Reasons for Decision

Background

1         The applicant, Mr Ettienne Van Tonder, was part of a small team of three lawyers working for the South West Aboriginal Land and Sea Council (SWALSC) until June 2021. At that time, SWALSC was at a strategic junction. It was evolving from a body whose primary purpose had been the pursuit and resolution of native title claims by the Noongar traditional owners to becoming a Central Services Corporation (CSC) to give effect to the settlement which resolved those native title claims in the South West of WA.

2         In April 2021, the legal team were informed that the entire legal department would be made redundant as a result of the settlement of the native title claims with the Western Australian government, known as the South West Native Title Settlement.

3         In May 2021, SWALSC appointed a new CEO, Mr Edward Armstrong.

4         In June 2021, Mr Van Tonder’s employment was terminated on the grounds of redundancy.

5         Mr Van Tonder challenges the termination of his employment, alleging that it was harsh, unfair and oppressive on the following grounds:

(a) that there was no genuine redundancy as there remained a significant amount of legal work for the lawyers and the legal department generally to perform;

(b) that there was a failure to properly consult with him in relation to the redundancy; and

(c) that his selection for redundancy and the retention of a co‑worker as the sole continuing lawyer in preference to him was inappropriate.

6         There is no dispute in these proceedings that the Commission has jurisdiction to determine Mr Van Tonder’s claim because he is an employee as defined by the Industrial Relations Act 1979 (WA) (IR Act), SWALSC is an employer that is not a national system employer for the purposes of the Fair Work Act 2009 (Cth) (FW Act), Mr Van Tonder’s salary did not exceed the prescribed amount and the application was lodged within time.

7         Mr Van Tonder gave evidence in the proceedings, and Mr Armstrong gave evidence for SWALSC. In each instance, their evidence‑in‑chief was given by way of affidavits which were tendered as exhibits A1 and R2, respectively. Mr Van Tonder and Mr Armstrong were cross‑examined extensively over the course of the hearing.

8         Before coming to contested matters, it is convenient to set out the uncontroversial factual background which emerged from the witnesses’ evidence.

Mr Van Tonder’s employment

9         SWALSC is the Native Title Service Provider (NTSP) for the South West of Western Australia. It had acted as the native title representative body of the Noongar People for the purpose of native title claims under the Native Title Act 1993 (Cth).

10      SWALSC is funded by the National Indigenous Australian Agency.

11      From around 2016, following the resolution of those native title claims, SWALSC’s focus, and activities evolved. The South West Native Title Settlement involved the conclusion of six regional Indigenous Land Use Agreements (ILUAs) between the State Government and native title agreement groups. The South West Native Title Settlement ultimately meant that SWALSC would cease native title litigation functions at the conclusion of the settlement process. Its future viability depended upon it becoming a CSC which would provide core services to the regional corporations under the ILUAs. There was also a possibility of it becoming a Heritage Service Provider.

12      Mr Van Tonder obtained a Law Degree at the University of South Africa in 1990, was admitted to practice law in Western Australia in 1999 and obtained a Master of Laws Degree at the University of Western Australia in April 2014.

13      Mr Van Tonder worked for SWALSC as a Senior Lawyer from November 2001 until July 2007 before re‑joining SWALSC in May 2017.

14      Mr Van Tonder’s engagement by SWALSC as a Senior Legal Officer (SLO) in May 2017 was initially to manage the Future Acts department identifying concluded ILUAs and the steps necessary to ensure that they could be assigned to Noongar Regional Corporations (NRCs) which were in the process of being established. At that time, other lawyers within SWALSC’s legal team were performing legal work related to the ongoing native title litigation. Mr Van Tonder’s role was commercial and transactionally focused.

15      In May 2019, Mr Van Tonder successfully applied for the Principal Legal Officer (PLO) position following the resignation of the then PLO. He was appointed to that position on 4 June 2019. From that time, he was involved in supervising the legal team comprising two SLOs and a number of administrative staff while continuing his Future Acts work.

16      In the course of 2020, the legal team’s primary role was to provide legal advice, guidance and assistance to the CEO and SWALSC’s Board in corporate and native title matters. As a NTSP, SWALSC was required to perform various functions as part of the implementation of the South West Native Title Settlement, including assisting with the establishment of the six NRCs and transferring compensation and Noongar Standard Heritage Agreements (NSHAs) to the regional corporations once established.

17      In early 2021, SWALSC’s Board had taken a strategic decision to set itself up as a CSC, although its future as such was conditional and uncertain. Unless it secured funding and regional corporation agreements to operate as a CSC, its functions as an NTSP were finite and would effectively end once the settlement agreements were implemented.

