufacturing Manager had had regular dealings with her and others in the department about material supply matters.

[55] Jeff Breeding had managed the applicant in the past and had more recently been an "internal customer" of the applicant in his role as Plant 2 Manufacturing Manager.

[56] Each was asked independently to provide their own assessments of the applicant [31]. I find that in doing so, there is no reason to believe that either McKay or Breeding did anything other than express their honest opinions in respect of her.

[57] The applicant said that she had had very little contact with Breeding in the last 3 years or so and had never actually worked for McKay. Most of her contact with McKay had been in management meetings and he had often complimented her.

[58] McLoughlin and Brus-Bentley both stated that it was not feasible to ask the only other two possible markers for the applicant - Guy Loyson and Ian Christmas - to complete assessments on the applicant. Loyson was then overseas for what Lee described as a substantial period of time and constantly travelling, making him difficult to contact, and since Ian Christmas was himself also being assessed, it was considered inappropriate for him to act in the role of assessor for the applicant or anyone else.

[59] While the applicant was not prepared to acknowledge that it would have been inappropriate for Ian Christmas to assess her skills, I have concluded that realistically, management's decision not to involve him in marking the applicant's skills matrix, at least initially, was appropriate in all the circumstances. I also conclude that it was reasonable in all the circumstances to ask Breeding and McKay to assess the applicant.

[60] I note in passing that the evidence from Alan Kerrison [32] was that Guy Loyson is still employed by the respondent and works in Adelaide. Presumably he could have been called to give evidence, but neither party saw fit to do so. There is therefore no evidence before me as to what his assessment of the applicant would have been, had he been available at the time.

[61] The applicant returned her completed self-assessment [33] on 20 May. She marked herself very highly on everything in the skills matrix. McKay and Breeding however, gave her quite low scores.

[62] There were no guidelines as to how persons marking the skills matrix were to apply the marking system. It is quite possible, indeed likely, that different markers had different criteria in mind when they noted their scores. Breeding for example said that he regarded "1" as being less than acceptable, "2" as being acceptable and "3" as being outstanding, but with only 3 possible scores - "1", "2" or "3" - there was very little room for differentiation between for example, someone who was considered marginally acceptable and someone considered marginally unacceptable. Obviously had there been a wider range of scoring possibilities, there could have been greater differentiation in assessments.

[63] Breeding explained that the last time the applicant worked directly for him was "around about 2001" when she reported to him through a supervisor in the 'Hose and Pipe' production team. The applicant was later given an opportunity to work within that same team doing some production planning. He stated that since she was only at the trainee level at the time, it was difficult to determine her skills proficiency, but in his view her behavioural characteristics were "less suited to work in a team" [34]. He stated that after she moved into MP&L and ceased to report to him directly, he continued to have contact with her on a day-to-day basis through his role as Production Manager.

"… Essentially (the applicant) is not a team player. She is not a willing participant in a team and pulls in a different direction at times. She was ambitious to the extent that she did not consider the roles she held as being appropriate for her … she has an inflated view of her own ability and this causes problems with others. I had been privy to how she influences others around her and my opinion was that she was more damaging than supportive in creating the environment which was needed at the company. In reaching this conclusion I rely upon my general observations over a period of time including my time as her manager."

[65] McKay stated that he first had dealings with the applicant about 3 or 4 years ago during what he described as "the prototype build of the seat tracks" and has since had daily contact with her.

[66] McKay stated that he thought that prior to the recent restructuring, the MP&L Department "was in a terrible state". The work ethic was poor and production managers were suffering shortages on a daily basis. While it was McLoughlin who came up with the new structure, he said the production managers all agreed that a restructure was necessary because of the problems they had been experiencing.

[67] He stated that he believed he was qualified to mark the applicant's skills matrix because of his general understanding of the roles of the MP&L team and also from his interactions with the applicant whenever his production team needed something and she was involved. He readily conceded however that someone like Ian Christmas would have been in a better position to assess her skills had it been appropriate for him to do so.

[68] Amongst other things, McKay stated [36]:

"(The applicant) can be arrogant, aggressive and is a know-it-all. She is not a team player. The discrepancy between her self-assessment on the skills matrix and my score just reflects the high opinion she has of herself … her actual ability has never matched her opinion of herself or her opinion of where she should be in the company."

[69] He believed that the materials handler position that the applicant was offered when she was eventually made redundant was appropriate for her level and that she was not sufficiently qualified to be a planner. He went on to state that "with more skills and experience she could do the job of a trainee planner but there are others more qualified ahead of her in the queue" [37].

[70] McKay proffered the view that following the restructure, the MP&L team was now a better team as a result of its members being "more customer (i.e. production) focussed".

[71] In their oral evidence, both Breeding and McKay said it was no surprise to them that the applicant was selected for redundancy. Both said that in terms of behavioural competencies their view was that the applicant would have been the bottom ranked employee out of those considered in the skills matrix exercise.

[72] While the applicant vigorously contested the assessment of her by both Breeding and McKay, I find that there is nothing to suggest that either of them were dishonest in their subjective assessments of the applicant. They genuinely held the views that they expressed.

