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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT02144
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT IVES
C2002/750
FINANCE SECTOR UNION OF AUSTRALIA -
COMMONWEALTH BANK OFFICERS SECTION
VICTORIAN BRANCH
and
AXA AUSTRALIA
Application under section 170LW of the Act
for settlement of dispute re the non-appointment
of Alec Kahn to a position of Change Manager
which has resulted in his retrenchment as of 18/01/02
MELBOURNE
10.01 AM, TUESDAY, 22 JANUARY 2002
PN1
MS H. LEWIS: I appear on behalf of the Finance Sector Union of Australia. Also appearing with me is MR P. SCHRODER from the Finance Sector Union and MR A. KAHN who is the member whose grievance is subject to this proceeding.
PN2
MR B. MOORE: I seek leave to appear as solicitor for AXA Australia Limited in these proceedings.
PN3
THE DEPUTY PRESIDENT: Thank you, Mr Moore. Do you have any - - -
PN4
MS LEWIS: Your Honour, I never see any reason for solicitors to appear in what is ostensibly a lay advocate's jurisdiction. However, in this specific case, I don't see that there are any special circumstances which necessitate AXA being represented by counsel and therefore we oppose leave for Mr Moore to appear.
PN5
MR MOORE: If the Commission pleases, this matter purports to be an application under clause 33 of the AXA Australia Enterprise Agreement, seeking to raise before the Commission a grievance or dispute covered by that clause. I am seeking leave to appear on the basis that AXA Australia wishes to submit that the clause does not apply to the circumstances dealt with by the matters which will be gone into in some more detail.
PN6
It, in our submission, represents an application by a disappointed job applicant rather than an employee raising a dispute or grievance in respect of matters correctly covered by clause 33 and that it covers a matter really to do with the termination of employment rather than the non-appointment to another position. We wish to submit that the Commission does not have power to proceed to deal with the matter in this way pursuant to this application and we would submit those are the special circumstances - or they are amongst the special circumstances which warrant granting leave to a solicitor to appear.
PN7
In addition to that, it is a novel application generally in that, so far as I am instructed, this is the first time that this procedure has been used - that is the clause 33 procedure - has been attempted to be used in relation to a matter which arises out of restructuring of a number of jobs, the abolition of some positions, the creation of other positions, and it is being sought to be used to challenge the termination of Mr Kahn which arises from the redundancy of his position and the subsequent failure to find any suitable position to which he may be redeployed.
PN8
So it is a matter which is unusual in the sense that it is not the ordinary sort of grievance that would be expected to be dealt with in accordance with any grievance of dispute settlement procedure under an agreement. It is in reality a matter concerning termination of employment and we will be submitting that if that is the case, then the Commission has no power, even though there may be powers under other provisions of the Act. Those constitute the grounds on which we submit that leave to appear should be granted.
PN9
THE DEPUTY PRESIDENT: Thank you, Mr Moore.
PN10
MS LEWIS: Your Honour, it is nt unusual for an employer in response to any application made by a union, including the FSU, to challenge the jurisdiction of the Commission if it suits their purpose. People who work for the company who are within the human resource function or, in AXAs language, the people shared services function, it is more than within the scope of their ability to represent the company on those matters and I would contend that this case is no different.
PN11
It is not a novel application purely because it is the first one that we have lodged in the instance of AXA under section 170LW of the Act to activate the dispute settlement clause. My submission does go to the matter of jurisdiction because AXA had alerted us to the fact that they had problems with the jurisdiction. This is a straightforward dispute as detailed in our R47 notice. Mr Kahn had triggered the dispute settlement process under the enterprise agreement back on 17 December, I think it is off the top of my head, when he issued formal notification that he was lodging a grievance under the dispute settlement procedures of the enterprise agreement and he notified that in writing by e-mail to his line manager as per step one of the dispute settlement process of the enterprise agreement.
PN12
He has followed the steps of that process under the enterprise agreement to the point where it hadn't been resolved. He sought the assistance of the union in escalating the matter to the all-but-last process, that is by raising it directly with human resources or the people shared services function, and after a couple of meetings there it still hadn't been resolved. It was clear that the internal dispute settlement processes as provided for under the enterprise agreement had been exhausted. The process then provides that the matter may be referred to the Commission for hearing and determination and that is the step that the union has taken.
PN13
The trigger under the Act is section 170LW and by submitting an R47. That is what we have done. The matter is subject to the dispute settlement process, the Commission does have the power to deal with the matter under section 170LW of the Act. Again I would contend that this is more than adequately within the scope of the professional HR people within AXA to represent the company on behalf of.
PN14
THE DEPUTY PRESIDENT: Thank you, Ms Lewis. I intend to grant leave, so we will go forward on that basis. Thank you.
PN15
MR MOORE: Thank you.
PN16
THE DEPUTY PRESIDENT: Ms Lewis.
PN17
MR MOORE: I am sorry to interrupt, but there are a couple of matters which might assist in terms of the procedure. Whilst first of all the Commission did convene this matter as a hearing and conference, and I would seek some indication from the Commission as to whether it is proposed that there be any form of conference in relation to this proceeding.
PN18
The second issue is that we would submit that the appropriate course in respect of the objection to jurisdiction or objection to power would be to provide a timetable for any necessary evidence and submissions to be put before the Commission in writing so that the matters can be properly and fully canvassed. It is an important question. I don't envisage a long timetable for that to be done, but would suggest that that may be an appropriate course so as to bring the matter to as fully argued and fully submitted application as may be dealt with rather than having it dealt with, in a sense, on the run.
PN19
Now, there may be material which I have not had an opportunity as yet to investigate concerning the history of the making of the particular clause, whether there were negotiations and discussions about the way in which that clause was intended to operate. If one goes to the clause, it is not at all self-evident, if I can put it that way, sir, as to what type of disputes and grievances are intended to be covered. It is subject to an exception relating to termination of employment not being covered by the dispute settlement procedure and we would submit that it is appropriate to establish a timetable for submissions and any - and that way to get a brief hearing at the conclusion of those submissions. If the Commission pleases.
PN20
THE DEPUTY PRESIDENT: Thanks, Mr Moore. Well, that may be the case, but I am of a mind actually to hear some opening submissions from both of the parties and perhaps on the basis of that spend a little bit of time in conference to see whether there is anywhere at all we can go with this by way of conciliation. It may be that that is not the case and it may be that the suggestions you make, Mr Moore, are appropriate, but in the first instance, I would prefer to hear some submissions on the record by the parties.
PN21
MR MOORE: If the Commission pleases.
PN22
THE DEPUTY PRESIDENT: Ms Lewis.
PN23
MS LEWIS: If the Commission pleases. As indicated, this is an application made under section 170LW of the Act to activate the dispute settlement procedure provided for at clause 33 of the AXA Australia Enterprise Agreement 2000 in relation to a dispute arising from AXAs non-appointment of Alec Kahn to a position of Change Manager, a decision which resulted in Mr Kahn's retrenchment on Friday of last week, and we are seeking for the Commission to hear and determine this matter today.
PN24
PN25
MS LEWIS: Your Honour, this is a letter dated 17 January from me addressed to Mr Veale at AXA Australia and in that letter we required that:
PN26
AXA observe clause 33.5 of the agreement by allowing Alec to continue to work with his retrenchment held in abeyance pending the hearing and determination of this matter by the Commission.
PN27
PN28
MS LEWIS: That letter dated 18 January addressed to me by Mr Veale from AXA and that letter advised, and I refer to the second paragraph, halfway in, AXA:
PN29
...does not consider that there is any dispute or grievance which is capable of being subject to the dispute settlement procedure set out in clause 33 of the AXA Australia enterprise Agreement 2000.
PN30
And it goes on to the next paragraph, halfway down:
PN31
...that the Commission has no jurisdiction to deal with the notice -
PN32
and it concludes over the page that AXA therefore:
PN33
...does not consider it necessary or appropriate to comply with your request.
PN34
Consequently, Alec finished up at the close of business on Friday which was 18 January. Your Honour, before I move into the body of my submission, I would like to address those assertions of AXAs regarding jurisdiction as I have just quoted from the letter and also raised by Mr Moore earlier in these proceedings.
