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[2008] AIRC 456
Australian Industrial Relations Commission
2008-05-26
Original judgment source is linked above.
s.643 application for relief in respect of termination of employment
Termination of employment - objection to jurisdiction - genuine operational reasons.
[1] This decision considers the objection to jurisdiction made by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) in relation to the application for relief made pursuant to the Workplace Relations Act 1996 (the Act) by Dr Warren Stannard. In June 1998 Dr Stannard was employed at CSIRO in the division of Textile and Fibre Technology (CTFT) originally as a Research Fellow, and, since September 2000, in the role of Research Engineer - Textile Machinery. On 3 January 2008 Dr Stannard's employment was terminated by CSIRO on the grounds that his position was surplus to the needs of CSIRO.
[2] Dr Stannard's application relied upon the ground provided in s.643(1)(a) of the Act, that the termination of his employment was harsh, unjust and unreasonable and upon an alleged contravention of s.659 (which sets out certain grounds upon which employment must not be terminated) and more particularly, upon a ground - family responsibilities - found within s.659(2)(f). The remedy sought was reinstatement, an amount in relation to remuneration lost or likely to have been lost and a written public apology.
[3] The jurisdictional objection made by the CSIRO relies upon s.649 which, relevantly, is in the following terms:
"649 Dismissal of application relating to termination for operational reasons
(a) an application is made, or is purported to have been made, under subsection 643(1):
(i) on the ground referred to in paragraph 643(1)(a); or
(i) the respondent has moved for the dismissal of the application on the ground that the application is outside the jurisdiction of the Commission because the employee's employment was terminated for genuine operational reasons or for reasons that include genuine operational reasons; or
(ii) it appears to the Commission, on the face of all the materials before it, that the employee's employment may have been terminated for genuine operational reasons or for reasons that include genuine operational reasons;
the Commission must hold a hearing to deal with the operational reasons issue before taking any further action in relation to the application, other than dealing with a matter on the papers as provided by section 645, 646, 647 or 648.
(2) If, as a result of the hearing, the Commission is satisfied that the operational reasons relied on by the respondent were genuine, the Commission must:
(a) if subparagraph (1)(a)(i) applies - make an order dismissing the application; or
(b) if subparagraph (1)(a)(ii) applies - make an order dismissing the application to the extent that it is made on the ground referred to in paragraph 643(1)(a)."
[4] Section 649 can be seen to apply the exception to s.643(1) relevant to genuine operational reasons which are provided for at s.643(8) and (9). Those subsections are in the following terms:
"(8) An application under subsection (1) must not be made on the ground referred to in paragraph (1)(a), or on grounds that include that ground, if the employee's employment was terminated for genuine operational reasons or for reasons that include genuine operational reasons.
(9) For the purposes of subsection (8), operational reasons are reasons of an economic, technological, structural or similar nature relating to the employer's undertaking, establishment."
[5] The objection came on for hearing in Melbourne on 3 March 2008 when Ms A Allars appeared for CSIRO and Mr N Campbell, of counsel, by leave for Dr Stannard.
[6] In putting the case for CSIRO that s.643(8) had application, a substantial body of material was provided to the Commission said to support a conclusion that a raft of factors and influences, outlined below, had affected CSIRO and more specifically CTFT. The Commission was urged to conclude that the reasons for Dr Stannard's dismissal were genuine operational reasons of an economic, technological, structural or similar nature which related to CSIRO's undertaking, establishment, service or business such as to meet the definition found at s.643(9).
[7] Evidence was given by Dr William Humphries as to the basis upon which Dr Stannard's retrenchment arose and as to the more particular reasons why Dr Stannard's position over others in CTFT, was chosen for redundancy. Dr Humphries' evidence was that after 30 years at CSIRO and having occupied a range of management positions, for some two years he had been the Deputy Chief of CTFT, responsible for the science planning, quality, outputs and capability development of the fibre and fibrous structures "knowledge centre". It was said that CTFT, at February 2008, employed some 135 staff in "multi-fibre production, research, development and innovation facilities, located in Geelong and Clayton" and the division's purpose was given as being "to provide innovative fibre and textile solutions across a broad spectrum of Australia's needs, stimulate international demand for Australia's natural fibres and create new commercial products based on advanced fibrous structures and materials." [Exhibit CSIRO 1, paragraphs 4 and 5].