18      In around October 2020, the employment of the then CEO of SWALSC ended. In November 2020, SWALSC appointed Grant Thornton as project manager and Mr Anthony Beven, a partner at Grant Thornton, as acting CEO. Shortly after commencing as acting CEO, Mr Beven embarked upon a program of restructuring operations within SWALSC.

19      On 17 December 2020, Mr Beven met with Mr Van Tonder together with SWALSC’s HR Manager, Ms Angela Jonucz. The outcome of this meeting was to update Mr Van Tonder’s job description. Mr Van Tonder’s job description of December 2020 was in evidence. It described Mr Van Tonder’s role as a PLO to be:

Finalise the Native Title Agreements through the remaining legal processes.

Manage all the legal obligations associated with the cessation of SWALSC Native Title Services.

Supervise all legal staff.

20      The specific duties set out in the job description were as follows:

1. To work as an active member of the SWALSC management team to ensure the operations and NTRB functions of SWALSC are undertaken efficiently and contribute to the objectives and strategic direction of SWALSC.

2. Coordinate and facilitate the legal operations of SWALSC in accordance with its obligations as Native Title service provider.

3. Oversee and facilitate ongoing compliance under existing land access and compensation agreements and facilitate the transfer of acquired right, title and interest under the Native Title Act (NTA) and/or regional Indigenous Land Use Agreements (ILUAs) to regional corporations in accordance with the provisions of the ILUAs/existing agreements or as instructed by the claimant groups/agreement groups.

4. Develop and facilitate a cultural heritage team and lands team with sufficient capacity to function and operate in commercially sustainable fashion for the benefit of the Noongar community.

5. Coordinate and facilitate the development and implementation of Legal, Cultural Heritage and Lands team policies, protocols and procedures that will ensure the provision of services in an effective commercially sustainable fashion.

6. Coordinate and facilitate the work undertaken by all staff, appointed, or contracted by SWALSC, to work within the legal, cultural heritage and lands teams, including para‑legal and legal administrative/support staff.

7. Provide legal and associated advice, direction and facilitate appropriate legal, or associated specialist training, to staff, project officers and other experts appointed, or contracted by SWALSC where necessary to ensure the effective functioning of the Legal, Cultural Heritage and Lands units.

8. Oversee and facilitate processes under the future act regime to conclusion.

9. Oversee the development and maintenance of legal briefings, documentation, information systems and registers as required by the Legal, Cultural Heritage and Lands units.

10. Contribute to the preparation of annual reports, strategic plans, operational plans and other compliance and performance reports.

11. Oversee professional development and performance of staff within the legal, cultural heritage and lands units.

12. To attend meetings of the Directors, staff and constituents as required.

13. To attend and represent SWALSC at relevant conferences and other forums as agreed with the CEO.

14. To undertake other duties as directed by the CEO consistent with this position description.

Structure of the legal team

21      Between December 2020 and April 2021, the following roles and people were working within the legal team:

(a) Mr Van Tonder in the PLO role;

(b) Ms Carolyn Fennelle in a SLO role;

(c) Mr David Farrell in a SLO role; and

(d) Ms Natasha Naumovski as a legal administration assistant.

22      Mr Van Tonder and Ms Fennelle were both employed on a permanent basis. Mr Farrell was employed pursuant to a series of fixed‑term contracts, commencing on 31 July 2019. His most recent contract was due to expire on 2 September 2021.

23      In summary, the SLO roles involved the following duties:

(a) engaging with the community regarding native title and settlement matters;

(b) dealing with native title mining agreements;

(c) assisting with the NSHAs process;

(d) day to day legal work and dealing with queries from the community; and

(e) interacting with external lawyers from time to time.

24      It was common ground that the work performed by SLOs, and the PLO overlapped substantially. Indeed, in cross‑examination, Mr Armstrong confirmed that the PLO role involved the work of the SLOs plus the additional responsibilities of supervision and management.

25      There was no evidence before the Commission as to either of Mr Farrell or Ms Fennelle’s qualifications and experience. There was no suggestion that either of them was not capably performing their roles. Mr Farrell was younger than both Mr Van Tonder and Ms Fennelle.

April meetings

26      According to Mr Van Tonder, he attended a meeting with Mr Beven and SWALSC’s HR Manager, Ms Jonucz, on 16 April 2021 in preparation for conducting staff performance appraisals.

27      Mr Van Tonder then proceeded to conduct a performance appraisal meeting with Mr Farrell on 20 April 2021. Mr Beven also attended this performance appraisal meeting. Soon after the meeting commenced, Mr Beven made reference to a staff transition plan and advised Mr Farrell that his position was excess to requirements. He told Mr Farrell that his position had become redundant and that his contract would terminate early.