PN35
The dispute settlement procedure at clause 33 of the enterprise agreement provides that:
PN36
With the exception of any dismissal, any grievance or dispute arising within AXA Australia will be settled in the following manner.
PN37
And then it goes on to detail the steps to be taken. As detailed in our notice, on 17 December Alec Kahn formally raised a grievance with his line manager under the disputes procedure of the enterprise agreement by way of an e-mail and I would like to hand up a copy.
EXHIBIT #A3 E-MAIL SENT BY ALEC KAHN TO KEVIN O'SHEA ON 17/12/2001
PN38
MS LEWIS: Your Honour, this document is a copy of the e-mail sent by Alec Kahn to his line manager, Kevin O'Shea, on - this is printed off on 18 December. You will note in the opening paragraph Alec states:
PN39
I wish to formally raise a grievance with you under the disputes resolution procedure of the enterprise agreement ...(reads)... Any one of them is probably sufficient on its own to overturn the decision.
PN40
He then goes on to detail those concerns and the grievance. He subsequently met with his line manager, his manager's manager, and a people function consultant, and as I mentioned, people function is AXAs terminology for HR. The meeting was held to discuss the matter in accordance with the disputes procedure. The matter wasn't resolved at that meeting. As his manager's manager, Mr Croucher, had already indicated his support of the decision of the manager and that he would stand by that decision to not appoint Alec, Alec advised him that rather than seek a separate meeting with him to again discuss the matter, that he was escalating the disputes process to the next step under the agreement by requesting the FSU to pursue the matter with HR, and he communicated that to both Kevin O'Shea and Paul Croucher by e-mail on 24 December. I would again like to hand up a copy of that document.
EXHIBIT #A4 E-MAIL SENT TO MR O'SHEA AND MR CROUCHER FROM MR KAHN ON 24/12/2001
PN41
MS LEWIS: Your Honour, 24 December of course was Christmas Eve. You will note towards the end of the second paragraph of the e-mail that Alec advises that I had not been able to arrange an appointment with anyone in HR before the week starting 7 January which explains a bit of a gap in the timetable. There were two subsequent meetings between the FSU and HR and the matter was still not resolved and the internal procedures had been exhausted, and that was made clear at the last meeting which was held on Thursday of last week. That left the final step available under clause 33 which allows at point 4 that:
PN42
If the matter is not settled, it will be submitted to the Australian Industrial Relations Commission or other agreed mediator whose decision will be final.
PN43
THE DEPUTY PRESIDENT: Ms Lewis, can I just interrupt you there. Can you just tell me how you interpret that point 4 because it is a trifle confusing to me to tell you the truth.
PN44
MS LEWIS: It will be submitted so it can be referred to the Commission to be determined. A number of dispute settlement clauses - there are any number of different wordings. There tend to be three particular types of wording. Some say refer to the Commission for conciliation; some say to the Commission for conciliation and/or arbitration; and some say refer to the Commission for hearing and determination which in our view gives the power to the Commission to both conciliate and/or arbitrate the matter.
PN45
THE DEPUTY PRESIDENT: Yes, I think what is the, sort of, little bit of ambiguity from my point of view at least as I look at it is in respect of the words "or other agreed mediator". I mean, if there was a comma after "Commission" and another comma after "mediator", that would tend to have the effect of making the sentence into a sentence which read:
PN46
If the matter is not settled, it will be submitted to the Australian Industrial Relations Commission -
PN47
excise those words -
PN48
whose decision will be final.
PN49
The absence of those commas could be suggestive that the mediation is a matter of agreement regardless of whether it is with a mediator or with the Commission.
PN50
MS LEWIS: That is not the intention. I think it is, your Honour, with all due respect to the drafters of the agreement - and I can say this with some impunity given that I was one of them - that this was rolled over from a previous agreement and I think it has a lot more to do with drafting than with intent. Certainly the established intent - it is our clear view that there really should be commas to say that it can be referred outside of AXA to be heard and determined by someone outside of AXA. Now, that can either be the Commission or it can be another independent mediator or arbitrator that the parties may agree to. In this instance we have treated it and we have treated it previously to mean that it goes to the - to go other than to the Commission is where the agreement is needed.
PN51
THE DEPUTY PRESIDENT: That is right. So it is your contention that agreement applies only to the mediator rather than the Commission.
PN52
MS LEWIS: It is only a requirement that there be agreement for it - to have it referred to a mediator other than the Commission.
PN53
THE DEPUTY PRESIDENT: Thank you.
PN54
MS LEWIS: Right. Now, given that Alec's dispute wasn't about a dismissal, therefore it is capable of being subject to the dispute resolution procedure under the enterprise agreement. And although AXAs redeployment and redundancy procedures are dealt with in greater detail in their summary of Redeployment and Redundancy Policy AXA Australia 2001, a policy document rather than an industrial instrument, the R and R procedures are also included in the enterprise agreement at clause 21 under the heading of Organisation Change. Now, I am assuming that your Honour does have a copy of the whole agreement?
PN55
THE DEPUTY PRESIDENT: Yes, I do.
PN56
MS LEWIS: Section 170LW of the Act provides that:
PN57
Procedures in a certified agreement for preventing and settling disputes between the employer and employees ...(reads)... (b) to appoint a Board of Reference as described in section 131 for the purpose of settling such dispute.
PN58
So that section fo the Act also gives the Commission jurisdiction in this matter. Your Honour, I would like to move on to the body of my submission to put it in the context so that it is made clear to you that rather than the disgruntled job applicant that Mr Moore would have you believe that Mr Kahn is or rather than - again rather than it appearing that we are trying to circumvent the unfair dismissal provisions because that is not what this is about, I would just like to paint a picture of what has actually happened.
PN59
Alec Kahn is 50 years old. He holds a Bachelor of Science with Honours and a PhD in Mathematics. He had worked as an I4, which is a job grading, I4 systems programmer or analyst in AXAs Infrastructure Services Group for nearly 14 years and his annual salary was $68,342. During that time with AXA his annual performance appraisals have all been either very good or exceeded or good and effective. In the past five years he has had three exceeded and two effective appraisal ratings overall. On his last appraisal his technical and professional competencies were all rated as effective or better.
PN60
Your Honour, we believe that the processes followed by AXA regarding Alec Kahn were flawed and we believe it is necessary to address the processed followed which led to the lodgment of the grievance by Alec originally and then consequently the notice to activate the disputes process here today.
PN61
On about 3 September last year, the Infrastructure Services Manager, Paul Croucher, advised staff of structural changes to be made and the restructure included a reduction in the number of positions, some rejigging of the roles into new roles and it was going to result in an overall reduction in the number of staff of Alec's team. They were advised that the final structure was planned to be of one position of I5, which is a job grade higher than Alec, and one I4 position, which is his job grade, and that expressions of interest would be called for a little later on down the track.
PN62
On 15 November, Alec and the two other employees affected by the restructure in that area received a memo from Kevin O'Shea, the Manager of Product Portfolio Application Break/Fix - a very long title - regarding the process to be taken with the two new change management roles, and I would like to hand up a copy of that memo.
PN63
MS LEWIS: So in this memo Mr O'Shea advises staff in the affected area and the management team of the processes to be followed as a result of some queries being raised in the area. He advises at point 5 that:
PN64
Following acceptance, unsuccessful applicants, where their current roles no longer exist, will be advised of the situation and will be enter redeployment.
PN65
In fact, because these new roles had in fact replaced existing roles, although the formal declaration of redundancy hadn't been made, the people in the area who were having expressions of interest sought from them, were in fact expressing an interest in being considered for a job as a redeployment opportunity.
PN66
Alec expressed an interest for both the I5 position, the Change Management Operations Leader, and the I4 position of Change Management Analyst, and both of the other affected staff applied for the I5 role, but Alec was the only one to apply for the I4. I would like to hand up a copy of the expression of interest application submitted by Alec.
EXHIBIT #A6 EXPRESSION OF INTEREST APPLICATION SUBMITTED BY MR KAHN
PN67
MS LEWIS: Your Honour, some companies when they ask for an expression of interest to be made in a job, it is a memo or a note indicating just that or attaching a CV. In AXA the expression of interest application form is a pro forma which, as you will note from the document that I have handed up, is quite detailed and includes personal details, career history, a career summary of specific achievements, key competency summary including technical, professional and leadership competencies, objectives for the first 12 months in the role if appointed, a list of referees and any other additional information.