[73] I note however that the applicant was never at any stage asked to comment on the difference between her own self-assessment and those done by Breeding and McKay. The applicant was never advised of how McKay and Breeding scored her on the skills matrix.

[74] Further, I accept that when the skills matrix was given to the various employees, including the applicant, it was provided to them on the basis that the scores would determine where they would be placed in the new structure. It was never suggested that anyone would, or even might, be made redundant, which is what subsequently happened.

[75] After the assessments were completed, Brus-Bentley tallied the scores and presented McLoughlin with the results, broken down for each candidate into different sections:

[76] McLoughlin then made decisions about placements in the new structure she had by now settled on. Her decisions in this respect were based on the candidates' general competency and their competency when assessed against the planning roles, which required more technical skill. In cross-examination she said that while the basis for her decisions on the skills matrix data was essentially "mathematical", she applied her own weighting, giving more emphasis to possibly 10 or so of the 40 or so technical planning and behavioural competencies covered by the skills matrix.

[77] McLoughlin explained the way in which she interpreted and applied the results of the skills matrix exercise, as follows:

" … it was to give an understanding of where people felt they sat, where other people felt they sat. We obviously looked at the totals as general totals, but what's more important was obviously the specific MP&L competencies that we picked out and then, of course, looked at the totals to see where people sat. … In my decision-making, the technical planning, while important, was not for me the overriding factor because behaviourally was more important, about the culture, about ensuring that people wanted to learn, they were good with customers, they'd be a good all rounder and then you can teach people the technical skills … team work is a huge part of the MP&L job … I have to say I wasn't hugely surprised by where people were ranked, so that again gave me confidence that the process had been a good process. Once we knew that … we worked out by the process of elimination the last two people … " [38]

[78] Ian Christmas gave evidence about his view of the applicant in regard to the assessment forms. He said that had he filled out the forms he would have given the applicant "fairly high marks on her technical attitude" and "a bit higher" on general competencies and behaviours, although he said he always rated her "as a pretty high maintenance sort of a person" [39]. In cross-examination however, he readily agreed that given that he was also directly involved in the restructure, it would have been inappropriate for him to have been involved in the applicant's assessment at the time. He also agreed that in regard to the list of so-called "behavioural competencies" he would have placed the applicant last of all members of the MP&L team. He said he was not surprised that the applicant was one of the two people made redundant and agreed that the decision in this respect was within the range of reasonable outcomes that might have been expected.

[79] Christmas also recalled an occasion sometime in 2003 or 2004, well prior to McLoughlin starting with the respondent, when Guy Loyson had spoken to him about a possible restructure even at that time. Loyson had asked him to consider who might be removed from the team. He could remember nominating the applicant at that time.

[80] On 23 May 2005, the applicant was advised by McLoughlin of the "next MP&L meeting" to be held in the afternoon of 25 May, at which McLoughlin indicated she would be "… going through the finalised structure and next steps" [40].

[81] The following day, 24 May, Jennifer Lee forwarded an e-mail to the applicant purporting to set out the respondent's "final proposal" regarding the applicant's return to work from maternity leave. So far as is relevant, it reads:

We are pleased to be able to offer you return to work on a part-time basis from 4:15 pm to 8:15 pm. As we have stated previously, you may choose to work your part-time hours at any time of the day but what we cannot do is interrupt Alan's. However, we are able to move Alan's hours of work forward to take your family needs into account and have nominated your working hours to allow an adequate handover period for you both. On those days when Alan is home earlier, it may suit you to begin and end your shift earlier. You may also choose to work 3 hours or 3.5 hours per day in discussion with your Manager.

Tanya, Petra and I have given a great deal of consideration to your situation and have proposed a flexible arrangement which we hope will allow you a smooth transition back to work. Would you please confirm in writing your acceptance of the part-time hours above and the date of your return, or whether you wish to remain on maternity leave.

[82] On 25 May, the whole MP&L team, including the applicant, met together as planned. Both McLoughlin and Brus-Bentley addressed the staff. Lee was present as well. The employees were advised of the final structure [41] but no names were attached to the various positions identified in the structure at that stage.

[83] Lee said it was probably at this meeting (or very shortly thereafter) that she first became aware that there would probably be redundancies as a result of the restructuring, because there just weren't enough positions in the new structure to accommodate all of the existing staff [42]. She said the final outcome however depended on "who applied for what jobs and how that panned out"[43].

[84] Alan Kerrison said that he and the other employees in the MP&L Department also only first became concerned that there may be redundancies around this time when the new structure was announced and it could be seen that not all of the current employees were going to fit into the new system.

[85] In any event, it is clear that none of the employees, at least at the time they filled out the skills matrix, were specifically aware that there could be redundancies as a result of the restructuring. They may or may not have suspected something but it is clear that they were never advised or informed of the possibility.

[86] The positions of "planner", "trainee planner" and "goods in/administration" were all subsequently filled by various employees on a "skills matching" basis [44] having regard to the completed skills matrices. McLoughlin considered that the applicant's score on her skills matrix assessment was too low for her to be placed in one of those positions[45]. I accept that any simple independent analysis of the scores alone, would support her conclusion in this regard.