28      Mr Van Tonder says that he was surprised by the reference to a staff transition plan and to a redundancy within his team. This was the first time he had heard of any such plans. Mr Van Tonder felt that Mr Farrell had been ambushed, particularly as the meeting was an annual performance review and no prior indication had been given that staff restructuring would be discussed.

29      Mr Van Tonder’s own performance appraisal was also scheduled for 20 April 2021. This performance appraisal was to be conducted with Mr Beven. Mr Beven invited Ms Jonucz, to join the meeting. According to Mr Van Tonder, Mr Beven advised him that there were no issues with his conduct, behaviour or performance. Mr Beven advised him that his position too would be made redundant. Mr Beven again referred to a staff transition plan and said words to the effect that the document had been approved by SWALSC’s Board. In his affidavit evidence‑in‑chief, Mr Van Tonder said:

47. [Mr] Beven advised me that, based on the “transition plan”, SWALSC will retain one lawyer only, a corporate lawyer.

48. I asked [Mr] Beven whether he had looked at my resume. He responded: “Yes, but this position is much lower than your role”. That was the only time anyone mentioned the corporate lawyer role.

49. [Mr] Beven referred to the “transition plan” on several occasions saying that the decision to make my position redundant was not his decision and that he was only following directions of the Board. I advised him that I was not aware of the document, or content thereof. [Mr] Beven said that he did not know why I had not been consulted and why I’m only hearing about it now for the first time.

50. Towards the end of the meeting, I asked [Mr] Beven who is going to attend to all the commercial and contractual work that was currently underway and the massive amount of commercial work associated with the many hundreds of contracts that needed to be transferred to the future corporations. I advised [Mr] Beven that I’m the only lawyer in the council who is sufficiently skilled and experienced to be able to perform the work. [Mr] Beven responded by saying they will outsource the work to a commercial lawyer.

51. [Mr] Beven told me that [Ms] Jonucz will prepare a redundancy letter which will also provide the option to participate in a voluntary redundancy program.

52. I told [Mr] Beven I was shocked by this decision and told him I reserved all my rights.

30      Ms Fennell’s performance appraisal was conducted on 4 May 2021. This was again conducted by Mr Van Tonder and Mr Beven. After the usual discussion concerning performance, Mr Beven told Ms Fennelle that her position was being made redundant. He advised Ms Fennelle that she would receive a letter notifying her of her redundancy and that she would have the option to participate in a voluntary redundant program.

31      From this discussion, Mr Van Tonder understood that all the lawyers’ positions in the legal team were going to be made redundant, leaving no lawyers in SWALSC to perform what he considered to be a significant amount of legal work remaining.

Mr Armstrong commences as CEO

32      During this period, SWALSC was recruiting for a CEO. Mr Armstrong was the successful candidate, and he commenced on 3 May 2021.

33      Mr Armstrong and Mr Van Tonder met on several occasions between 5 May 2021 and 25 May 2021. It is agreed that they held discussions on 5 May 2021, 10 May 2021, 12 May 2021 and 25 May 2021. There is a degree of dispute about exactly what was said at those meetings. These areas of dispute are dealt with in my reasons below.

34      On 6 May 2021, Mr Van Tonder was provided with a letter titled ‘Consultation Notice of Redundancy’. The letter stated:

Dear Ettienne

Consultation ‑ notice of redundancy & voluntary redundancy program

Thank you for meeting with the South West Land and Sea Council Aboriginal Corporation (SWALSC) representatives, including myself, on 20 April 2021 (the Discussion).

As you know, in the Discussion we provided an update regarding the status of the native title functions of SWALSC. Further to communications to all SWALSC staff since 2015, and as expanded upon in our Discussion, the commencement of the South West Native Title Settlement (the Settlement) means that all native title claims have been resolved and the future acts regime ceased to apply on 13 April 2021. This means there is little native title work remaining for SWALSC.

SWALSC has explored alternatives to redundancy, including redeployment and retraining. At present, no roles are currently available within the organisation for the purposes of redeployment. To the extent retraining or relocation would support redeployment into an available role, this too would have been an option, however, in the circumstances, it is not.

In light of this, SWALSC can find no alternative other than to reduce the native title legal staff numbers. As such, we have had to now proceed to notify the individual employees who will become redundant.

As a result, your role within SWALSC as a native title lawyer has been identified as excess to the operational requirements of SWALSC and no longer required to be performed by anyone. This means that your role has been identified as redundant.