[8] The thrust of Dr Humphries' evidence was that following change affecting CTFT over recent years, with decreasing funding from the wool industry, a new head, Dr Nigel Johnson (officially designated "Chief") had been appointed some 2� years previously. A review of CTFT was subsequently conducted to examine the direction of the division whose numbers had decreased from a high of 450 people in years gone by to the lesser figure given above [Transcript PN81]. The review, conducted in March 2007 with the assistance of an external consultant, coincided with the triennial review conducted of all CSIRO divisions' science direction and quality. Dr Humphries' account of the events leading to the retrenchments which included Dr Stannard's position, described structural market issues affecting CTFT, funding implications and the consequence of considerations including, ironically, the success of CTFT's efforts in such fields as instrument development relative to fibre applications.
[9] The external review referred to above, the March 2007, 'Science Assessment Review: Textile Fibre Technology' was filed by the CSIRO in these proceedings. While it is not proposed to detail this review, it is noted that the external scientists and academics constituting the review body opined, at page 4 of their work, that the "proposed new science direction is very achievable based on the science capacities already available. It is also consistent with direction of fibre based industries in modern advanced economies. New skills will need to be developed to speed up the commercialisation of the numerous promising ideas now emerging." and at page 5, in the first of its recommendations, the following appeared:
"The Review Committee strongly endorses the new strategic direction of the Division and is keen to see this trend continue and strengthen. We recommend that CSIRO support this bold initiative through its formative stages. This will enable TFT to move into the mainstream of CSIRO activities, shift its focus into more transformational science, lift its publication performance and draw in fresh expertise. Although some new blood will be required, the new focus essentially enlarges the market for the Division's current skill base, enabling it to contribute to a wider range of Australian enterprises."
[10] Dr Humphries' evidence considered the affects of the division's new approach under a range of headings. The first dealt with the new policy's implications particularly upon wool research. In setting out Dr Humphries' evidence it is convenient to provide portions of his statement although much detail provided in the materials filed is omitted in the interests of brevity. That material supports the evidence of Dr Humphries summarised below:
"Economic and structural changes in Textile and Fibre Technology
6. Leading up to Dr Stannard's retrenchment, CTFT was implementing a new strategic direction, changing from a focus on wool textiles, to a broader fibre and fibrous structures emphasis with applications in a broad range of industries. The new strategy was triggered in part by the reduced level of wool research funding from the wool growing sector and consequent reduction and redirection of investment by CSIRO, and in part by opportunities for fibrous materials to be used in solving some of the major challenges facing Australia in water, energy, health, security and manufacturing.
7. Subsequently CTFT needed to substantially scale-back its wool research effort, and increased its effort in new areas of fibre and textile research. Whilst much of CTFT's wool capability was more broadly relevant and could be utilised in the new areas, some wool-specific capability which was no longer required by the industry could not be re-deployed to the new domains, and some required capability that could not be grown internally would need to be recruited.
8. Staff were advised and consulted on the need for change and advised on budget and capability shift through regular all-staff meetings called "chief's Briefs" which included question and answer opportunities. In particular from mid 2006 it was emphasised that CTFT was facing an operational deficit of around $4million and there was a need to refocus efforts in advanced fibrous materials rather than wool and that staff should make strenuous efforts to source new external funds. "Chief's Briefs" were provided on 14 March 2006, 12 July 2006, 1 November 2006, 19 February 2007, 2 April 2007, 21 August 2007 and 12 November 2007.
9. Key documents were made available to all staff by placement on the CTFT Intranet. These included the Vision's new Strategy, the external Science Assessment Review and Management response and the Operational Plan.
10. On 21 August 2007 the Chief of CTFT, Dr Nigel Johnson provided a "Chief's Brief" to CTFT staff about a number of structural and economic changes which would impact on the future operations of the Division and result in a number of staff redundancies. At the briefing Dr Johnson reminded staff of the outcomes of a number of CSIRO wide and CTFT specific reviews that were taken into account for the review of CTFT's staffing capability. Dr Johnson also advised staff that due to a loss of external contracts and reduced funding, for the 2007/2008 financial year there would be a budget shortfall within the Division. This shortfall was equivalent to five full time equivalent staff (FTEs). He advised of the need to recruit new skills with four new positions identified. This meant there was a requirement for up to 9 full time equivalent staff redundancies.
11. At the "Chief's Brief" Dr Johnson also advised staff that CTFT management had assessed current capability and matched that against existing needs, including the possibilities of redeployment and training within the Division. He informed staff that he would consider the substitution of a volunteer for a staff member whose position was identified as potentially surplus and as a result they were potentially redundant. He said that a substitution would only proceed if it was considered to be in the best interests of CSIRO." [Exhibit CSIRO 1, paragraphs 6 - 11].