[87] Following the meeting of the whole Department on 25 May, the applicant and her husband were asked to stay behind and discuss the applicant's return to work arrangements. The applicant stated that she told McLoughlin at this meeting that since her role was no longer included in the organisation chart, the respondent needed to offer her a role similar in status and pay to the one she previously held. She stated [46] that both McLoughlin and Lee then told her that there was nothing to worry about; that "(she) would be on the planning side", but that the actual position could not yet be revealed because "the names weren't in the boxes yet".

[88] In his statement about this discussion on 25 May, Alan Kerrison said that the applicant asked where she would be placed in the restructuring and that Lee had told her that while "… she would not reveal who was getting what job … (the applicant) would be a staff member of MP&L". He went on to state that Lee actually placed her hand over the staff/planning side of the organisation chart and told the applicant something to the effect of "you will be in this area Tanya" and "you have nothing to worry about". He confirmed his recollection of this in cross-examination [47], as well as his recollection that Lee was present with both him and the applicant when these comments were made.

[89] When asked about this meeting [48], Lee said that she did make comments to the effect that the applicant should not worry about things; that she should allow the process to continue and "see what falls out of the restructure" but she categorically denied offering the applicant any position or implying that the applicant was going to be slotted into any particular role on either the planning side or anywhere else.

[90] McLoughlin denied [49] that she had ever offered anyone a role prior to the restructuring actually taking place. She specifically denied having ever said anything to the applicant to the effect that she would have a planner or trainee planner position and she said further that, to the best of her knowledge, no one else had done so. She also stated that "no other employee in the MP&L department was offered a job before final decisions were made"[50].

[91] I accept the evidence of Lee and McLoughlin on these matters in preference to that of the applicant and her husband.

[92] As far as her return to work was concerned, the applicant made it clear at this meeting on 25 May that the hours she would be prepared to work on her return would be 2:30 - 6:30 pm [51]. In response, it was again made clear to her that these hours were acceptable to the respondent, but only as long as the applicant understood that management could not accommodate any associated or consequential adjustments to her husband's hours of work.

[93] The applicant stated [52] that her husband then told McLoughlin and Lee that he may end up taking parental leave if McLoughlin would not allow him to split his shift. Alan Kerrison stated[53] that it was the applicant who had suggested that he might take paternity leave and that McLoughlin appeared to be aggravated by this suggestion. The meeting ended shortly afterwards.

[94] Alan Kerrison stated [54] that throughout the restructuring process, McLoughlin confirmed that there would be no redundancies. McLoughlin flatly denied that she had ever made any such statement or statements to any of the MP&L employees. While I prefer McLoughlin's evidence on the matter, I can however understand how some employees might have assumed that there were not going to be redundancies, simply because that possibility was never raised with them during any of the earlier talk about restructuring.

[95] Following all the events of 25 May, applications were then called for the positions of MP&L Coordinator, MP&L Group Leader and MP&L Group Team Leaders. The applicant did not apply for any of these positions, although it is clear that she had opportunity to do so.

[96] On Thursday 26 May, Lee e-mailed [55] the applicant advising as follows:

Our offer as set out in my note to you on 24 May remains, ie: returning part-time 4.15 to 8.15 pm and an earlier start for Alan to accommodate your family commitments. As you have now raised the issue of security, I confirm that we can commit to having someone escort you to your vehicle while you are working these hours.

If you prefer to work other hours then please indicate what these are and your date of return, understanding that Alan's hours of work cannot be altered beyond the agreed 7 am start.

Although we would like to conclude arrangements for your return I know that you and Alan have to discuss your personal arrangements, so to allow you time to do this can I ask you to please respond to me in writing by Wednesday 1st June?

[97] For one reason or another, the applicant did not respond to this e-mail.

[98] It is clear however that by the end of May, the parties were no closer to finalising arrangements for the applicant's return to work than they were over a month earlier when the first discussion took place on 19 April. I find on the evidence that there was never any agreement reached on either the date on which the applicant would return to work or the hours she would work upon her return.

[99] I also accept Lee's evidence that when she spoke with the applicant about her return to work it was always on the assumption that she would be returning to her old role i.e. the one she had before proceeding on maternity leave, and that if she were successful in getting some other position in the restructure, then the respondent would still "honour the parental requirements" [56].

[100] Under the process being followed by management, structural decisions were to be communicated to staff at a meeting on Friday 3 June. McLoughlin gave the applicant prior advice of the meeting scheduled for that day. While she had planned to attend, the applicant subsequently telephoned on the morning of Friday 3 June to advise that she would be unable to do so.

[101] Later that day, McLoughlin sent an e-mail [57] to the applicant scheduling another meeting with her on the following Monday 6 June. That e-mail relevantly reads:

Unfortunately it hasn't been possible for us to get together today due to your ill health. We had hoped to catch up with you face to face to discuss the restructure. Therefore we felt it was best to reschedule our meeting to Monday 06/06/05 …

[102] I note here in passing from the evidence of McLoughlin, that by this time (in fact, prior to the end of May - quite possibly on or about 25 May) Ian Christmas had actually secured his position in the new structure [58]. Given that the respondent was keen to have direct supervisors assess employees who had gone through the skills matrix exercise, this raises the question as to why McLoughlin or Brus-Bentley did not ask Christmas to fill out a skills matrix for the applicant some time towards the end of May, after his position was secure but prior to making their final decisions about other employees. I shall return to this later.