Voluntary redundancy ‑ expression of interest

Before any final decision is made, and in a further effort by SWALSC to reduce the negative effects associated with a redundancy, you are invited to participate in a volunteer[sic] redundancy program (VR Program).

If you wish to volunteer for a redundancy and nominate your participation in the VR Program, please contact Angela Jonucz via email on [email address] by no later than 14 May 2021 expressing your interest and requesting an indicative calculation of your severance and final termination pay out figure and other details associated with your impending departure from employment with SWALSC.

Please note that the VR Program is entirely voluntary; you are not required to partake in it.

Should you not express an interest in the VR Program, or we do not otherwise hear from you, we will proceed to engage in discussions with you around a compulsory redundancy process.

Other Ideas or suggestions?

We continue to welcome any ideas of suggestions about this matter; please provide, in writing, any further information or alternatives, which SWALSC should consider before making a final decision.

Please send your written response to Angela Jonucz, HR Manager, at [email address] or via hand delivery by no later than 14 May 2021.

Next steps

We will meet with you by or before 19 May 2021 to discuss the outcome of your VR Program expression of interest or, absent that, any proposals you have made and final decision regarding your position.

EAP

We realise this may be a challenging time. As such, we take this opportunity to remind you about SWALSC’s free and confidential EAP counselling service, which is available to all employees including you. If you wish to avail yourself of this service, please contact the EAP provider, People Sense, on (08) 9388 9000.

Any questions?

Should you wish to clarify any details in this letter, including in relation to your severance or termination entitlements, please contact Angela Jonucz, HR Manager.

35      The letter was signed by Mr Beven. Mr Armstrong was aware the letter was to be sent to Mr Van Tonder.

36      On the same day, Mr Beven and Ms Jonucz met with Mr Farrell. Mr Farrell requested that Mr Van Tonder attend the meeting with him as a support person. Mr Van Tonder saw Mr Beven provide Mr Farrell with a letter. The letter given to Mr Farrell was tendered into evidence as exhibit A5. It said:

Dear David

Your fixed term contract ‑ notice of early cessation of contract

Thank you for meeting with the South West Land and Sea Council Aboriginal Corporation (SWALSC), including myself, on 20 April 2021 (Discussion). Unfortunately the Discussion was terminated early as you left the meeting and have since not returned to the office.

As you know, in the Discussion we provided an update regarding the status of the native title functions of SWALSC. Further to communications to all SWALSC staff since 2015, and as expanded upon in our Discussion, the commencement of the South West Native Title Settlement (the Settlement) means that all native title claims have been resolved and the future acts regime ceased to apply on 13 April 2021. This means there is little native title work remaining for SWALSC.

SWALSC has explored alternatives to an early conclusion to your fixed term contract, however no such alternatives are available.

In light of this, and in accordance with your employment contract and the SWALSC Employee Collective Agreement 2018, we see your fixed term contract ceasing early with notice (or payment in lieu of notice).

Before a final decision is made concerning your cessation of contract date, we welcome any feedback, ideas or suggestions you may have that would minimise the negative effect of the early end to your contract. Please send any written feedback you may have to Angela Jonucz, HR Manager, [email address] or via hand delivery by no later than 14 May 2021.

Next steps

We will meet with you by or before 19 May 2021 to discuss your feedback and communicate final outcomes regarding your contract end date.

EAP

We realise this may be a challenging time. As such, we take this opportunity to remind you about SWALSC’s free and confidential EAP counselling service, which is available to all employees including you. If you wish to avail yourself of this service, please contact the EAP provider, People Sense, on (08) 9388 9000.

Any questions?

Should you wish to clarify any details in this letter please contact Angela Jonucz, HR Manager.

The voluntary redundancy process

37      Over the next few weeks, Mr Van Tonder and Ms Jonucz exchanged several emails about the voluntary redundancy program referred to in the letter of 6 May 2021. These emails became exhibit A2. The exchange commenced with Mr Van Tonder’s request of 10 May 2021:

…

In relation to the redundancy letter dated 6 May 2021 and in order for me to consider my options, can you please provide the “indicative calculation of the severance and final termination payout figure” detailing how the amount is arrived, tax implications and net pay, without delay.

…

38      Mr Van Tonder also said:

…

Be advised that my request for “indicative calculation of the severance and final termination pay out figure” must not be construed as an expression of interest to participate in a volunteer redundancy program.

As stated, the request has been made to enable me to consider all available options to me.

…

39      Later the same day Ms Jonucz provided a ‘VR indicative calculation’ which included a notice period of four weeks, severance pay of eight weeks, a calculation of unused annual leave and Mr Van Tonder’s leave loading balance as at 28 April 2021.