[11] Associated with the new strategy and the requirement for up to 9 full time equivalent staff redundancies, a management team including Dr Humphries, conducted "a review of staffing capability in both research and support areas of the Division. Skills in each of the Division's capability areas were reviewed for relevance to the future needs of the Division, under the new strategy. For each area decisions were made on the need to reduce, increase or change skills." [Dr Humphries' statement, Exhibit CSIRO 1, paragraph 12].
[12] The changes in research emphasis, particularly in Dr Stannard's area were set out in Dr Humphries' outline of the management review of the CTFT staffing capability. The following paragraphs set out the thrust of Dr Humphries' evidence as to the effect on Dr Stannard's work of the management review.
"13.The skills in the Instrumentation and Flexible Electronics program, to which Dr Stannard belonged, had traditionally been used in the development of instruments for the specification of wool and cotton fibre characteristics. This had required high level physics sills particularly in the early stages of these products. Although some activities would remain in this area, associated with CTFT's contribution to the Sheep Cooperative Research Centre, overall the area of research had reduced in priority particularly in the wool fibre metrology area. Whilst some activities in the new advanced materials area were likely to increase, the mix of skills required to service this work from the Instrumentation and Flexible Electronics Programs had changed. For example there would now be a greater need for engineering development to deliver solutions to problems in projects, such as the building of robots and the automation of novel fibre processing machines, rather than high level physics skills required to develop novel instruments Some physics and related statistical skills would still be required for the remaining instrument work but at a lower level of resourcing.
14. Due to this decrease in instrumentation development it was recommended that the capability in physics/metrology and therefore the number of Research Scientists in this programme should be decreased but the increased activity in advanced materials would require new specialist skills in advanced software engineering. Mechanical engineering was an area where in the longer term there would be a need to replace some resources which had recently been lost in the Division." [Exhibit CSIRO 1, paragraphs 13 and 14].
[13] Equivalent analyses were carried out in the other program areas of CTFT, in Dr Humphries' account, and eight other CTFT staff members' positions were identified as surplus. These included a Level 4 Technical Services Supervisor, four Level 3 Technical Services Technicians, a Level 3 Graphics Assistant, a level 6 Research Projects expert and a Level 7 Research Scientist who had worked in the "modelling of heat and mass transfer processes in wool finishing" [Exhibit CSIRO 1, paragraph 15]. References to various classification 'Levels' refer to the categorisation of CSIRO staff as provided for in the CSIRO Enterprise Agreement 2005-2008 [AG843819 PR964443] (the Agreement).
[14] In the 2006/2007 period eight CTFT staff, including Research Scientists classified at Levels 8, 7 and 5, concluded their employment at CTFT through retirement, transfer, resignation or contract expiry and were not replaced. Additionally, Dr Humphries' evidence was that in 2007/2008 a further three staff, not including the retrenchees, also including Research Scientists classified at Levels 8, 7 and 5, were to cease employment at CTFT. The staff involved were identified and their projected dates of disengagement provided [Exhibit CSIRO 1, paragraph 17].
[15] The staffing traffic did however flow in two directions. In the more general context of the CTFT establishment several growth areas were identified as requiring staff additions to provide the necessary expertise both in the short term and over time to support several identified programs. One of these positions, the Software Engineer-Mechatronics, was to assume some importance in Dr Stannard's case.
The Identification of Dr Stannard's Role as Surplus to Requirements
[16] Dr Humphries' evidence set out in some detail the basis for the selection of Dr Stannard's position for redundancy over the position of several of his departmental peers, also said to be research scientists:
"19.The Management Team reviewed the Research Scientist skills within the Instrumentation and Flexible Electronics program. In addition to Dr Stannard's physics skills, there are two other research scientists working in the broad area of instrumentation development: Dr Don Ramsay who is an expert in optics and lasers and Mr Graham Higgerson who has extensive experience in fibre metrology, including being the group's statistical expert.
20. It was decided that, to deliver solutions to projects in the instrumentation area into the future, there was the need to retain the advanced optical and specialist statistical skills of Dr Ramsay and Dr Higgerson at the CSOF6 and CSOF7 levels as these would be key skills in the reduced effort in instrumentation. It was also decided to increase our engineering skills by the immediate hiring of a software engineer and the possible future recruitment of a mechanical engineer if finances improved to increase our capability in robotics and automation. These changes would result in a better fit of the overall skills of this Program to the future portfolio of projects requiring this Program's skills. This led to Dr Stannard's role at CSOF Level 5 being identified as potentially surplus to the staffing requirements of CTFT." [Exhibit CSIRO 1, paragraphs 19 and 20]
[17] When extensive efforts to redeploy Dr Stannard were not fruitful the decision to retrench was given effect.