PN68
Alec was subsequently interviewed for both positions and was advised shortly after that he was not successful for either position. David Efron was appointed to the I5 role. On 11 December Alec received a letter advising that Robin Flintoft had been appointed as his redeployment administrator, and I will hand up a copy of that document.
EXHIBIT #A7 LETTER RECEIVE BY MR KAHN ADVISING MR FLINTOFT APPOINTED AS REDEPLOYMENT ADMINISTRATOR
PN69
MS LEWIS: Alec was advised by Kevin O'Shea as a result of a direct question that the reason for his non-selection for the I4 role in particular was his lack of experience in the particular production change migration process in the new area, and that was the reason given for his non-selection, also confirmed in a letter - or a reference, if you like, written by Kevin O'Shea dated 14 December, and I will hand up a copy of that document.
EXHIBIT #A8 REFERENCE WRITTEN BY KEVIN O'SHEA DATED 14/12/2001
PN70
MS LEWIS: Dated 14 December and addressed to Whom It May Concern, signed by Kevin O'Shea, he advised in the third paragraph:
PN71
He has missed out on a position as a Change Management Analyst not due to any performance issues, but due to lack of experience with the particular production migration processes used in my area and suitability for such a task.
PN72
The beginning of that third paragraph also confirms that it was following a restructure which merged his team into the area he managed and his job has become redundant. Your Honour, Alec applied for the position because his job was being made redundant. The job was at his grading level and it was a job for which he was suited given his skills and experience. It was a chance to be transferred or redeployed into an ongoing role and to continue his employment with AXA. His non-appointment to that position meant that he now had to find another redeployment opportunity or be retrenched.
PN73
I mentioned earlier that Robin Flintoft had been appointed as administrator for Alec's redeployment and he was the person to liaise with Alec about redeployment opportunities, to provide any advice about the redeployment process, etcetera. He told Alec that he would look for job opportunities, but that apart from a couple of business analyst positions, for which he wasn't qualified, and a couple of lower graded computer jobs, there wasn't really anything around because there was a recruitment freeze on, and a recruitment freeze on IT jobs specifically.
PN74
However, shortly after, Alec became aware that the position to which he hadn't been appointed had been advertised externally to the company with slightly different skill requirements. I would like to hand up now two documents. One is a copy of the internal job requirements or job description, and second is a copy of an external ad.
EXHIBIT #A9 COPY OF INTERNAL JOB DESCRIPTION
EXHIBIT #A10 COPY OF EXTERNAL ADVERTISEMENT
[10.30am]
PN75
MS LEWIS: The internal job advertisement or job requirements document for the role had the specific technical requirements, and I quote from the heading specific technical requirements on the first page of that document about half way down, two-thirds down.
PN76
Specific technical requirements. Expert knowledge of the AXA mainframe environment. Expert knowledge of mainframe ...(reads)... migration process for particular systems.
PN77
However, the requirement seems to be changed from experience, or extensive experience to:
PN78
Only a strong aptitude for dealing with source code change management and migration processes is also essential.
PN79
This is quoting from the external advertisement which is A10. And it goes on to say that:
PN80
Any experience with DB2 is highly regarded.
PN81
Now, that is at least one of the external job ads I understand it is usual for there to be several, and this ad was continued to be on-line for some time. Now, although Alec had created migration processes, the migration processes are the change processes or changes either legislative or cost changes or systems changes to make sure that people that are using the current and correct systems within the company, he had written migration processes but he did lack experience in the specific processes used in Kevin O'Shea's area.
PN82
However, those processes are documented in a handbook which is a step by step guide for users and the author of that document, Jim Munro, has estimated that it would take Alec or most other people with his experience, two to three months to pick up most of those processes and then about six months to pick up the more unusual rarer bits that do not crop up very often and, therefore, we don't have as much familiarity with them. At the meeting that Alec had with Kevin O'Shea, Paul Croucher and Alan Hoyle, that is his manager, his manager's manager and an HR representative on 21 December to discuss the grievance.
PN83
The original reason that was offered for his non selection, or his unsuitability for the position was expanded to include a few other areas. And these were, communication with clients; innovativeness; adaptability; following a process; and team work. And I should point out at this stage, so that the next little bit makes sense to you, your Honour, that AXA has an annual performance appraisal system based on how an employee measures up to specific competencies in category groupings of professional, technical and leadership.
PN84
PN85
MS LEWIS: Your Honour, you will note that there is a list of competencies under each of those three headings of professional, leadership and technical. There is a standard required and that is in the column, role description levels, so C or B. And then there is a score of 1 to 5. 1 being, unsatisfactory; 2 being, needs improvement; 3 effective, in which the employee clearly meets the majority of behaviour expectations for the competency; 4 exceeds, meets all and exceeds some of the behaviour expectations; and 5 is exceptional.
PN86
The competencies required of the change management analyst job are set out at pages 4, 5 and 6 of the job requirements document which is A9. So half way down page 4 is the heading of knowledge and skills, it then goes on to detail the professional, over the page, leadership and over the page again, the technical competencies required in this job. And all AXA job requirement documents have those competencies stated up front. Now, to address the issues that were raised by AXA at the meeting to discuss Alec's grievance, first of all addressing the issue of communication with clients as being a deficiency or an unsatisfactory area.
PN87
The change analyst job required a B, a basic score for client orientation. Alec's role that he was already in had a higher requirement of C, proficient, for which he scored 4, which is an exceeding, so he exceeded the requirement. For the competencies of establishing credibility and oral communication, which are part of the communication requirement, both positions required C, which Alec had been graded as exceeding. For written communication, both the job that he had applied for and the job he was already in, required C, and he had scored 5, which is exceptional, for a lower requirement of B.
PN88
For the second of Alec's alleged deficiencies, both jobs require the same level for which Alec had been scored, proficient. On the third one of adaptability, for each of the components or competencies in adaptability, both jobs required the same level or the new job required lower than had been required in Alec's previous role and he had scored either efficient or innovative or exceeds for initiative and problem solving. On the fourth area, following the process, although this was not an explicit competency in the job requirement for the job, it is a related competency.
PN89
The requirement for quality control for the new job was lower than required in Alec's role, for which he had scored as proficient. The other competency in this group, planning and organisation, has the same requirement as Alec's role for which he had also scored as proficient. The fifth one, co-operation, Alec's score exceeded, or he scored as exceeded for the same competency. On the sixth one, team work, Alec scored proficient for higher competency than the new role required.
PN90
Now, when Alec went through the specific criteria against his competencies, based on his previous report, his previous appraisal, Kevin O'Shea commented that they, that is the competency appraisal, are the assessments of another manager not his, and that his impression of Alec is different than that and while such a statement might be reasonable in some circumstances, it was not in this case. Mr O'Shea had minimal contact, direct contact with Alec.
PN91
His contact with the team in which Alec had worked was through the team leader, David Efron, so he did not have any first hand knowledge or experience of Alec's work or his skills or experience. His knowledge was via David Efron, the team leader. And David Efron had been urging that Alec be appointed to the change management analyst role because he deemed him suitable. The other two members of the selection panel, Alan Hoyle and Paul Bennington also had little, if any, first hand knowledge of Alec's work.
PN92
At the second of the meetings held between the FSU and AXA to discuss Alec's grievance, which was held on 17 January, the same characteristics or deficiencies were reiterated as the reasons for Alec's unsuitability for the change management analyst role, but they were expressed slightly differently. The comment was made that Alec has a strong liking for problem resolution but there will be less emphasis on this in the new role, this is contrary to the competency for problem solving which says there is a requirement.
PN93
The issue of structured process routines, a matter I raised earlier in my submission, point to the existence of a step by step manual which Alec and any other incumbent would have ready access to, to help them through that. The comment was made that Alec is not a change agent, or at least was not seen in that light at the interview. And once again this ignores Alex's competency appraisal where he was scored as proficient for innovativeness.
PN94
That the job requirements incumbent to interface, the job requires the incumbent to interface with various parts of the business was another comment, that Alec works in isolation. Now, it is true that Alec worked in a small team of three, but his job was to talk to people and to help them with their change management problems. And once again that this comment ignores his competency appraisal in which he was rated as better than proficient for the competencies of co-operation, customer orientation and empathy.