40      On 11 May 2021, Mr Van Tonder asked:

…

How does the VR indicative calculation compare to a “forced” redundancy payout? Is there any difference?

…

41      Ms Jonucz’s response was:

…

The same entitlements apply to VR as to compulsory redundancy, the only difference would be in the leave accrual.

…

42      On 13 May 2021, three days after receiving an indicative calculation of redundancy entitlements under a voluntary redundancy program, Mr Van Tonder emailed Ms Jonucz in the following terms:

…Further to the letter provided on 6 May 2021, headed “Consultation ‑ Notice of Redundancy & Voluntary Redundancy program” and your advice regarding payout under the Voluntary Redundancy Program (VR) and the compulsory redundancy process, I advise that I have opted to take the VR payout, as detailed in your earlier email, and not to engage in discussion on a compulsory redundancy process.

I accordingly await your letter detailing the final calculation of my severance and final payout figure and details associated with my impending departure from employment with SWALSC.

43      Ms Jonucz responded:

…Thank you for your email and your expression of interest in the volunteer redundancy program.

We will be in contact with you before 19 May 2021 to discuss the outcome of your acceptance of the volunteer redundancy.

44      On 17 May 2021, Mr Van Tonder emailed Ms Jonucz with an email that was marked ‘Without Prejudice’. It is not necessary to set out the full text of the email. It is fair to say that Mr Van Tonder resiled from his previous ‘acceptance’ of a voluntary redundancy if such was offered for acceptance. The 17 May 2021 email relevantly states:

…

…Note that my acceptance of the voluntary redundancy payout does not relate to your indicative figures per se (this is yet to be established) but rather the approach…

…My decision to accept a voluntary redundancy payout is in an endeavour to achieve an amicable outcome on equitable terms.

…While I am willing to accept a voluntary redundancy, it is most important that such acceptance must be on fair and agreed terms, such that it constitutes a genuine voluntary redundancy. Absent a genuine voluntary redundancy (the proposal in your letter dated 6 May 2021 does not provide for a genuine voluntary redundancy)…

…

I accordingly look forward to engage in constructive talks on the issue with the CEO.

…

45      It appears that Ms Jonucz understood Mr Van Tonder had not accepted a particular offer of voluntary redundancy or bound himself to voluntary redundancy, as on 18 May 2021, she advised him:

…

Ed [Mr Armstrong] will be in contact with you to re‑schedule a consultation meeting regarding the redundancy and you will have the opportunity to raise any concerns you might have with him.

…

46      At around this time, Mr Van Tonder received news that his mother‑in‑law had passed away. He had previously planned to take annual leave from 4 June 2021 to 21 June 2021. Because of the bereavement, he was also away from work from 25 May 2021 until 2 June 2021.

47      On 18 June 2021, whilst Mr Van Tonder was on annual leave, he received an email from Mr Armstrong containing the subject ‘RE: Voluntary Redundancy Separation Deed’. He read this email on his return to work on 21 June 2021. It relevantly concluded:

…

I look forward to seeing you upon your return to work on 21 June 2021. I will send you a calendar invitation for Monday 21 May[sic] 2021 for us to discuss the next stages in the process. You are welcome to bring a support person to this meeting if you wish.

…

48      Mr Van Tonder responded by an email marked ‘Without Prejudice’, requesting ‘…that the meeting be rescheduled for a later dated so that I can be afforded the time and opportunity to take further advice on your latest response, and more particularly, to afford me time to obtain advice from my accountant on tax issues…’.

49      He then received a meeting cancellation notice cancelling the meeting for 21 June 2021. The meeting cancellation notice was generated by Mr Armstrong without any other response to Mr Van Tonder’s email.

50      Three and a half hours after the cancellation notice was sent, Mr Armstrong sent an email to Mr Van Tonder in the following terms:

…

Thank you for your email.

We note that you have refused a lawful and reasonable direction to meet with us.

For the avoidance of any doubt, the SWALSC is compelling you to attend a meeting with you[sic] to discuss the consultation and redundancy process and the next steps in that process.

I will agree to reschedule this meeting to the following date and time ‑

Date ‑ Wednesday 23 June 2021

Time ‑ 2 pm

Location ‑ Birak, SWALSC.

I trust you will attend the meeting and failure to attend this meeting may result in disciplinary action. You may bring a support person to this meeting if you wish.

…

51      The email then set out ‘Indicative final termination payments’ in a table. It also said:

…As no final decision has been made, and no written notice of termination provided, these calculations are indicative at this stage.