[18] Dr Stannard's witness statement [Exhibit S1] set out in some detail his academic and working history and described many of the roles fulfilled and responsibilities accepted by him at CSIRO. It is clear from Dr Stannard's evidence that much of his work has "involved software development, coding and analysis and the interpretation of software systems with instruments and machines" [Exhibit S1, paragraph 13]. It was emphasised in Dr Stannard's case that the design, development and commissioning of machines have long been important parts of his work [Exhibit S1, paragraph 13].
[19] In the applicant's account of events, his supervisor from early 2006, Dr Lucas, took exception to Dr Stannard periodically working from home, despite the fact that for some years he "had had flexible work patterns" [Exhibit S1, paragraph 23]. Dr Stannard's evidence was that his "ad-hoc flexible arrangements" were available to him and worked well when a child was sick or there were curriculum days at school. Dr Stannard has four children, the youngest of whom is seven years old and diagnosed with a mild form of autism. In August 2006 Dr Lucas was said to have told Dr Stannard that his working pattern was not consistent with a clause in the Agreement stipulating that home-based work not be used as a substitute for dependant care. Dr Stannard's partner was said to work long hours in Melbourne so that the task of day to day family responsibilities at the family home at Wallington predominantly rested with Dr Stannard.
[20] In mid 2007 exchanges between he and Dr Lucas set out in Dr Stannard's statement as to the applicant working from home reflected, at best, a lack of agreement between them as to CTFT's capacity and preparedness to accommodate Dr Stannard's desire to occasionally do so to meet his family responsibilities. Dr Stannard's evidence was that in later July 2007 he sought assistance from CTFT's HR Manager and an HR officer as to the continued working of flexible work hours, having advised them of Dr Lucas' position. Dr Stannard later told the HR Manager, Mr Richmond, that he was considering taking the fact that he alone, amongst CSIRO staff, was being denied the ability to work from home, "to HREOC" [Exhibit S1, paragraphs 34-35].
[21] On 8 August 2007 a meeting occurred between Drs Stannard and Lucas during which matters relating to the working from home issue and Dr Stannard's performance, dedication and professional publication efforts were sought to be discussed by Dr Lucas. Dr Stannard's evidence, set out in his notes of the meeting and provided in an attachment to his witness statement [Exhibit WS 2], was that the meeting was an unhappy one with Dr Stannard ultimately insisting that it conclude. The notes, written on the day following the discussion, record that Dr Stannard told Dr Lucas that the conversation was "the most demeaning and patronizing discussion I have had in my working life … (that) I had had enough, please, leave, I turned around and continued with my work." [Exhibit WS 2, page 2].
[23] Dr Stannard's evidence was that on 12 September 2007, Dr Nigel Johnson, Chief of CTFT met Dr Stannard (with the HR Manager and a union representative) and advised him that as the management team had identified an excess of scientific staff in the wool metrology area it had been decided that his position was redundant. Dr Stannard's evidence was that he "…said words to the effect that I was not a wool metrologist and that my skills were ideally suited to the research of the new advanced materials that the division was pursuing. Dr Johnson looked uncomfortable and only repeated his initial statement." [Exhibit S1, paragraph 42]. Dr Johnson's following letter, advising Dr Stannard that he was 'potentially surplus to requirements', did not refer to wool metrology. Subsequently Dr Stannard was retrenched.
[24] While it is unnecessary to canvass the close detail of Dr Stannard's argument, the logic of his position being declared surplus, given the new areas to be developed under Dr Johnson's reorientation of CTFT, was questioned in a comprehensive range of ways including that:
[25] Dr Stannard also called into doubt the accuracy of a number of important statements underpinning Dr Humphries' evidence relative to the CTFT skill sets and the capacities and duties of the applicant. The argument sought to establish that CSIRO had fundamentally misdescribed Dr Stannard's duties to render him vulnerable within the review and that the termination of his employment on redundancy grounds was a sham and discriminatory.
[27] It was submitted (at transcript PN691) that Dr Humphries was "one of the decision makers" involved in providing Dr Johnson with the recommendation as to Dr Stannard. In putting this submission Ms Allars for CSIRO variously acknowledged Dr Johnson as the "final decision maker" [Transcript PN7691] and [at Transcript PN693] as the "key decision maker".