[103] At her meeting with the applicant on 6 June, McLoughlin handed the applicant a letter advising her that she had been made redundant. Brus-Bentley was with McLoughlin at the time. The termination letter [59] provided to the applicant relevantly reads:

As you know, we have been working through a restructure of the MP&L Department at Golden Grove. It is with a great deal of regret that I must now advise your position has been made redundant.

I am attaching details of your redundancy entitlement calculation …

We are able to offer you an alternative position of Materials handler, reporting to the Materials Team leader in the MP&L Department. Terms and conditions of this position are covered by our EBA. If you choose to accept this position, you will remain on your current salary for a period of 14 weeks, after which time you will revert to the correct classification for the role.

Restructuring decisions are always difficult, despite the formal process used, and we would like to give you the opportunity to consider the options we have given you. Therefore the redundancy would not take effect until close of business on Tuesday 7th June 2005.

Would you please contact me … on Tuesday 7th to advise if you would like to discuss the option of taking up the alternative role or the redundancy offer. If you prefer not to contact us, then I will take that as an acknowledgement of the redundancy and ensure prompt payment of all entitlements into your personal bank account.

[104] The applicant stated that the letter came as a shock. She advised the respondent that under the relevant award she believed it was a requirement that she be offered "an available position which (she) could perform nearest in status and remuneration to the job of stock controller" [60]. Lee on the other hand said that her understanding of the respondent's obligations under the maternity leave provisions and her advice to McLoughlin and Brus-Bentley was that:

"…it didn't mean she was beyond any restructure. It didn't mean she always, regardless of what happened, was promised if you like a role regardless of anything else that may happen and the important thing for me which I stressed with Leanne and Petra from the beginning, if you've got someone on maternity leave, you include them in the restructure. You include them in all your communications. You give that person every opportunity to be considered, to apply for jobs and to get a job the same as everybody else …my concern was that she wasn't treated differently from everyone else and that she be given the same opportunity as everyone else. I don't think that means we had to give her special treatment." [61]

[105] While the applicant maintains that the difficulties about finalising her return to work played a major part in the decision to make her redundant, I find that the decision was made on the basis of a genuine restructuring exercise and the associated skills assessment. I accept McLoughlin's evidence that "considerations of (the applicant's) parental responsibilities had nothing to do with the decision" [62].

[106] A calculation sheet outlining the components of the applicant's final redundancy pay was in evidence as Exhibit R1. Among other things it shows that the "redundancy component" the applicant received included 13.75 weeks' "redundancy pay", 160 hours "pay in lieu" and a figure representing the value of 55.8 hours of untaken sick leave. (The pay-out of sick leave stems from a provision in the respondent's enterprise agreement with "EBA employees". Although the applicant was not such an employee and hence not strictly entitled to the pay-out of sick leave, the respondent decided to apply the same provision in this instance.)

[107] The applicant wrote to Lee on 7 June [63] indicating that she would be unable to give a response to Lee's letter of 6 June, as requested, by the close of business that day. She advised that she had an appointment to obtain legal advice the next day. She continued in her letter of 7 June:

In your letter you have offered me a position within the company that is not only an EBA position but one that is also not comparable to my current status and pay. This is confirmed in your letter of offer where you state that "you would remain on your current salary for 14 weeks, after which time you will revert to the correct classification for the role".

I believe that this is in breach of the award conditions that apply to a person returning to work after a period of Maternity/Parental leave.

[108] Lee subsequently agreed to hold off processing the applicant's termination until the applicant had sought advice and until Lee had spoken with the union organiser, Joe Kane, whom the applicant had advised would be acting on her behalf. As things transpired, the redundancy was subsequently processed such that the effective date of termination was not until 24 June 2005.

The offer of an alternative position as a materials handler

[109] The applicant stated that there were 3 positions that she would have been able to fill in the new structure, namely "planner", "trainee planner" and "goods in/admin" [64]. As things transpired, Adrian Burnett became the planner in the MP&L team; Dean Breen was offered and accepted the role of trainee planner and Marco Paravia took on the role of goods in/admin.

[110] The applicant was of the view that she was quite capable of performing the trainee planner role and would only need "limited training" to become a planner [65]. She said that even the "goods inwards" role was something that was "closer" to the role she should have been offered. She claimed to have vastly more experience than the two former "EBA" material handlers - Dean Breen and Marco Paravia - who were given jobs she believes she should have had.

[111] That left then the one offer of alternative employment that was made, namely that of materials handler, which came with a further offer of salary maintenance for a period of 14 weeks (because that was the equivalent period of notice aligning with her redundancy calculation). Two other employees in the MP&L Department, who were in a similar situation to the applicant, were also offered alternative positions as materials handlers. One of the other employees accepted the offer of alternative employment, but neither the applicant nor the third employee (Andy Pratt) did so. (Pratt was therefore made redundant at the same time as the applicant.)