…

The SWALSC is not obliged to provide indicative figures; we have done so in good faith, and to assist in future planning. I cannot provide you with superannuation or tax advice; this would not be appropriate. However, I am of the view that the indicative figures provided clearly articulate the nature and make‑up of the proposed payments.

With respect, the SWALSC have been in consultation with you since 20 April 2021 regarding this matter; this has afforded you ample time to take any professional advice you feel you need.

The other matters you have raised in your email can be discussed at the meeting.

In the meantime, I kindly request that you take care to ensure that the tone of any written communications remains professional and aligned with the values of the organisation.

Regards

Ed

52      Mr Armstrong was unable to explain his accusation that Mr Van Tonder had refused a lawful direction in circumstances where:

(a) The email inviting Mr Van Tonder to the meeting was headed ‘Voluntary Redundancy Separation Deed’ implying that it involved a voluntary negotiation process, rather than a mandatory direction to meet;

(b) Mr Van Tonder had not refused to meet, but rather had requested the meeting be rescheduled; and

(c) The meeting was cancelled by Mr Armstrong.

53      In cross‑examination it was put to Mr Armstrong that his email was heavy‑handed. His evidence was:

…I would like to ‑ I ‑ don’t have notes or the reasons why and I’m sure that is the ‑ I can’t recall the reason why I cancelled the meeting on the Monday.

But that could possibly be the reason why and I would have preferred to look at my notes for the day to confirm why I cancelled that meeting if it was because Mr ‑ because of Mr Van Tonder’s email. I can’t confirm that at the moment.

…

KEMP, MR: Well, what else could it have been?---It could have been other work purposes, could have been other work priorities.

KEMP, MR: But that ‑ if you’d had other work priorities, he would not have refused - - -?---Yes.

- - - to have met?---That is correct. Well, I don’t know unless he couldn’t make the meeting, I can’t recall.

54      Plainly, Mr Armstrong’s accusation that Mr Van Tonder had refused a lawful direction was misplaced, wrong and unfair to Mr Van Tonder. Mr Armstrong did no credit to himself by not acknowledging this to be the case when given the opportunity.

Termination of Mr Van Tonder’s employment

55      Mr Van Tonder and Mr Armstrong met on 23 June 2021. At this meeting, Mr Van Tonder was given written notice of the termination of his employment by reason of redundancy. The letter stated that the termination would take effect from 25 June 2021.

56      At the date of the hearing, Mr Van Tonder was 60 years of age. He had applied for 24 positions and been invited to attend two interviews. He had not been able to secure alternative employment as a lawyer and remained unemployed.

Was there a genuine redundancy?

57      The parties each led a significant amount of evidence concerning the projected legal work that SWALSC would need to have performed after June 2021. The nature and volume of the forecast work was a key area of dispute between the parties. Mr Van Tonder maintained that there was no genuine redundancy at the time of his dismissal because SWALSC required substantial legal work to be performed for the foreseeable future.

58      SWALSC, on the other hand, maintained that after careful consideration and evaluation of the information that was available concerning existing and future legal work, it was reasonable to have determined that the quantity of the remaining legal work was limited and much of it was administrative in nature.

59      Mr Van Tonder had been working for SWALSC for nine years and 10 months in total and had overseen the legal team’s functions for almost two years as at May 2021. He had detailed knowledge of the nature and volume of the legal team’s work. He was undoubtedly well placed to make sound projections of the future work involved.

60      It was common ground that on or around 11 May 2021, Mr Armstrong requested a breakdown of the work the legal team was performing, and that Mr Van Tonder responded to this request by sending him a table of legal work that was prepared by Mr Van Tonder and Ms Fennelle. According to Mr Van Tonder, the table demonstrated:

(a) a significant amount of work would be ongoing for a number of years, at least until the NRC’s have built capacity to perform these works themselves.

(b) While the “native title work” started diminishing from as early as 2019, a substantial amount of legal work of a “native title” nature remained to be performed, particularly in relation to land access and native title compensation agreements, which require ongoing legal management and oversight.

(c) Legal work, particularly legal compliance work, associated with NSHAs and hybrid Aboriginal heritage protection agreements increased significantly since the implementation of a new Aboriginal heritage protection regime in 2015. New agreements were and still [are] being entered into with proponents on a daily basis it was my function to ensure that each agreement met the legal standards before giving approval for execution by the respondent.

(d) The legal work associated with NSHAs, [A]boriginal heritage and existing native title compensation agreements, needed to be performed for an indefinite period until such time as the NRCs have capacity to take on the work themselves. Based on existing trend, it is expected that approximately 200 new NSHAs will be concluded each year. Legal compliance work associated with each agreement will vary in scope and complexity depending on the intended activities proponents propose to undertake. The annual volume of legal compliance work associated with Aboriginal heritage alone would, at a minimum, require the services of a full-time legal officer.