[28] In addition to the position summarised at paragraphs [24] and [25] above it was put for Dr Stannard that on the evidence the Commission should not be satisfied that operational reasons provided the basis for Dr Stannard's termination. The grounds for this contention were that:
[29] Counsel for Dr Stannard relied on the decision of the Full Bench (Giudice J President, Drake SDP and Whelan C) in A Cruickshank v Priceline Pty Ltd (Priceline), AIRCFB 513, particularly the line of reasoning in relation to the reasons for the termination of an employee being those disclosed by the evidence of the decision maker.
[30] It will be helpful in appreciating the aspects of Priceline upon which emphasis was placed if several excerpts are reproduced. Reliance was had for the analysis in Priceline of the satisfaction required to be reached by the Commission member at an operational reasons hearing. In Priceline the Full Bench said:
"… If an employer respondent moves for dismissal of an application on the ground, or if it appears to the Commission, that the employee's employment was not terminated for genuine operational reasons, the Commission must conduct a hearing to determine the operational reasons issue before taking any further action, subject to some specified exceptions. In light of the cases advanced at the hearing the Commission must make an order dismissing the application, at least in so far as the application is made on the ground that the termination was harsh, unjust or unreasonable, if it is "satisfied that the operational reasons relied upon by the respondent were genuine."
Where the procedure in s.649 applies, therefore, the question is whether the Commission is "satisfied" that any operational reasons advanced by the employer for the termination are genuine reasons. While there is no presumption to the contrary, unless the employer produces evidence of the reasons for the termination and persuades the Commission they are or include genuine operational reasons, the jurisdictional objection will fail. Questions of onus may arise but they are unlikely to play a large part in the decision-making process. The question ultimately is whether the Commission is satisfied, on the evidence and material presented to it by the parties, that there were genuine operational reasons.
Speaking generally the reasons for termination of employment are the reasons of the decision-maker. In many cases the decision-maker will be easily identifiable. In other cases the situation may not be straight forward. For example the decision may have been taken by a group such as a committee. In any event the evidence of the decision-maker, or decision-makers if there are more than one, will be pivotal." [Paragraphs 8-10].
"To ascertain the reasons for an employer's decision to terminate an employee's employment, it is necessary to focus on the reasons, if any, advanced by the decision-maker. It is clear that the credibility of evidence given by the decision-maker may be put in issue in some cases. If this occurs the Commission will be required to evaluate the evidence given by the decision-maker against the other evidence and the circumstances overall in the usual way."
[31] Mr Campbell argued that Dr Johnson was the decision maker in this case - as was the evidence of Dr Humphries - upon receiving the recommendation of the management team. It was then said, "and the decision maker has not been called in this proceeding so the employer cannot make out its case to satisfy the Commission because it hasn't called the decision maker." [Transcript PN741] and further, "… Dr Johnson made any decisions. And we don't know the reasons Dr Johnson made the decisions. He was not called. He was available." [Transcript PN742]. As there was no evidence to controvert Dr Johnson's status as decision maker so there was said to be no doubt that the Commission should not be satisfied that the termination was for operational reasons [Transcript PN743].
[32] In the alternative, were the Commission to find that Dr Johnson was not the decision maker, it was put that there was still an evidentiary deficit. This was because only one member of the committee who made the recommendations had given evidence; that no notes were produced (typed notes having been circulated); that there was no evidence from Dr Humphries "that he was even present when the decision was made in relation to Dr Stannard" [Transcript PN746]; that there was no evidence of Dr Johnson as a mere rubber-stamper of the recommendations (that for example, he had accepted all of the recommendations that were made) or that Dr Johnson had made the decision on a particular basis.
[33] As to the conduct alleged to have been engaged in by Dr Lucas it was said there had been unfair and harassing treatment which related to Dr Stannard's family responsibilities, and that Dr Lucas had proposed Dr Stannard for redundancy. Given that Dr Lucas had not given evidence the applicant relied principally on the fact that Dr Humphries had given no evidence about the matters relevant to Dr Lucas' actions (as being the reason for the termination) detailed in Dr Stannard's witness statement. It was stressed that CSIRO had chosen not to answer the case set out in the applicant's filed witness statement and subsequent viva voce evidence and, moreover, that there had not even been "a bland denial" [Transcript PN756].