PN95
Alec's last competency appraisal was a glowing report. His team leader, David Efron, considered him suitable for appointment to the role, yet the original selection panel of Mr O'Shea, Mr Bennington and Mr Hoyle, and those who subsequently reviewed, and I use that term exceptionally loosely, the decision of that selection panel, as a result of Alec's grievance, Mr Croucher, Ms Heathcote and Mr Veale from HR, none of whom had first hand knowledge or experience of his work, his competencies or his skills, yet they all upheld the view that his competencies were deficient and that he was, therefore, unsuitable for appointment to the position.
PN96
Your Honour, as a direct result of that assessment Alec was retrenched with effect from the close of business last Friday, as was his colleague, Mark Paton, yet what of the redundancy and redeployment provisions of the enterprise agreement and those of AXAs R and R policy previously referred to. The enterprise agreement and AXAs policy both contain a number of principles concerning the effects of organisational change. And I would like to hand up a copy of the policy that I have referred to.
PN97
MS LEWIS: I would like first of all to refer to clause 21.2 of the enterprise agreement which states that:
PN98
AXA Australia is committed to avoiding compulsory retrenchments through taking advantage of natural attrition, planning of recruitment and redeployment wherever possible.
PN99
It goes on:
PN100
The filling of new and restructured roles will be on the basis of selecting the most suitable person for the position.
PN101
And again it goes on:
PN102
AXA Australia's first commitment is to redeployment of affected peopled including the provision of appropriate training.
PN103
I am sorry I did not pay attention to whether you found that position, your Honour.
PN104
THE DEPUTY PRESIDENT: No, I did, that is fine, Ms Lewis. Yes, that is fine.
PN105
MS LEWIS: There are a few more principles before it then moves on to 21.3, with the heading of redeployment. And again, I quote:
PN106
In the event an employee's position becomes redundant, AXA Australia will endeavour to redeploy the employee, including the provision of appropriate training.
PN107
I would now like to refer to the company's R and R policy at A12. At point 2, just a couple of pages in, it lists a number of key principles to apply during the process of redundancy which includes the second dot point under key principles:
PN108
Every effort will be made to redeploy people in to suitable roles.
PN109
And a number of these principles to which I have referred require further comment because they do not appear to have been applied in Alec Kahn's case. First of all, AXAs commitment to avoiding compulsory retrenchments through taking advantage of natural attrition etcetera. And its first commitment is being to redeploying people, including provision of training. I am paraphrasing two of the principles I have referred to previously.
PN110
Alec's was a compulsory retrenchment, he did not want to leave AXA. Whilst it is true that not all employees whose jobs are redundant can be redeployed, Alec's retrenchment could have been avoided. Instead there was no discussion about possible training in some of the areas a selection panel thought him unsuitable and the job that was advertised externally in the full knowledge that there was an internal applicant who would consequently be or subsequently be retrenched because there were no other redeployment opportunities.
PN111
And we understand that an outside applicant has been offered the position, but I am not aware that they have commenced yet. With regard to the principle that the filling of new and restructured positions will be on the basis of the most suitable person for the position, this is the next point I would like to pay attention to. It is obviously a principle to address the circumstance where there are a number of redeployees applying for the same position. This principle certainly appears to apply to the I5 position for which Alec, David Efron and Mark Paton all applied, and Mr Efron, who was already graded I5, was the successful applicant in that instance.
PN112
It also is obvious that the criteria about training was taken into account in Mr Efron's case too because there was some - the mandatory qualifications that he did not satisfy, but obviously they decided he had the right - decided that he had the aptitude to pick up on those areas when he was appointed. Now, the basis of the criterion of the best person, sorry the most suitable person being appointed to the position is that the most suitable applicant, particularly where there may be more than one, the criterion is not that the best possible applicant available if AXA casts a wide enough net externally, is the person to be appointed to the job.
PN113
You have had a restructure, people are displaced as a result of that restructure. The process says that where there is a restructure and new jobs are created all the jobs will be thrown open and that they can express an interest in them and be considered for them. It talks about avoiding compulsory retrenchment where possible. And yet, where they had an opportunity to appoint someone who was suitable, they chose to ignore that suitable person and go outside the company and appoint someone from outside who has the direct effect of displacing the redeployee.
PN114
So persons there is someone better that we can get if we cast a wide enough net outside the company is obviously the attitude that AXA adopted in this instance, regardless that they had a suitable applicant internally, they failed to appoint him. And their decision to not appoint him and to advertise externally was at a time where there were few job opportunities within AXA, for a number of reasons, but particularly in light of the supposed recruitment freeze on IT jobs that he had been told of by his redeployment administrator and also the lead up to Christmas where things go silly, or things are turned back to allow for the break and not much business takes place during that time.
PN115
Alec was not referred to any other job opportunities by AXA, which also raises the question as to whether every effort was made to redeploy Alec into a suitable position as required by the enterprise agreement. We believe that the enterprise agreement's redeployment redundancy principles have either been disregarded, overlooked, or at best reinterpreted by AXA, in such a way as to disadvantage Alec Kahn. Basically the process followed by AXA in regard to Alec was flawed.
PN116
Had the enterprise agreement required that the best possible applicant be appointed to the position, it would have stated it that simply and it would not have bothered including opportunities for redeployees to receive retraining or of taking steps to avoid compulsory retrenchments wherever possible, if the intention was to go to outside ad where whim took them. Your Honour, that concludes the body of my submission, but I would like to summarise by saying that we seek a finding that AXA Australia has failed to comply with the letter and the spirit of clause 21 of the enterprise agreement.
PN117
We also seek directions in the following terms. 1) that Alec Kahn be reinstated and appointed or redeployed into the position of change management analyst. And 2) that AXA - a direction that AXA make an application under section 170MD(6) of the Act to vary the enterprise agreement in order to remove the ambiguity in clause 21.2 as to the meaning of, the most suitable person for the position. In the event that your Honour does not decide to issue the directions that we are seeking I would ask to be able to make a further submission on possible outcomes for the matter. If it please the Commission.
PN118
THE DEPUTY PRESIDENT: Thank you, Ms Lewis. Just before you resume your seat, Ms Lewis, I just have another question for you about the disputes procedure. And it is the qualification right at the beginning where it says:
PN119
With the exception of any dismissal any grievance or dispute arising within AXA Australia will be settled in the following manner.
PN120
Now, ultimately we have a dismissal do we not?
PN121
MS LEWIS: Retrenchment which may be argued to be a termination of employment. But at the time of the dispute being triggered, the grievance being lodged with the company, there was no - the employment had not been severed and as I indicated at the outset of my submission we had intended - we had hoped to be able to bring this matter before you prior to him finishing up.
PN122
THE SENIOR DEPUTY PRESIDENT: Yes, I am aware of both of those points and what I was really looking for was how do you - again, it is an interpretation matter, how do you interpret that particular qualification; are you interpreting it on the basis that a termination based upon the grounds of redundancy is not a dismissal?
PN123
MS LEWIS: No, not at all, your Honour. I would make a couple of comments about the history of the dispute clauses in our industry and probably the wider workforce, with apologies for my lack of specific knowledge about the history of this one, in this regard anyway. A number of our awards or early agreements had separate dispute settlement processes for unfair dismissals and for other grievances and disputes. And the former, although the process for unfair dismissals really mirrored the provisions prevailing at the time under the Industrial Relations Act as it was then.
PN124
When we then simplified awards and of course that kind of dispute process came out of awards because it was a duplication of the statutory provision under the new Act, and it came out. But we also stopped putting them in enterprise agreements and only had a single disputes process. The reason that the exception has been put in, and it does not appear in many of our enterprise agreement dispute processes I should point out, I gather it was to just distinguish that this can deal with any dispute but not unfair dismissals because dismissals go to the Commission under the specific statutory provisions. So I think it was just a reminder that it is a catch-all with one exception.
PN125
THE DEPUTY PRESIDENT: Thank you, Ms Lewis. Look I am still of a mind to see how far we can get, if anywhere, in conference after I have heard from Mr Moore. And I am also cognisant of Mr Moore's previous request that there may be some necessity for more extensive submissions and that is something that I would like to canvas when we get into conference. I am further cognisant of Mr Kahn's circumstance which, if there has been some circumstances that have affected Mr Kahn that should not have occurred, then obviously he would like those to be redressed as expeditiously as possible.