(e) Additionally, the body of legal work associated with the assignments to the NRCs, including preliminary work in preparation for eventual assignment, the drafting, negotiation and settlement of legal instruments for some 800 agreements and eventual assignments alone, would, by my estimation, take in excess of 12 months once the work commences. These works will include but are not limited to:

(i) Verifying the status of each mining tenement, the subject of native title agreements and NSHAs;

(ii) Verifying current holders of mining tenements and, in case of a change in tenement holders, pursue necessary legal instruments with new tenement holders that would facilitate the ultimate assignment to the NRCs;

(iii) Drafting agreement specific legal instruments to facilitate the assignments;

(iv) Negotiating and setting the content of legal instruments with existing/replacement contracting parties eg. government departments, instrumentalities, industry members, mining companies (proponents).

(v) Negotiating replacement agreements with proponents in respect of mining tenements covered by agreements that are non-compliant with the newly adopted Aboriginal heritage regime that is applicable in the South West region of Western Australia;

(vi) Providing legal education and advice to each NRC on the administration and obligations under each agreement from early on in the process and on an ongoing basis;

(vii) Negotiating service agreements between SWALSC and each NRC in terms of which SWALSC will be required to perform the legal and heritage functions and obligations associated with all agreements until such time as the NRCs have sufficient capacity to undertake the works themselves.

61      Mr Armstrong, on the other hand, said in his evidence that he considered the table exaggerated the amount of legal work remaining to be performed. He concluded this was a deliberate ‘…over exaggeration of work for people to try and keep their jobs’. On his assessment:

(a) The remaining litigation for the native title claims was being conducted by external lawyers, Clayton Utz, with the input from the legal team. It was general input and would be minimal going forward.

(b) The assignment of 50 Native Title agreements to SWALSC needed to be done, however they were in progress with completion anticipated by 30 June 2021.

(c) The assignment of Native Title agreements from SWALSC to the regional corporations would not be required to be completed until the regional corporations were established, which was to occur, at the earliest, from around mid 2022. This work was mainly administrative and the proponents receiving the assignments were familiar with the process and would not need significant explanation or assistance. Additionally, all that was required to assign the agreements was a deed of assignment which only changed the name of the relevant parties and did not impact upon or alter the substantive rights under the NTAs.

(d) The assignment of standard heritage agreements from SWALSC to regional corporations was required, but in Mr Armstrong’s view was a straight‑forward administrative process which could be performed by a legal administration assistant, and the signing of a short deed of variation.

(e) The maintenance of native title agreements and negotiating voluntary agreements could be performed by SWALSC with little input from the legal team. Negotiating new agreements was not something that the SWALSC would undertake during the transition; this would be undertaken by the regional corporations going forward.

(f) Finally, Mr Armstrong regarded the standard heritage agreement due diligence and drafting/execution of those agreements as an administrative process which could be performed by a legal administrative assistant without extensive legal input.

62      SWALSC tendered into evidence, through Mr Armstrong’s affidavit, a lengthy document described as an Agreement Register. Why SWALSC sought to rely on this document in these proceedings was not clear. Counsel for SWALSC cross‑examined Mr Van Tonder on it, culminating in the following exchange:

FRENCH, MR: …First of all ‑ and with no criticism of yourself being intended whatsoever, it’s fair to say, this document’s not accurate?---It is not.

FRENCH, MR: It is not. Secondly, you told the Commission before, there’s nothing in this document that indicates that it is any more recent than October – November 2020. Given those two things ‑ given you’ve given evidence on both of those two matters, this document can’t, in any way, indicate to the Commission the quantity or quality of nature of the legal work required to be done with the respondent in June 2021?---Absolutely correct, yes, it doesn’t show anything.

63      Nevertheless, Mr Armstrong’s evidence was that he carefully considered the 20 May 2020 table provided by Mr Van Tonder in light of the other information he had gathered from discussions with Mr Beven and a former CFO of SWALSC, Mr Malcolm Firth. He conceded that there was some legal work that needed to be undertaken. In particular, there were outstanding settlement actions relating to the South West Native Title Settlement, but an external law firm was managing these. He also conceded that some native title agreements or mining agreements needed to be assigned, and NSHAs to be entered into. But the ‘pure’ native title work was diminishing significantly and would end imminently.

64      On the basis of all of the information that he gathered; he formed the view that the work identified in the table of legal work could be performed by a single lawyer working a full‑time working week.