[112] The evidence was that the position of materials handler involved driving a forklift, cycle counting, checking incoming deliveries and some other general administration duties.

[113] McLoughlin confirmed that the respondent could still make such a position available in that the respondent currently has some temporary staff who could make way for the applicant, but she also explained that since the Golden Grove site would be closing down in some 12-18 months, a position as a materials handler could not be continued beyond the planned plant closure.

[114] McLoughlin stated that she believed the applicant was qualified for a materials handler position. She maintained there was no other job available "… when you take into account (the applicant's) competencies and those of the rest of the team" [66].

[115] The applicant said that she did not accept the offer of alternative employment as a materials handler because "it was way below what (her) current position was" [67]. In examination in chief she estimated the annual remuneration for a material handler to be about $30,000 compared with her remuneration as a stock controller, which was well over $40,000 per annum, although she conceded that she had not made any inquiries at the time about remuneration for a material handler position. She recalled the union organiser, Joe Kane, describing the difference in the two jobs as being the equivalent of a solicitor being asked to drive a taxi!

[116] Lee's evidence on this was that there was about $6,000 per annum difference in the base rate of pay for each position, excluding any allowance for overtime. While there were never any guarantees about how much overtime the applicant might have been able to earn as a materials handler, Lee said that she did examine the issue at the time and "… thought that there was every chance that she could earn the same, very close to the same amount of money" [68]. While this might have been possible, I find that there was nevertheless a substantial difference between the job on offer and the applicant's substantive position, both in terms of the nature of the work and the base earnings, and that the applicant was justified in expressing some concern about it, even though from the respondent's point of view, it might have been the only reasonable alternative.

The applicant's former substantive position of stock controller

[117] Following the restructure, the applicant's former substantive position of stock controller clearly no longer exists. It has now effectively been absorbed into the duties of existing MP&L employees. McLoughlin described the old job of stock controller as an "in between job, straddling both the Planning and Material Handling sections" [69] and went on to state that the roles that the applicant had previously performed "were easily absorbed into the revised structure". McLoughlin claimed that the applicant did not have any of the technical skills that were in short supply and that there were more qualified and capable individuals ahead of her who could perform any of the functions she had been performing.

[118] McLoughlin's evidence was that the restructuring has largely been successful, with both internal and external customers providing positive feedback. She maintained that there was now better stock control, less part shortages and tighter budgetary control.

[119] Exhibit R6 was a bundle of job applications and related material produced by the applicant to demonstrate her diligence in applying for other positions since her termination. I am satisfied on that material that she has done all that could reasonably be required of her to mitigate her loss.

[120] At or about the time that the applicant was made redundant, Alan Kerrison applied to take parental leave and even asked the respondent for a concession in respect of the amount of notice he had to give. (He wanted to give only 4 weeks' notice instead of the usual 10 weeks.) Lee said that she could recall speaking to Mr Kerrison along the lines of:

"… in light of what's happened, do you still want to apply for paternity leave and he said yes and I said so you are saying that you're going to be the primary care-giver of your child and he said yes, absolutely. All of that happened soon after (the applicant) was made redundant." [70]

[121] Although puzzled about Mr Kerrison's request, the respondent agreed to allow him to reduce the period of notice as he had asked, only to find that he subsequently resigned on the very day he was due to commence his parental leave (4 July 2005).

[122] On 8 November 2005 the respondent announced the closure of the Golden Grove site, to occur progressively over 18-months. McLoughlin stated [71] that the MP&L team at Golden Grove would slowly diminish in numbers as production processes are moved out over this period. Further reduction in the headcount has already occurred. Once the Golden Grove site has closed there will only be one MP&L team and that will be located at the respondent's other site at Edinburgh Park.

[123] The applicant indicated [72] that were she to return to employment with the respondent she would now be prepared to work whatever hours were available and full-time hours if necessary. She was confident that she would not have any problems working again with people such as McLoughlin and McKay, despite her view that McKay was dishonest in his assessment of her and that at least part of the reason for her dismissal was that McLoughlin was frustrated by being unable to accommodate the applicant's parental responsibilities.

[124] The evidence of both McLoughlin and Lee was that if the applicant were reinstated then since there is no position for her in the MP&L Department at present, the reality is that someone else would have to be moved out of the business or into a different role, not of their choice. Indeed, since no one was even allocated to the applicant's substantive position of stock controller when she was on maternity leave, there has never been anyone designated as a stock controller at any point in time since she last worked for the respondent in December 2004.

[125] Both parties presented written outlines of submission, supplemented by oral argument. I do not consider it necessary to regurgitate those submissions here by way of summary. I have however, had careful regard to them in the analysis and decision that follows.