PN126
So with all of those considerations it is why I preferred to hear some submissions in a fairly extensive basis first up to give me some sort of a feel for where we might go. So I will hear from you, Mr Moore, and before, if it is okay with you, Ms Lewis, before you respond to what Mr Moore said, I think it might be appropriate at that point to go into conference. I am in your hands in that if you would prefer to respond on the record then I am happy to do that also.
PN127
MS LEWIS: Perhaps we can compromise, your Honour, and if I feel the necessity to respond on record I will indicate that at the time, or else I am happy to move into conference.
PN128
THE DEPUTY PRESIDENT: Thank you, Ms Lewis.
PN129
MR MOORE: If your Honour pleases, the submissions we would wish to make will be dealing only with outline at this point. And secondly, insofar as any submissions made by way of summary of what will be the company's more detailed positions in due course, on the second question if you like on the assumption that the Commission has power under clause 33 to deal with this matter, then we would submit that any comment or submission on that matter is subject to the jurisdiction or power objection that we have made and it cannot be taken as any concession in that the Commission does have power to deal with this matter under clause 33 and section 170LW.
PN130
But having said that, and not a preliminary comment perhaps, is that the terms of the submissions from Ms Lewis, in our respectful submission, demonstrate that there is a need to be substantial evidence and argument both on the question of power, simply because of the history - the references to the history and to other circumstances, might properly be taken into account by the Commission in the interpretation of clause 33. And secondly, in terms of the outline of Mr Kahn's evidence, of what his evidence would be about the conduct of the matter and what was said during various meetings and conferences, what was said during the interview process and other matters.
PN131
All of that is clearly matters which need to be the subject of detailed evidence and cross-examination and evidence from witnesses on behalf of AXA, if the matter does properly proceed under clause 33. But to give the Commission some indication as to how the company sees the matter, there is much in what Ms Lewis says that we accept and that we do not wish to dispute, although obviously it will need to be fleshed out. He has been an employee for some considerable period and it was announced in September that, along with many other changes that companies like AXA Australia and many other companies need to in these difficult times, keep working on restructuring in endeavours to improve efficiency, to improve the quality of the work and to improve the quality of the outcomes.
PN132
There was an announcement in September that there were going to be a range of changes in the division in which Mr Kahn worked. And perhaps to complete that side of it by way of a documentary point at this stage, might I tender the - there was an e-mail - I will provide copies of this to my friends as soon as possible.
PN133
MR MOORE: Thank you, your Honour. There was a memorandum from Mr O'Shea to a number of people which outlined - including Mr Kahn, which outlined the changes that were going to be made. The one that was relevant to Mr Kahn is under paragraph number 3 at the bottom of the page and this, an understanding of what was intended by the restructure is very important, or understanding the context in which the job changes were made, or the nature of the transitional roles that were created, the change management roles that were created, and hence as will become apparent from what we say later, the unsuitability of Mr Kahn for the new position as opposed to his continued suitability for what had been requirements of the former position. And in that context, the paragraph reads:
PN134
In line with our strategy to move away from proprietary software by using off the shelf products and to rationalise our environment the following changes will occur. A plan will be made to ...(reads)... reporting into ABF.
PN135
And that is the break/fix area that Ms Lewis referred to:
PN136
This will create a transition structure ...(reads)... and expressions of interest will be sought at that time.
PN137
So that was the context in which the announcement to which Ms Lewis referred to was made and one of the persons who were affected by that change was Mr Kahn. It is important to understand also, in our submission, that the position which was created, or the two positions, the I4 and the I5 positions which were created, were change management positions and they were, as was made clear to the job applicants during the interview processes, transitional roles. It was not expected that these roles would last for longer than about 12 months.
PN138
How they evolved after that, and what positions were required after that, would itself depend upon the outcome of the change management process in this important area of information services.
PN139
Now, we accept that Mr Kahn expressed interest in both positions. An internal applicant, Mr Efron, was appointed to the more senior position and no person was appointed as a result of the expressions of interest from internal applicants after the 3 September process was concluded during November and early December. The positions, really, that Mr Kahn was assessed as not being suitable for the new position - and I should say that there were a number of applicants apart from the persons holding the former three positions for the two ongoing positions.
[11.00am]
PN140
There were other applicants for those positions internally because the availability of the positions was advertised internally within AXA. So it was not just a matter of looking at those who had previously been performing a related role as to their suitability for the changed role but rather as is required by clause 21.2 of the enterprise agreement the jobs that are affected are declared vacant and employees are invited to express an interest in vacancies. That requirement set out in clause 21.2 of the enterprise agreement applies whenever a restructure occurs which will lead to a reduction in jobs of a particular type in the business function. So there were vacancies in the new positions.
PN141
Expressions of interest were invited. Mr Kahn was one of those who expressed interest, along with other internal expressions. The expression, just as you have seen in the documentation was quite detailed. Others put in similar expressions of interest. There was an interview process constituted by the three persons Ms Lewis mentioned. There were criteria for the new positions and against those criteria Mr Kahn was assessed as not being suitable, as were none of the other applicants for the I4 position.
PN142
Now, that having happened in accordance with AXA's standard processes, the positions were advertised externally but it is important to understand in view of Ms Lewis' point about the apparent change in the nature of the job as described in the advertisements. Accepting that that for the moment is a correct characterisation, that there was a change in the nature, it is important to understand that AXA operates externally by way of recruiting through four external agencies. Each of them, based on the information provided to them by AXA about what the job is, develop their own way of describing the job in order to attract potential job applicants.
PN143
The job is, therefore, described differently according to their assessment of what is required to attract the broadest field of potentially suitable candidates. That, in short, is the simple explanation and the accurate explanation of why there might appear to be differences between the job description as provided to the internal applicants and the advertisement provided externally. That advertisement was based on the same job description. Now, all of these matters, obviously, may need to be gone into in much more detail in due course. Mr Kahn was notified by - I think there has been a letter tendered of 11 December but there was also another letter dated 11 December, which was provided to Mr Kahn, which I would seek to tender.
PN144
MR MOORE: That letter notifies Mr Kahn - and I should perhaps say by way of qualification at this stage that my understanding is that the letter that was actually sent to Mr Kahn was signed by another - I am sorry that I don't have the correct signatory details. It was a letter signed by Mr O'Shea, as the manager, rather than Mr Hoyle, but the text of the letter is otherwise correct and we will ensure that the Commission is provided with a copy of the correct letter.
PN145
THE DEPUTY PRESIDENT: Sorry, Mr Moore. What you are saying to me is this letter is a letter in similar form but not the letter that was actually conveyed to Mr Kahn?
PN146
MR MOORE: That is so, sir, and I don't have available at the moment a copy of the actual letter but I am instructed that the text of the letter is the same. It is simply the signatory which differs. The purpose of drawing it to your attention at this stage is to point out that on 11 December Mr Kahn was notified that his position was redundant and he was advised that his employment would be terminated, effective 18 January, "unless we agree mutually on an earlier departure date". Four, the letter goes on to say, "unless an appropriate redeployment opportunity becomes available before the departure date".
PN147
So Mr Kahn did have early notice that not only the position was redundant but that his employment would be terminated on 18 January unless a suitable redeployment opportunity was identified. Now, I am not in a position at the moment, because I have no instructions, to deal with what is said to have been said by Mr Flintoft concerning the availability of alternative positions and that obviously may be a matter of evidentiary contest down the track. So there was that letter provided on 11 December and there was subsequent correspondence as well. Firstly, on 23 December a letter was sent to Mr Kahn, signed by Mr Flintoft, which I would seek to tender.
EXHIBIT #R3 LETTER TO MR KAHN SIGNED BY MR FLINTOFT DATED 23/12/2001
PN148
MR MOORE: You will see from that, sir, that again 18 January is identified as the date of termination and full redundancy provisions would apply. It attached both a redundancy kit and details of the redundancy entitlements which will obviously be a matter which would be dealt in evidence further, but the purpose of tendering the letter at this stage is simply to indicate that there was a continuing process being gone through where Mr Kahn was being kept informed of what was happening in relation to the redeployment possibilities and being kept informed as to what would happen if redeployment was not possible. Then, finally, Mr Kahn was given notice of termination or, rather, a letter confirming that the employment would terminate on 18 January 2002, which I would seek to tender.