[34] As to the evidence led by CSIRO it was put (as an alternative to the substantive argument outlined above) that Dr Stannard's function had been misdescribed, as his position had been mistitled throughout by the respondent, that, while sometimes helpful in performing his duties, he was not calling upon his PhD in physics and, rather, was significantly involved in software and mechanical engineering. The close commonality of function between the duties actually performed by Dr Stannard and those required of the new lower classified software engineering position were also relied upon, as was a claim that Dr Humphries' evidence acknowledged the commonality of function between the two roles, other than a call for greater innovation from a position at Dr Stannard's level and that Dr Stannard 'added more value'.
[35] It was said for Dr Stannard that he was not a 'wool scientist', that he had performed his innovative work across a wide range of materials, specifying the realms of medical textiles and advanced materials. Illustrative of this is Dr Stannard's evidence in reply to Dr Humphries' statement [paragraph 14 of Exhibit CSIRO 1] that CSIRO required new specialist skills in advanced software engineering to meet the increased activity in advanced materials. Dr Stannard's response was that he had "specialist skills in advanced software engineering especially in relation to advanced materials" [Exhibit S1, paragraph 72].
[36] As to the duties (not the selection criteria) of the software engineering-mechatronics position, it was submitted that they were the same as those required for his position and that it followed that the two jobs, differently titled, were basically the same. Dr Stannard gave extensive evidence that the duties of the 'new' position were all part of his key duties prior to his termination [Exhibit S1, paragraphs 59-70].
[37] When presented with the opportunity to comment on the 'decision maker' argument relied on by the applicant as a counter to CSIRO's application to deny jurisdiction, CSIRO referred to the management committee's review of capability and recommendations being forwarded to Dr Johnson.
[38] When presented with the opportunity to reply as to the applicant's case that the respondent, as objector seeking to oust jurisdiction, had not met the onus to respond to highly relevant matters and had not called key, available witnesses, CSIRO relied on the committee's review.
[39] In coming to a decided view, that is, as to the Commission being satisfied as required by s.649(2), both parties have referred to Priceline and urged its application to the present circumstances. Beyond that single element of unanimity the cases put present the Commission with no small difficulty, so non responsive is that of CSIRO as objector, to the case filed in response by Dr Stannard.
[40] That said, for CSIRO a case of real substance is presented, setting out the change over time in the wool industry, and beyond, as affecting CTFT, its funding and role within CSIRO and the new directions and emphasis discerned as necessary by Dr Johnson. Equally relied upon is the external review diagnosing most serious flaws in the relationship between CTFT and a critically important client not here identified (as to do so may be inimical to the future interests of CTFT). It is sufficient to note that the external review, endorsing Dr Johnson's worldview for CTFT, identified a range of new directions required to be accepted as conducing to CTFT's medium and longer term reinvigoration and as a remedy to continuing decline and eventual stagnation.
[41] These are propounded by CSIRO as entirely establishing that the operational reasons behind Dr Stannard's termination are bona fide and, by their genuineness, providing the requisite degree of satisfaction for the Commission in giving effect to the order sought pursuant to s.649(2).
[42] It is in this respect that CSIRO calls up Priceline, where at paragraph 8 it is said that, "In light of the cases advanced at the hearing the Commission must make an order dismissing the application, at least insofar as the application is made on the ground that the termination was harsh, unjust or unreasonable, if it is "satisfied that the operational reasons relied upon by the respondent were genuine." [Priceline, PR97744, paragraph 8].
[43] It is important to see however, that the genuineness of operational reasons, if established, do not necessarily render a particular termination unchallengeable on the grounds of it being harsh, unjust or unreasonable. This is because the employment of the employee in question must have been terminated for such a reason (or for reasons which include such reasons). It will be recalled that s.643(8) proscribes the making of a s.643(1)(a) application only if genuine operational reasons, or reasons which include such reasons, were the reason for the employee's employment being terminated. Where the Full Bench in Priceline says at paragraph 9, "The question ultimately is whether the Commission is satisfied, on the evidence and material presented to it by the parties, that there were genuine operational reasons" the task described is the consideration not only of the genuineness of the operational reasons as affecting or motivating an organisation generally, but as providing the real reason for which the employment in question, that is, the employment of the applicant, was terminated (s.643(8)).
[44] In coming to an understanding of the reasons or reasons for an employee's termination the Full Bench in Priceline directs one's attention to the reasons given by the person who made the decision to terminate. In this case that person is agreed to be Dr Johnson. I have accepted that this is so, semantics aside, not merely because the parties have agreed to this affect - but because it seems clear that Dr Johnson was in a meaningful sense the maker of the decision, being fundamentally involved in the development of the new direction for CTFT, its advice to employees and, later, in advising Dr Stannard of its effect upon his employment. Dr Johnson's personal role appears to have been decisive and not perfunctory. I have concluded that it was entirely within Dr Johnsons' province to accept or not, to adjust or defer the views put to him by the CTFT team.
