Worker was verbally informed of the change and given a termination letter, but not provided written information for discussion, as required
An electronics engineer with just over a year of service challenged his dismissal after his employer advised that his role was no longer required following an internal operational restructure of research and development resources.
The worker contended that no redeployment options were provided to him, and there was no consultation about the redundancy, meaning his dismissal was unfair.
The employer maintained the worker's role was genuinely redundant because the products he had been working on had moved into production, significantly reducing the need for further development engineering work in Australia.
The worker also raised concerns about a connection between his dismissal and feedback he had previously given about a bullying culture in the office.
Termination meeting and employer's position
A meeting was held between the worker, the employer's global chief technology officer (CTO) and the worker's line manager, the head of engineering and design.
At this meeting, the CTO explained that the employer had undertaken an internal operational restructure, and the worker's role as an electronics engineer in Melbourne was no longer required because the products he had been working on had moved into production. The worker was advised that ongoing support for those products would be handled by the employer's existing engineering teams located overseas.
The CTO's evidence was that while redeployment opportunities for the worker were considered, there were no suitable alternative roles that matched the worker's skills.
The termination letter referred to the outcome of a recent review by the employer of its operational requirements and advised that the position of electronics engineer was no longer needed. The letter stated this decision was not a reflection of the worker's performance.
The CTO gave evidence that the worker contributed to multiple engineering projects, several of which had reached the end of their design phase and were transitioning into production in the employer's factory in China.
As these transitions occurred, the demand for local electronic engineering work of the kind performed by the worker naturally declined, demonstrated by the worker's decreased workload. The employer conducted a global resource and budget review, and as an outcome, a decision was made that the role of electronics engineer in Australia was no longer required, based entirely on commercial and operational grounds.
Worker's contentions and bullying concerns
The worker said thatno redeployment optionswere provided to him, nor was there any consultation. The worker said that the employer requires the continuous involvement of the electronics engineer for firmware and hardware development.
The worker said that shortly after his dismissal, the employer advertised for the role of electronics service engineer in Poland, which in effect was his role being readvertised, or alternatively, a role to which he should have been redeployed.
The worker said that there was a connection between his dismissal and the concerns he had raised with the employer about a bullying culture in the office. The worker said that he had twice given honest feedback to the CTO about this, including in a long and detailed email several months prior to his rolebeing made redundant.
There was no evidence before the Commission that drew a causative link between the redundancy and the worker's allegation that it was targeted, or in retaliation for raising bullying concerns during his employment.
The CTO addressed the bullying concerns raised by the worker on the same day they were raised, put in place arrangements pending his return from overseas, invited a direct discussion about the concerns, and stated he appreciated the worker raising the concern, as no one should feel disrespected or bullied at work.
In the worker's application to the Commission, he stated that after the CTO's correspondence, the bullying conduct ceased, he saw behavioural changes in the attitudes of the relevant persons named, and those persons were thereafter not rude to him.
The Commissioner accepted the CTO's evidence that the employer treated this issue as having been resolved, and it was not connected with the worker's dismissal.
Findings on job no longer required
The evidence before the Commission did not support a finding that the role of electronics engineer in Australia was still required, as contended by the worker. The Commissioner accepted the evidence of the CTO about the operational reasons for the employer's decision.
The CTO was a credible witness, and the reasons he provided for the worker's redundancy were rational and convincing.
The employer restructured its relevant operations to improve efficiency and reduce duplication. As part of this, engineering responsibilities were redistributed across the employer's international offices such that the worker's job no longer exists.
The evidence demonstrated the reduction in the worker's workload, including that his last commit, being the submission of a new version of code, was several months prior, and there had been no additions to this firmware on the employer's system since.
TheCommissioner was satisfiedthat the employer no longer required the worker's job to be performed in Melbourne and that his job was not being performed by anyone else.
The employer's headcount in Australia had remained unchanged since the worker's redundancy, and specifically, the role of electronics engineer had not been filled. The Commissioner did not consider there to have been an ulterior motive for the worker's dismissal.
Consultation obligation not met
The Commissioner agreed that the professional employees award applied to the worker in his role as an experienced engineer with substantial professional experience. The consequence was that the award applied to the worker in his employment.
Consultation about a major workplace change is addressed in the award, requiring an employer to give notice to and engage in discussions with affected employees if it has made a definite decision to make major changes likely to have significant effects on employees.
An employer must give all relevant information about the changes in writing to affected employees for the purposes of discussion. The worker attended a meeting with the employer where he was verbally informed of the change and its effect on his role. He was then provided with a copy of the termination letter.
There was no material before the Commission demonstrating that the worker received, in writing, all relevant information about the change as required by the award. The only available conclusion on the evidence was that the worker was not provided with information about these matters in writing for the purposes of discussion.
The evidence did not support a finding that the employer complied with its award obligation to consult about the redundancy, and accordingly, the dismissal was not a case of genuine redundancy.
Redeployment and compensation
The worker contended that the employer did not adequately consider redeployment opportunities for him and referred to an advertised role of electronics service engineer in Poland.
The relevant evidence was that the role did not exist at the time the worker's employment ceased, was based on the production line on site in Poland, could not be performed remotely, the worker could not speak Polish, and the salary was considerably less than the worker's previous salary.
The Commissioner was satisfied that the position was not a reasonable redeployment opportunity for the worker.
The Commissioner was satisfied that the employer's failure to consult with the worker as required by the award rendered the dismissal unfair within the meaning of the Act. This was notwithstanding the valid reason for the worker's dismissal and the appropriate weight given to this reason.
As a remedy, the Commissioner found that reinstatement was inappropriate and that it was not sought by the worker.
Had the employer complied with its award obligation to consult with the worker about the redundancy, it would have taken, in the Commissioner's view, a period of one week.
Accordingly, the remuneration that the worker would have received if not dismissed without consultation would have been a further one week of remuneration.
The Commissioner ordered that the employer pay the worker the sum of $2,500 gross, less taxation as required by law, plus 12% superannuation.
https://www.hcamag.com/au/specialisation/employment-law/engineer-claims-unfair-dismissal-after-role-made-redundant-due-to-restructure/557336