EXHIBIT #R4 LETTER TO MR KHAN CONFIRMING EMPLOYMENT WOULD TERMINATE ON 18/01/2002
PN149
MR MOORE: That letter advises that a suitable role has not been identified and Mr Kahn would be terminated with effect on that date. Now, there were a number of discussions which were going on with both Mr Kahn and the union in the preceding days and on 18 January. Mr Kahn was informed that, pursuant to the union's request, the company's position was being reviewed but the decision was made on 18 January not to change the company's position despite the matters raised with it. He was notified personally of that and also the union was notified by reason of the letter that has already been tendered.
PN150
So in terms of the processes that took place between the date of notification to Mr Kahn that his position was redundant and that his employment would be terminated on 18 January and subsequently, there was certainly a number of meetings and discussions and my instructions are that the characterisation of what was said on behalf of the company during those meetings given by Ms Lewis is disputed and that further information was provided during each of those meetings than has been briefly outlined.
PN151
In particular, at the meeting which took place on 21 December, it was made clear to Mr Kahn that there was really not an issue so far as the company was concerned in relation to Mr Kahn's technical experience or technical knowledge. But, really, the essence of the position is that we had a - before the change there was a job, the very major focus of which was technical knowledge and technical skill and there is no issue that Mr Kahn was satisfying the necessary requirements there. But in the new role - and this will be the subject of evidence - the position is very much reversed.
PN152
There is a diminished requirement of technical skill and a much larger emphasis on the change management process, the ability to communicate, the ability to deal with business units and generally to be pro-active in leadership, to be adaptable, to be cooperative and to be innovative. Now, these are things which everyone has to some extent. I don't think anyone would say no one has any ability to do any of these things. The issue is, in the second element of the case, whether the company had reasonable grounds to come to the conclusions that it did that despite Mr Kahn's varying capacities in those respects he was, nonetheless, not suitable for the role.
PN153
All of those matters were gone into in some detail with him and with the union during the various meetings that have been referred to. If it becomes necessary to deal with the question of whether or not Mr Kahn was the most suitable appointee to the role, then our submission will be that the company applied a fair process and acted reasonably and there are no grounds on which the Commission could interfere with that exercise of judgment by the company as to who was the most suitable appointee to the role.
PN154
However, as we have indicated, sir, our principal submission is that the procedure being sought to be given life in this proceeding by the union is not the appropriate procedure and we would respectfully submit that the Commission may have certain powers under clause 33, if clause 33 applies, but in our submission clause 33 does not apply. Without, perhaps at this stage, going through that in detail, we would simply note that this is a case, as you have already adverted to, about termination. It is about a dispute as to whether or not Mr Kahn should have been terminated and the union itself acknowledges that very clearly in its application. What it says is - and this is in the second paragraph of the notice:
PN155
The matter in dispute relates to AXA Australia's non-appointment of Alec Kahn to a position of change manager, a decision which has resulted in his imminent retrenchment at the close of business tomorrow, that is, 18 January 2002.
PN156
AXA Australia has made a decision in relation to termination and it is really that decision which is being challenged in these proceedings and the fact that it is being challenged in these proceedings and that that is the essence of what the issue is about is demonstrated by the relief that Ms Lewis sought. She says we want a direction that this man be reappointed; we want him reinstated. That is what the issue is about. It is not about have we applied the procedures in the enterprise agreement properly, is there a dispute over the application of the enterprise agreement. That is not what the dispute is about. The dispute is about whether Mr Kahn should be employed or not and whether he should be reinstated.
PN157
The reason we submit in outline that clause 33 doesn't apply is that it is intended, in our respectful submission, to deal with disputes between employers and employees who are in a continuing employment relationship. The first point that establishes that is that the clause starts in the second paragraph with the phrase "with the exception of any dismissal", and Ms Lewis has accepted that dismissal is not intended to be read in any narrow way. It is intended to deal with any termination of employment. Admittedly the words "any grievance or dispute" are wide but then it says "arising within AXA Australia".
PN158
So it is focusing on the ongoing relationship. The dispute must be within AXA Australia. As soon as the termination has taken effect, as it has and as Ms Lewis has conceded, there is no longer a dispute within AXA Australia. Then if you refer to the way in which the subsequent detailed paragraphs are set out, it is hard to envisage these clauses applying other than in the context of an ongoing employment relationship, in our submission. That is the assumption on which the clause is built and that that is so is emphasised by paragraph 5, which indicates that work will continue under previous arrangements while the matters in dispute are being dealt with.
PN159
It is not employment will continue. It is work. So the whole structure of the clause is, in our submission, built on a dispute between the parties, which is a grievance or a dispute arising within AXA to do with the continuing employment relationship.
PN160
THE DEPUTY PRESIDENT: Sorry, Mr Moore, just a question on paragraph 5. Why couldn't that be interpreted on the basis that it is there to prevent the very thing that has occurred?
PN161
MR MOORE: Because, sir, it is - the phrase is "without prejudice to either party, work will continue under previous arrangements"; under previous arrangements" must be talking about the way in which the work was carried on prior to the particular decision which is the subject of the grievance. The fact that it talks about under previous arrangements is there has been a change in work arrangements, not the existence of the work relationship itself.
PN162
THE DEPUTY PRESIDENT: Yes, but I think - and I don't want to appear to be reading things into it. I mean, essentially, what this is attempting to do, like many disputes procedures do, is put a status quo circumstance into place. At least that is the way it reads to me.
PN163
MR MOORE: Yes, I accept that in general terms but the question is what aspect of the status quo can be maintained, and the aspects of the status quo that can be maintained are those to do with an ongoing relationship, not those to do with the decision to terminate, which is reinforced by the opening words of the clause. Obviously, these matters will be the subject of further elaboration and reference to appropriate case law and, if need be, the history of this particular clause but perhaps the biggest reason why this dispute ought not be dealt with under this clause is that the Act itself provides a remedy.
PN164
If Mr Kahn alleges he is being unfairly dismissed then he is entitled to bring an application under the Act. He is covered by the award and the enterprise agreement and there is a very particular set of powers and procedures provided by the Act to deal with an allegation that a person has been unfairly dismissed. Whilst we don't invite Mr Kahn to make such an application, because in our view the matters have been dealt with appropriately, and the decision, whilst it has an unfortunate, adverse impact for him, is nonetheless fair and reasonable. That is the remedy which he should pursue if he wishes to pursue it and not an application under this clause.
PN165
THE DEPUTY PRESIDENT: So are you saying to me, Mr Moore, that the unfair dismissal procedures under the Act would obviate any ability of this Commission to make an order of the type sought by Ms Lewis?
PN166
MR MOORE: Yes, I do say that. I mean, put it this way: Ms Lewis has not referred you to any source of power to make such a determination but the main point is that there are two streams. There is a stream to deal with issues arising during the employment relationship and there is a stream which is dealt with by the enterprise agreement and there is a stream to deal with terminations, which is dealt with by the Act.
PN167
THE DEPUTY PRESIDENT: Yes, but hypothetically, if we assume for a moment that the power that Ms Lewis claims resides in this Commission with respect to this agreement is actually there - - -
PN168
MR MOORE: I am sorry - - -
PN169
THE DEPUTY PRESIDENT: If we assume for a moment that the power that Ms Lewis claims for this Commission in respect of this agreement is actually there, that that power does in fact reside in the Commission to be able to determine an outcome, are you then saying to me that the fact that there are unfair dismissal provisions in the Act would obviate the Commission from making a determination in the terms put by Ms Lewis?
PN170
MR MOORE: I am submitting, I think, your Honour, that if there is a power given to the Commission to determine the dispute by these provisions, and there are some other issues, some of which you have adverted to during the questions of Ms Lewis, then the question would be whether this clause is a clause which is authorised by the Act, because it is purported to be included in the agreement under section 170LW, which in turn, of course, as the Commission will be aware, is reflective of the requirement under section 170LT(8) that there be a dispute settling procedure in the agreement.