[45] That the evidence of the decision maker is fundamental is also evident from the decision of the Full Bench in Boeing Australia Limited v B Acworth [2007 AIRCFB 730, 3 September 2007, PR978098] per Giudice J, Harrison SDP and Hoffman C (Acworth). The Acworth Full Bench, in acknowledging Priceline, said at paragraph 7, "in considering whether a termination was for genuine operational reasons the employer's reasons for dismissal are the critical consideration" and, at paragraph 6, "In a forensic sense reasons relied on by the employer might not be genuine because they were not real reasons for the termination…" (emphasis mine).
[46] In considering the evidence of the decision maker in Acworth (a Mr Robinson) the Full Bench reflect not only on its criticality as establishing the reason for termination, but also as being the basis against which other contentions or potential findings might be measured and considered. Included in the latter category are observations which, relevant to the present case, relate to the bases upon which the Commission might infer that there was some reason, other than a genuine operational reason, which reason was the reason for terminating Mr Acworth. The Bench said, in considering a reassignment that had been offered by Mr Robinson as decision maker, and declined by Mr Acworth:
"It can be seen that the Senior Deputy President ultimately made no finding on the appropriateness of the reassignment. That may be significant because a finding that the reassignment was inappropriate might have undermined the credibility of Mr Robinson's evidence. In particular it might have grounded an inference that the reassignment was a sham and that there was some other reason for terminating Mr Acworth's employment. In the absence of any such finding, however, Mr Robinson's evidence should have been accepted. It is also significant that Mr Acworth's counsel conceded on appeal that the reassignment which Mr Acworth rejected was nevertheless an appropriate one. The concession was made in the course of a submission with which we now deal.
Counsel for Mr Acworth contended before us that there was no genuine operational reason for the termination because there was work for Mr Acworth to do within the Boeing structure - namely the work to which Boeing wished to reassign him. As we have just indicated this contention involved a concession that the reassignment was an appropriate one. In the circumstances, it was contended, the termination flowed simply from Mr Acworth's intransigence. The nub of the submission was that it would be artificial to treat the termination as based on a structural reason when in fact there was work for him to do but that Mr Acworth would not agree to do it.
This contention ignores Mr Robinson's evidence as to Boeing's reasons for deciding to terminate the employment. Boeing might have decided to terminate the employment solely because of Mr Acworth's refusal to be reassigned but, on the evidence, its reasons were not so limited. The submission invites us to ignore that evidence without advancing any reason for doing so. As we have already indicated, that evidence should have been accepted." [Acworth, paragraphs 25-27] (emphasis mine).
[47] It is clear that the evidence of the decision maker in Acworth was central in permitting the Full Bench to forensically determine what was the real reason (in that case singular) for the employee's termination. The equivalent evidence and its corollary, the capacity to weigh competing evidence, is denied the Commission in this case.
[48] In accepting or rejecting the evidence of the decision maker in an objection to jurisdiction based on genuine operational reasons as being the reason or amongst the reasons for the employee's termination, the Commission will put any evidentiary challenge made by the applicant to the test. In the absence of such evidence from the employer, either from the decision maker, or responsive to the evidentiary case put on by the applicant, there is likely to remain only assertion as to cause and affect - to adopt the phrase found in Acworth.
[49] While it is true that there is detailed evidence in this case from the Deputy Chief as to the bases for CTFT's need to reorganise itself, there is no direct evidence from the decision maker of the reason for Dr Stannard's termination.
[50] Because there is no evidence from Dr Johnson it cannot be evaluated 'in the usual way' against that averred to in detail by Dr Stannard as to his work, his relevant experiences with Dr Lucas and the Human Resource Department officials all said to bear directly upon the termination.
[51] Of course full weight should be given to Dr Humphries' evidence. I have sought to do this and found him to be an impressive witness, presenting conscientiously in his giving of evidence and yet not responsive to vital portions of the case brought in reply to that of the respondent.