[126] The provisions of Part VIA Division 3 of the Act relating to termination of employment apply in the circumstances outlined in s 170CB, which relevantly states:

"(1) Subdivision B applies, in so far as it relates to an application to the Commission for relief in relation to the termination of employment of an employee on the ground that that termination was harsh, unjust or unreasonable, if the employee concerned was, before the termination:

(c) a Federal award employee who was employed by a constitutional corporation

[127] It is common ground that the respondent is a "constitutional corporation" and is bound by the (Federal) Metal, Engineering and Associated Industries Award 1998 ("the Award") which underpins the wages and employment conditions of the respondent's so-called "blue collar" workers and effectively underpins the relevant certified agreements. It is also common ground that for the applicant to be a "Federal award employee" for the purposes of s 170CB, the work that she performed must be brought within the description of the term "Technical Field" as used in Part II of the Award and defined in cl 1.4.7(b) of Part I of the same Award as follows:

(i) Production planning, including scheduling, work study, and estimating materials, handling systems and like work.

(ii) Technical including inspection, quality control, supplier evaluation, laboratory, non-destructive testing, technical purchasing, and design and development work (prototypes, models, specifications) in both product and process areas and like work.

[128] In applying such a very broad and somewhat vague definition, it is important not to be overly technical but to try rather to take a reasonably expansive view of the descriptors.

[129] In the context of the applicant's role, the key part of the definition of "Technical Field" in cl 1.4.7(b) is par (i). The applicant did not perform any "design, draughting and like work" as described in par (iii). Neither did she perform any work which could be brought within the broad descriptors in par (ii) of "inspection", "supplier evaluation", "laboratory", "non-destructive testing", "technical purchasing" or "design and development". Like everyone else in the plant, she had a role in promoting and embracing continuous improvement but only in much the same generic sense as everyone else. It could not be said that her job involved "quality control". That then throws us back to par (i).

[130] The "Principal Accountabilities" of the applicant's position of Stock Controller in the MP&L Department, as outlined in her position description, were to be "responsible for the day to day monitoring of the effectiveness of MP&L, (including) the investigation and analysis of variances or problems with stock inventory". While this function obviously linked with the function of "production planning" in the sense that it was designed to make things like "scheduling" and "estimating" easier and more efficient for those who actually did that work, in my view it could not be said to be "production planning" per se. The evidence is clear that her job as stock controller did not involve "scheduling" and "estimating" in a "production planning" context. Further, I do not consider that the role she had in developing and running the so-called 'faxban system' could properly be described as "production planning", although again, by ensuring that stocks were replenished in a timely manner, her role obviously linked with, and facilitated the much broader and more complex function of "production planning", which was fundamentally the responsibility of others.

[131] Of the 9 specific 'bullet points' under the heading "Main Functions" in her position description, perhaps the most significant when compared with the descriptors in par (i) are:

• "review variances, determine possible causes and make recommendations" when compared with the concept of "work study", and

• "maintain production control systems, e.g. Kanban" and "utilisation of pull systems eg Kanban/Faxban through out all plants" when compared with the descriptor "handling systems and like work".

[132] I very much doubt whether the first of these could be elevated to the description of "work study". I agree with Mr Short that that term "work study" is more likely to be a reference to things like 'time and motion studies' relating to the efficiency or manner in which production planning itself is carried on. The second however might conceivably be brought within the descriptor "handling systems and like work", although it is by no means clear.

[133] The essence of par (i) however is "production planning". The other descriptors are all intended to be embraced by that broad term. And when I compare those parts of the position description under the headings "Principal Accountabilities" and "Main Functions" with the general concept of "production planning" and the evidence on these matters, I am simply not satisfied on the balance of probabilities that the applicant's job can be brought within the relevant descriptors.

[134] That being the case, my conclusion has to be that on the balance of probabilities, the applicant was probably not a "Federal award employee" for the purposes of s 170CB and the Commission therefore lacks jurisdiction in the matter. Accordingly, the application should be dismissed. However, given the inadequate state of the evidence on this point and the vagaries of the award definition, and in the event that I am wrong in this conclusion, I consider it prudent to review the merits of the matter as well.

[135] In turning to the merits, I have had regard to the specific matters outlined in s 170CG(3), the first two of which are "whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking …" and "whether the employee was notified of that reason".

[136] In this respect I am satisfied that the termination was solely for reasons related to redundancy as a result of a genuine restructuring exercise undertaken by management. While I can understand how the applicant might perceive that her selection for redundancy was all too 'convenient' for the respondent given the difficulties associated with the parties agreeing on arrangements for her return to work, I find that there is nothing of substance to suggest that the respondent did not go about every aspect of the exercise in good faith. The respondent therefore had a valid reason for termination. The applicant was also notified of the reason for her termination in the terms of sub par (b) of s 170CG(3).

[137] S 170CG(3)(c) requires the Commission to consider whether the applicant was given an opportunity to respond to any reason related to her capacity or conduct. While technically, the reason for dismissal related solely to the issue of redundancy, the applicant was of course selected for redundancy on the basis of the results of the skills matrix, completed by Breeding, McKay and the applicant herself.

[138] On the material before me I consider that the respondent was justified in not originally asking Ian Christmas to complete the skills matrix in view of his obvious conflict of interest. I am also satisfied that as a matter of practicality, Guy Loyson was not reasonably available at the time.