PN171
But the important thing is that what is empowered is a dispute to be settled about matters arising under the agreement in LT and in LW over the application of the agreement. In our respectful submission, this is not a dispute of that character.
PN172
THE DEPUTY PRESIDENT: Okay. I am not attempting to get, or if I appear to I don't mean to attempt to be getting into a detailed analysis of all of this at this stage.
PN173
MR MOORE: No, I understand.
PN174
THE DEPUTY PRESIDENT: It is just that - and I recognise that there is a number of areas that are open for interpretation and substantial argument. I was just trying to come to grips with what it was that you were actually suggesting to me in summary form.
PN175
MR MOORE: Well, I hope I have clarified that, sir.
PN176
THE DEPUTY PRESIDENT: You have. Thank you.
PN177
MR MOORE: I am just checking with some other observations made by Ms Lewis to see whether there is any specific comment called for at the moment. In general terms, of course, we would submitting the fact that an employee is suitable for a particular position doesn't mean that he is necessarily suitable for appointment to another position which has different requirements. The other point that I did wish to specifically refer to, which I think was in passing referred to by Ms Lewis, is the way in which clause 21.2 itself is drafted. There is an important statement in the second sentence of that clause which says:
PN178
The filling of new and restructured roles will be on the basis of selecting the most suitable person for the position.
PN179
So whilst suitability is referred to, the actual ultimate criterion is who is the most suitable person under that clause. I think Ms Lewis also referred to the possibilities about training and what timing might be involved in that. I would simply want it understood that we don't accept necessarily the characterisation given by a person who is not an employee of the company. The person who is quoted is a contractor to the company and there may or may not be issues about whether there were realistic training options, given the transitional characterisation of the role.
PN180
Perhaps the last point, which for the sake of completeness I should deal with, is that it was sought to make a direction under section 170MD(6), which is perhaps again something the subject of more detail but as I understood what Ms Lewis said she was saying, that the Commission should issue a direction to AXA to apply to vary the certified agreement to remove the ambiguity about the most suitable person. Now, I simply submit that there is no power that the Commission could have under any source that could require a company to make an application. If the Commission pleases.
PN181
THE DEPUTY PRESIDENT: Thank you, Mr Moore. Ms Lewis.
PN182
MS LEWIS: Yes, there are few matters I would like to respond to on record, if I may.
PN183
THE DEPUTY PRESIDENT: I thought there might be. Yes.
PN184
MS LEWIS: I will try and be brief.
PN185
THE DEPUTY PRESIDENT: I wasn't intending, by the way, Ms Lewis, to rob you of your opportunity to have your response.
PN186
MS LEWIS: No, I realise that.
PN187
THE DEPUTY PRESIDENT: It was simply a matter of where we did that but by all means go ahead.
PN188
MS LEWIS: No, I understand, your Honour. Thank you. There are a number of matters, your Honour, that I would like to address from Mr Moore's comments. First of all, as exhibit R1 Mr Moore submitted a copy of a memo dated 3 September, which actually was a follow-up to the meeting at which staff were advised of the restructure and the probable outcome of the restructure and the arrangements to be followed, etcetera. He went to some detail in reading from part 3 of that document, which talked about the transitional structure to apply before a final structure was brought into place at some future time.
PN189
He anticipated that the change management positions for which Mr Kahn had applied in fact were not likely to go beyond 12 months or so, and gave some credence to that. However, I point out that under the company's redeployment redundancy policy you can be redeployed into a short term job and I would refer you to exhibit A12 on page 1, the redeployment policy. The third key principle listed on that page is:
PN190
Short term redeployment options as well as any other longer term options will be explored.
PN191
And under subsequent sections it also talks about short term job placements for redeployees. So, notwithstanding that this was a transitional position, Alec could still have been redeployed into it. Mr Moore's comment when he talked about other people having applied for the job within the company and that the focus is on - and this is really paraphrasing what he said, but attracting the broadest possible field, that that is the aim of the company, to attract the broadest possible field in order to get the best applicant.
PN192
Now, that might be laudable but we are talking about the fact that there is a restructure process which deals with redeployment and redundancy under the enterprise agreement and under their own company R and R policy, which says that the focus is on trying to minimise or avoid compulsory retrenchments and that the focus is supposed to be on trying to redeploy people within the company. So on the one hand we are saying, well, we have to go outside because we have to attract the broadest possible field but we are supposed to be pulling our belts in as far as trying to place redeployees. That just doesn't gel.
PN193
Also I am talking about the issue of the most suitable person and again the focus of the agreement talks about organisational change and the resulting dislocation of staff and then jobs becoming redundant, staff having to be redeployed and the last possible option is retrenchment if they are not able to be satisfactorily redeployed. So my interpretation of most suitable person in the context of the enterprise agreements provisions is the focus on redeployment. So it is not looking at the general recruitment campaign of we want the best possible person so we will cast a wide net, that concept, it is we have a look within our - our first priority is to our existing staff, we try and accommodate them where possible, if we can't then there are other options available.
PN194
The rather extraordinary suggestion that the disputes process does not apply unless there is an ongoing employment relationship between the company and the employee concerned. There was certainly an ongoing - there was an employment relationship between Alec and AXA at the time that he lodged his grievance notice with the company.
PN195
THE DEPUTY PRESIDENT: Can I just ask, and perhaps you have already covered the point, I think you did. But what was the date that this became part of the formal disputes procedure?
PN196
MS LEWIS: He actually triggered it in an e-mail on 17 December, to his manager. But he had had some discussions about why he had been deemed not suitable for appointment. And just to get this timetable right too, your Honour. Mr Moore tendered a copy of a letter dated 11 December as exhibit R2, which was the formal notification that his job was redundant and that he was now going to be subject to the redeployment process etcetera. So, if you like, the clock started ticking from then.
PN197
But in reality, that was only the formal part of it, that was dotting the i and crossing the t of the official notification that he was redundant. He had known as early as about 3 September, that first meeting when it was made clear that the jobs in that area were not going to be there or there would be fewer jobs. So in every likelihood his job was not going to be there and he knew that from as far back as 3rd of - last year. So to say that he wasn't a redeployee at the time of the job interviews because his job had not officially been made redundant is a nonsense. The work had changed, he had been moved into Mr O'Shea's area and the consolidation of the jobs had started. So there had been an ongoing process, his job had certainly been redundant well before he had known of his job being redundant, well before 11 December.
PN198
One of the other points that I would like to raise about the suggestion of Mr Moore that the disputes process of the enterprise agreement does not apply, or only applies to those with an ongoing employment relationship and Alec did not have an ongoing employment relationship with AXA at the time, or any time, they would have us believe, but at the time of his having lodged the application or the grievance on 17 December, ignores the fact that - actually if you take that to its logical conclusion, that means that anyone who is advised that they are redundant and is going to be subject to the redeployment process, could arguably be said to not have an ongoing employment relationship with AXA and, therefore, they have no right of appeal unless they get retrenched in which case they might be able to lodge an unfair dismissal after the event. That is a nonsense obviously.
PN199
The comment about the work will continue provision at step 5 of the disputes process, that given that says work will continue under previous arrangements rather than employment will continue. Alec's work could not continue under previous arrangements because his job was not there, he had been doing fill in work and towards that transitional structure. So the actual job he had been doing may not have been able to be done by him but we ask that his work there, as in working there, be allowed to continue in that ad hoc way that he had been at the time.
PN200
So we share the - it is our assertion that that step 5 of the disputes process is a status quo provision, it says, hold off any changes until this matter is resolved through this dispute settlement process.
[11.33am]
PN201
THE DEPUTY PRESIDENT: Sorry, can I just interrupt again, Ms Lewis, and I am conscious that you may want to put at some point in time much more detail argument to me in respect of some of these matters, but in the disputes procedure it talks about the issue of dismissal, it accepts or qualifies the disputes procedure by saying that, you know, with the exception of dismissal. I guess what concerns me a bit is when does a dismissal because it would seem to be open under the disputes procedure for anybody advised of dismissal, for any reason, to immediately put that into the disputes procedure. And it would seem to be - the exception of having the dismissal there would prevent that from occurring.