[52] If the Commission were to accept Dr Humphries as a proxy for the decision maker or as a co-decision maker, it is of central importance that no response was made in his evidence in chief to the case put by Dr Stannard, that the real reason was not a genuine operational one and, rather, that it was founded on other specified grounds. And the case made by Dr Stannard was a stark one. It had been detailed (including Dr Stannard's statement to which were attached the notes written on 9 August 2008 of the preceding day's conversation between Drs Lucas and Stannard in which were intermingled performance, professional development and the family responsibilities/discrimination issue previously raised by Dr Stannard) in the material filed consistent with the Commission's directions on 25 February 2008 and received on 27 February 2008. No part of the CSIRO case dealt with the essential features of Dr Stannard's evidence in these regards - other than Dr Humphries' evidence that the advertised mechatronics engineer position called for lower order skills than those such as original thought, design innovation and complex novel algorithm development which were required of, and delivered by, Dr Stannard.
[53] If Dr Humphries' was the decision maker, or co-decision maker, his response to the claims of Dr Stannard would, to adopt the Priceline descriptor, be 'pivotal'. The CSIRO case and the evidence of Dr Humphries put nothing as to the involvement in an ex-officio way of Dr Lucas in the management review team. No other members of the management review team which put recommendations to Dr Johnson were called. Dr Humphries gave no evidence that he was present when the decision was taken by Dr Johnson, or that he, Dr Humphries, as review team member and Deputy Chief to Dr Johnson had discussed the basis for Dr Stannard's preferment for redundancy with Dr Johnson. Notwithstanding that the application from the date of original filing relied on s.659 in addition to s.643, Ms Allars submitted that the CSIRO was unaware of "the unlawful aspect and the details surrounding that until last week" and that the respondent was not in a position to have further witnesses attend [Transcript PN438]. No application for an adjournment was made.
[54] Focussing on the reasons the decision maker had for terminating an employee's employment on the ground of operational reasons and assessing the credibility of evidence given by the decision maker, when it is put in issue, was necessary in this case given the evidence put by Dr Stannard. Dr Stannard's evidence impeached the basis of Dr Johnson's decision, both on the discriminatory ground, the various arguments as to the breadth of his experience and skills and their application beyond the confines of wool, their misdescription by CSIRO, and the claim that by virtue of the recruitment of the mechatronics engineer his position was not redundant.
[55] As the only evidence of Dr Johnson's reasons for terminating Dr Stannard's employment arose from Dr Stannard's narrative, there has been no capacity for the Commission to, forensically or otherwise, "…focus on the reasons, if any, advanced by the decision maker" [Priceline, paragraph 14]. Vitally, the inability for the Commission to evaluate any CSIRO evidence responsive to the challenge put to it by Dr Stannard's case, has meant the Commission is unable to test the evidentiary conflict in the usual way. The fact that CSIRO did not respond to Dr Stannard's case by challenging his evidence, by putting the events and interpretations of events and conversations specified by Dr Stannard to Dr Humphries, or in cross-examining Dr Stannard or in submissions in reply, renders it not possible for the Commission to safely arrive at the necessary state of satisfaction required by s.649(2).
[56] If one assumes for the sake of the argument that Dr Stannard's evidence is sound and that, in truth, his employment was terminated by Dr Lucas' nomination of the applicant by reason of the discriminatory antipathy alleged and that in relying on the s.643(8) objection his employer is able to avoid its real reason being tested by not calling the decision maker and by not being responsive to the case put against it, an important part of the employment protections of the Act would be defeated. On this hypothesis it is clear that there is a sound basis in such cases for requiring the evidentiary cases to be made out and responsive to the case brought in reply. In this case silence cannot be an effective answer - not only in declining to bring witnesses in reply but in not challenging the case put by Dr Stannard when he gave evidence or by putting its essential features to Dr Humphries.
[57] While I have not come to the view expressed subjunctively at the outset of the preceding paragraph, I cannot, on the evidence, and for the reasons given above, be satisfied as to the genuineness of the reasons as required for an order to issue pursuant to s.649(2)(b). Accordingly the objection to jurisdiction must be dismissed. An order to that effect appears below and the file remitted for conciliation.
[58] I also choose to add that the portions of Dr Stannard's statement which provide unflattering commentary in describing the appearance and reactions of CSIRO officers to suggest state of mind, including Dr Johnson, the Human Resources staff and Dr Lucas, (variously, that someone looked "uneasy", "very concerned", "worried", "agitated", "uncomfortable", "very nervous and uneasy", "still obviously uneasy") have played no part in the determination of the jurisdictional objection.
N Campbell, of counsel, by leave for Dr Stannard.
Printed by authority of the Commonwealth Government Printer
W Stannard
CSIRO [2008] AIRC 456;