[139] However two things here are of concern to me here. The first is the vast discrepancy between the applicant's personal assessment and that of Breeding and McKay. While some wide discrepancies in some areas could always be expected in an exercise of this nature, the vast difference between what the applicant thought of herself and what two senior managers in the organisation thought of her, should in my view, have been investigated further. It could have at least been brought to the applicant's attention, and her comments sought by way of a personal defence or explanation or clarification before moving on with the process. In my view, a prudent employer would have considered the discrepancy between the skills matrix 'scores' of the applicant on the one hand and the two managers on the other to be of such magnitude that it warranted something in the nature of a cross-check at least. And who better to cross-check with than Ian Christmas, who by the time the decision was being made about the applicant, had already secured a position in the new structure?

[140] The evidence is that the decision on the role of Ian Christmas in the new structure was made at least a week or so before the decision on the applicant. Although it might have been a little uncomfortable for management to ask him to fill out a skills matrix for the applicant at such a late stage, it could have been done. He was more directly associated with the applicant than either McKay or Breeding. His 'scores' could have provided a valuable cross-check. The fact that it was not done must be weighed in the balance. And this is particularly so given that what McLoughlin was faced with was two quite unflattering assessments from two people who had previously managed or supervised the applicant but yet neither of whom had ever felt the need to formally warn her about her attitude in the context of the 'team culture' that the respondent was so keen to encourage.

[141] Against this however, Mr Short argued it was clear from the evidence of Ian Christmas, that had he given his view of the applicant at the time, he would have broadly supported the views of Breeding and McKay anyway. His evidence was that he would have ranked the applicant last among members of the MP&L team in terms of the list of behavioural competencies. He was not surprised that the applicant was one of the two employees made redundant in the final analysis and he agreed that the decision in this respect fell within a range of reasonable outcomes that he might have expected from such an exercise. He had in fact identified her as a possible person to be made redundant in an earlier exercise in 2003/04 when Guy Loyson had asked him to consider who might possibly be removed from the team at that time [73].

[142] In the circumstances I consider it safe to conclude that had both the applicant and Ian Christmas both been consulted on the skills matrix results, management would have been left with 2 quite negative management reports and one not very flattering supervisory report, and stacked up against the applicant's own subjective assessment, nothing is likely to have change in terms of the end result.

[143] I accept that pars (d), (da) and (db) of s 170CG(3) of the Act are not relevant in the circumstances of this case. That then leaves par (e) and its reference to "any other matters that the Commission considers relevant".

[144] In the case of dismissals as a result of redundancy, the Commission is generally careful to ensure that employees are consulted as early as possible in the process. One of the unusual features of this case was that because the structure was not finally determined until quite late in the piece, management did not appear to even contemplate the possibility of redundancies until well after the skills matrix exercise had been completed. As a consequence, the employees entered the skills matrix process not knowing that some of them might be excluded from the final structure, largely as a consequence of the results of the skills matrix process.

[145] I have found that, contrary to the applicant's evidence, never at any stage did management mislead the employees by telling them that there were not going to be any redundancies. However McLoughlin, Lee and Brus-Bentley must have known that until the final structure had been determined, there was always at least the possibility that the new structure might not be able to accommodate one or more of the relevant employees. In my view it would have been appropriate to advise the employees of this, although again, I have to say that had they done so, it is difficult to see how it would have had any material effect on the eventual outcome as far as the applicant is concerned.

[146] On the positive side of the ledger for the respondent, another factor to be considered in weighing up all the circumstances of the case is that, once having decided that it could not find a position for the applicant in the new structure, the respondent did turn its attention to alternative positions and did in fact offer the applicant the position of materials handler. While I accept that the remuneration attaching to this position was less than the applicant's old position of stock controller [74], I find that it was nevertheless a genuine offer of alternative employment for the applicant in a position that she was capable of performing. In all the circumstances, it was the best alternative open to the respondent if it were to maintain the principle of merit selection in filling the various positions in the new MP&L structure.

[147] I have also had regard to the fact that the respondent treated the applicant generously in terms of paying out untaken sick leave (something that was only required for 'EBA employees') and in making a payment in lieu of notice when in fact, since the applicant was on unpaid leave at the time, it was under no obligation to do so. I also note that the calculation of the applicant's severance payment was on the basis of a full-time wage rather than a wage commensurate with the part-time hours to which she was seeking to return. The respondent also agreed to delay processing the formalities associated with the termination until such time as the applicant had taken advice from her union. All these things are factors that need to be considered in the mix for the purposes of s 170CG(3)(e).

[148] One of the "other matters" put to me for consideration by Mr Llewellyn-Jones, for the applicant, was the issue of the correct application of the parental/maternity leave provisions governing the applicant's employment. He submitted that even if I were to find that the applicant were not covered by the Award, that would not be the end of the matter in that the applicant was on maternity leave at the time of her dismissal. Whether she was a Federal Award employee and hence subject to the terms of Sch 14 'Parental leave' of the Act, or whether, by default, she fell under the 'safety net' terms of Sch 5 of the South Australian Fair Work Act 1994 he submitted that the applicant was entitled, immediately upon becoming redundant, to a position "nearest in status and remuneration" [75] to her former position. He submitted that the very failure of the respondent to provide such a position to the applicant immediately upon her being made redundant (even leaving aside the bone fide nature of that redundancy, which the applicant disputes) rendered the termination harsh, unjust or unreasonable in the terms of the Act[76]. In fact, as I understood his submission, it was that the respondent was obligated to employ the applicant in whatever position could be regarded as "nearest in status and remuneration to (her former position)" and that, he contended, would have been either the planner or at very least, the trainee planner position.