PN202
So in other words you have got quite a sensible qualification there, such that any dismissal that the company wants to undertake, and legitimately might want to undertake, can't be frustrated by it being put into the disputes procedure. So I guess what is confusing me a bit is at what point do we have a dismissal, and at what point does that qualification take effect.
PN203
MS LEWIS: I understand.
PN204
THE DEPUTY PRESIDENT: And I am sorry if I have put you on a spot on that. I do not mean to, and I accept that you might want to make some more substantial submissions about that because it does go to the point of whether there is actually jurisdiction here at all.
PN205
MS LEWIS: I understand what you are saying, your Honour, and whilst it might need a more detailed response I am happy to give a top of the head response.
PN206
THE DEPUTY PRESIDENT: Sure.
PN207
MS LEWIS: And that is that given that this isn't about a decision to terminate his employment. This is about the process of his redeployment that was flawed and which subsequently led to termination by way of retrenchment. But it is not about the actual termination of employment. And having lodged the grievance at the time of his non-selection or his non-consideration, or consideration as having been not suitable, for appointment to the position that he had applied for as a redeployment opportunity, it was trying to make sure that - or trying to undo what had happened so that he was able to be redeployed.
PN208
Now, if you use another example that springs readily to mind, and that might be someone who is being performance managed. Now, this is in no way a reflection on Alec, that is completely unrelated case, but it still has a possible same scenario. So someone is being performance managed for unsatisfactory work performance. They are put on a program, say a three month program. They are told what the concerns about their performance are, the standards they are expected to measure up to, what assistance or training the company might provide to them to get them up to that standard, that it will be reviewed, that there will be discussions about their progress over a course of, say, three months. And at the end of the three months there will be an assessment made whether they have measured up or not. And usually the scenario is that if you haven't measured up - if you have measured up, fine, if you haven't then further disciplinary action may be taken against you which could include dismissal. Now, that is a very common scenario.
PN209
So the person has agreed that if they are called in today and given that spiel the performance management program starts from today. They are aggrieved because they don't think there is a problem. Now, because one of the possible outcomes three months down the track might be dismissal, does that mean they do not have recourse to the disputes process because ultimately it might be about termination of employment or ultimately they may not have an ongoing relationship with the employer.
PN210
THE DEPUTY PRESIDENT: And in the instance that it was dismissal, in the instance that it was not couched in sort of the qualifications that you have put to me, in the instance that it might be put that at the end of the this four week period if you haven't improve you will be dismissed.
PN211
MS LEWIS: Then there might be - only a top of the head response is that whilst there might be further discussions about that to try and avert the dismissal, if the dismissal went ahead and it was not able to be averted or undone straightaway, then if the employer had a case then, yes, of course, a termination application might be appropriate in that circumstance. But we would argue that there was another force in play here, and that was the RNR provisions of the enterprise agreement, and that is what the focus was.
PN212
So whilst the company would have you believe that the letter of 11 December officially and formally advising Alec that his job was redundant that that was when his job was redundant, that that is a nonsense. It had actually become redundant some time prior to that. An exact date I can't give you but it is the way that the transitional role started being developed as opposed to his usual work. So he was, for all intents and purposes, a redeployee when he put his hand up for the job that he missed out on. And that there was no proper consideration given to his status as a redeployee.
PN213
Your Honour, there is, I think, only one other matter or comment by Mr Moore that I wanted to comment on, if I can find it in my notes. Yes, Mr Moore went into some detail about another reason why Alec was deemed not suitable for appointment to the new role, and that is because rather than the technical and other focus of his old role that this new role turned that around and the emphasis - it was diminished technical role with more emphasis on the other leadership, being innovative and proactive, etcetera.
PN214
My only comment there is that that is not borne out by the documentation. The job requirement document I handed you up and also the external ad that I handed up as exhibits earlier still had the same competency requirements, the same or very similar competency requirements as Alec had had in his previous role. The same technical requirements were there, as well as the leadership and professional competencies that were required in both roles. It was only the measure of standard that differed in some respects. But nevertheless the same competencies were required. And I do not believe the assertion holds up this scrutiny. If your Honour pleases I think that concludes the responses I wanted to make.
PN215
THE DEPUTY PRESIDENT: Thank you, Ms Lewis. Well, I propose to adjourn for a matter of 15 minutes and reconvene in conference. So we will adjourn until five minutes before 12 and reconvene back in here in conference.
SHORT ADJOURNMENT [11.40am]
RESUMED [12.40pm]
PN216
MR MOORE: Sir, before you commence perhaps, and I apologise for not mentioning this earlier.
PN217
THE DEPUTY PRESIDENT: Yes, Mr Moore.
PN218
MR MOORE: But we have just - we have heard in exchange, a couple of matters may have been overlooked and I am not sure whether this should be on the record, but we would simply want it understood that it be part of the terms that the agreement would be confidential and we would like it accepted by the FSU that this is a matter which is applicable to this particular arrangement only and is not in any sense to be used as precedent for other circumstances. It is a matter unique to Mr Kahn's circumstances. That would be the only basis on which Mr Veale could recommend to the relevant people the arrangements to be entered into.
PN219
THE DEPUTY PRESIDENT: I would have thought Ms Lewis - - -
PN220
MS LEWIS: Your Honour, the FSU would expect to be signing a deed of release which more often than not includes a confidentiality clause.
PN221
THE DEPUTY PRESIDENT: Yes.
PN222
MR MOORE: That is fine. Thank you. I just wanted to make sure there was no misunderstanding on those issues.
PN223
THE DEPUTY PRESIDENT: Okay, thank you, Mr Moore. The parties have had discussions in conference in an attempt to conciliate this matter, and there has been a proposition put which I think it is fair to say has tentatively approval as a means of full and final settlement of the matter. There are some further discussions to take place between the parties with respect to that settlement, and on that basis I will hold the file open for a period of seven days from today to be either advised by the parties that the settlement has been reached, in which case I will close the file immediately. Or alternatively that they fail to reach that settlement, in which case I will call for submissions by the applicant to go to the question of jurisdiction of this Commission in the matter, and also to go to the authority and basis upon which the applicant intends to rely in respect of any order that the Commission may ultimately issue in the matter.
PN224
With respect to those submissions, should it get to that point, I will have discussions with the parties prior to any hearing regarding the appropriate timings. I think on that basis, there being no further issues, we can adjourn.
PN225
MR MOORE: If the Commission pleases.
PN226
THE DEPUTY PRESIDENT: Thank you.
ADJOURNED INDEFINITELY [12.43pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #A1 LETTER FROM FSU TO AXA DATED 17/01/2002 PN25
EXHIBIT #A2 LETTER FROM AXA TO FSU DATED 18/01/2002 PN28
EXHIBIT #A3 E-MAIL SENT BY ALEC KAHN TO KEVIN O'SHEA ON 17/12/2001 PN38
EXHIBIT #A4 E-MAIL SENT TO MR O'SHEA AND MR CROUCHER FROM MR KAHN ON 24/12/2001 PN41
EXHIBIT #A5 MEMO FROM KEVIN O'SHEA DATED 15/11/2001 PN63
EXHIBIT #A6 EXPRESSION OF INTEREST APPLICATION SUBMITTED BY MR KAHN PN67
EXHIBIT #A7 LETTER RECEIVE BY MR KAHN ADVISING MR FLINTOFT APPOINTED AS REDEPLOYMENT ADMINISTRATOR PN69
EXHIBIT #A8 REFERENCE WRITTEN BY KEVIN O'SHEA DATED 14/12/2001 PN70
EXHIBIT #A9 COPY OF INTERNAL JOB DESCRIPTION PN75
EXHIBIT #A10 COPY OF EXTERNAL ADVERTISEMENT PN75
EXHIBIT #A11 COMPETENCY ASSESSMENT FOR ALEC KAHN PN85
EXHIBIT #A12 COPY OF ENTERPRISE AGREEMENT AND AXA POLICY PN97
EXHIBIT #R1 E-MAIL PN133
EXHIBIT #R2 LETTER TO MR KAHN DATED 11/12/2001 PN144
EXHIBIT #R3 LETTER TO MR KAHN SIGNED BY MR FLINTOFT DATED 23/12/2001 PN148
EXHIBIT #R4 LETTER TO MR KHAN CONFIRMING EMPLOYMENT WOULD TERMINATE ON 18/01/2002 PN149
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