[149] While there could be a whole separate debate over what "nearest in status and remuneration" actually means in this context, and leaving aside for the present the jurisdictional strictures of s 170CB, as I see it, his argument overlooks the fact that both cl 12 of Sch 14 of the Act and cl 7 of Sch 5 of the Fair Work Act 1994 only come into operation once the employee has actually returned to work following a period of parental leave. Cl 12(1) of Sch 14 of the Act states that cl 12 only applies "… when an employee returns to work after a period of Schedule 14 maternity leave". In similar vein, cl 7(1) of Sch 5 of the Fair Work Act 1994 provides that it is only "on finishing parental leave … (that) … an employee is entitled to the position the employee held immediately before starting parental leave" [77]. As at both the date of the letter of termination (6 June 2005) and the effective date of the termination itself (24 June 2005) it could not be said that the applicant had either "returned to work" or had otherwise "finished parental leave" in the terms of those Federal and State provisions. As I see it, what this means in practice is therefore that maternity leave provisions do not operate to quarantine an employee from the effects of a genuine redundancy occurring during a period of maternity leave, as long as the termination due to redundancy is otherwise properly and fairly carried out.

[150] In summary, it is clear from the above analysis that there were some elements of procedural unfairness in the respondent's actions. However, when it comes to determining applications of this nature, it has never simply been a case of catching an employer doing something wrong and then applying a strict policy of 'one strike and you're out'. My experience is that it is only very seldom that an employer's termination process can be said to be entirely beyond criticism. The key thing is for all the relevant facts and circumstances to be weighed in the balance in order for the Commission to characterise the dismissal 'as a whole'.

[151] Having done so here, according to the requirements of s 170CG(3), I have reached the conclusion that there was a valid reason for the dismissal and that the applicant was properly notified of that reason. While the procedure adopted by the respondent could have been improved in some respects (as outlined above) even a perfect procedure would not have made any difference to the final result. There were also other reasonably generous aspects of the way in which the applicant was treated and these factors must also be considered in the mix.

[152] After weighing all the relevant factors pro and con, and considering the dismissal as a whole, I conclude that on the merits of the case, the dismissal was not harsh, unjust or unreasonable.

[153] Accordingly, and having regard also to my conclusions on jurisdiction [78], the application is dismissed.

Printed by authority of the Commonwealth Government Printer

[1] Accepted into evidence as Exhibit A1

[2] See for example tr at PN89 and PN106

[3] A good example of this is in cross-examination at PN221 - PN224

[7] Attachment TK7 to her statement A1

[8] Attachment 7 to McLoughlin's statement

[9] These terms are all found in cl 1.4.7(b) of the Metal, Engineering and Associated Industries Award 1998, as part of the general definition of the term "Technical Field"

[15] The witness McLoughlin gives her explanation of the reasons at tr PN1722.

[16] Par 33 of the applicant's statement, A1

[23] This is a reference to Dean Breen - refer TK19 attached to the applicant's statement.

[27] The timeline provided to the applicant is at TK20 and at attachment 1 to McLoughlin's statement, Exhibit R4.

[28] Refer par 7 of her statement R4.

[31] Copies of these assessments were in evidence at TK24 of A1

[40] Refer e-mail communication dated 23 May 2005 at TK25

[41] A copy of the final structure is at TK28. Note: Although this has names attached to the various positions, the copy provided to the employees at the time did not have names attached to it.

[44] Pars 22-23 of Brus-Bentley's statement, R5

[45] The applicant's skill matrix assessments are contained at attachment 4 to McLoughlin's statement, R4.

[55] Copy of e-mail is at TK 31 of A1.

[58] Tr PN2010-2011 and also PN2176-2181

[68] Tr PN1537. She would also have had to work considerably more hours.

[74] I discount the possibility of paid overtime here, given that regular overtime was not guaranteed and given also that it would be unlikely that the applicant would be much interested in working longer hours, considering that she would only just be returning from parental leave.

[75] See cl 12(3) of Part 2 'Maternity Leave' of Sch 14 'Parental Leave' of the Workplace Relations Act 1996 and cl 7(2)(b) of Sch 5 - Minimum standard for parental leave

[76] The arguments and counter-arguments in this regard are well documented in an exchange of correspondence between the applicant's union (via Mr Llewellyn-Jones) and solicitors for the respondent, copies of which were before the Commission as attachments TK 37-TK40 to the applicant's statement, as well as a copy of transcript of related s 127 proceedings before O'Callaghan SDP on 24 June 2005, which was before me as TK41.

[77] The highlighting of the respective provisions is mine in each case.