65      Further, Mr Armstrong’s unchallenged evidence was that since the date of termination and as at 28 January 2022, SWALSC had employed only one lawyer, a SLO, on a full‑time basis. The sole lawyer had performed the duties required by SWALSC, working predominantly within an ordinary full‑time working week.

66      In referrals to the Commission under s 29 of the IR Act, the ultimate issue for determination is whether the dismissal of an employee was harsh, oppressive or unfair. The question of whether a termination of employment occurred because of genuine redundancy is not determinative of this ultimate issue: Sealanes (1985) Pty Ltd v Foley [2006] WAIRC 04110; (2006) 86 WAIG 1239 at [31]. However, where the employer defends the claim on the basis that dismissal was the result of a justifiable reason based on genuine redundancy, and it is disputed, it will ordinarily be necessary for the Commission to decide whether the termination was the result of a genuine redundancy: Sealanes at [31].

67      Whether a dismissal has occurred because of redundancy involves findings of fact: Sealanes at [33]. In Sealanes, the Full Bench described what a redundancy is by reference to statements by Beasley J in Quality Bakers of Australia v Goulding [1995] IRCA 285; (1995) 60 IR 327 and Ryan J in Jones v Department of Energy and Minerals [1995] IRCA 292 to the effect that:

(a) a redundancy arises where an employer has labour in excess of the requirements of the business or where the employer no longer wishes to have a particular job performed or where the employer wishes to amalgamate jobs;

(b) it is not necessary for the work to have disappeared altogether;

(c) organisational restructuring may result in a position being abolished and the functions of some of them being given to another or split amongst others;

(d) a redundancy may occur where an employer rearranges their organisational structure by breaking up the functions attached to a single position and distributes them to the holders of other positions, including newly created positions; and

(e) the critical question is whether the holder of the former position has, after the reorganisation, any duties to discharge. If not, their position has become redundant.

68      At [42]‑[43] of Sealanes, the Full Bench identified errors in the reasoning at first instance on the basis that the Commissioner’s focus was on whether there was sufficient work for employees to have done subsequent to their dismissal rather than considering whether there was a restructure, such that the position of the employees no longer remained.

69      Counsel for SWALSC submitted that there need be some objectively reasonable basis for a redundancy in order for it to be found to be genuine. I do not understand the authorities require that, that in order for a redundancy to be genuine, the decision to abolish a position must be objectively reasonable. To make such an assessment would inevitably require the Commission to have a detailed understanding of the business, its financial position, its strategic goals and the market in which it operates. Such a requirement would call upon the Commission to effectively stand in the employer’s shoes.

70      Accordingly, in resolving the issue of whether there was a genuine redundancy, I do not consider I am required to make findings concerning what legal work remained to be performed, either as to its volume or its nature. Nor do I need to determine whether the decision to make positions redundant was objectively reasonable. I must find that a decision to reduce the size of the legal team was in fact made, and that by giving redundancy as a reason for dismissal, that reason was not an artifice or a sham. In other words, I must simply find that the redundancy reason is ‘genuine’.

71      The pertinent enquiry, then, is whether at the time Mr Armstrong made the redundancy decision, the decision was genuine and not capricious or arbitrary. I accept Mr Armstrong’s evidence that his decision was based on an assessment of the information that he had gathered, and his own conclusions drawn from that information. His assessment was not predetermined or merely the result of implementing recommendations Mr Beven had made to him. The information available to him included the uncontested fact that SWALSC was in a period of significant transition emerging from its role in achieving the South West Native Title Settlement to preparing for a role as a possible CSC. That SWALSC would ultimately become a CSC was not certain, but in any event the future would involve a significant re‑organisation and reduction in revenue.

72      There was a suggestion that Mr Armstrong’s assessment of the volume of work was flawed because he was not himself legally trained, and had insufficient experience within the organisation to make such an assessment. I do not consider either of these factors detract from the genuineness of his ultimate decision. He was not required to be legally qualified to be CEO, yet decisions regarding the structure of the legal team fell to him as CEO. I consider that in making the assessment of the future structure of the legal team, that is, that the legal team would in future only require one lawyer and one legal assistant, Mr Armstrong did the best he could in the circumstances.

73      There was also a suggestion that the relevant decision was not that of Mr Armstrong but of Mr Beven, being the decision Mr Beven made and communicated to the legal team on 6 May 2021. The effect of the submission was that Mr Armstrong was merely going through the motions and that the decision to effect redundancies had already been made as at 20 April 2021. If that is the case, it would follow that the decision was made without Mr Armstrong having undertaken any genuine consultation or any genuine assessment of SWALSC’s business needs.

74      Nothing before the Commission undermines Mr Armstrong’s evidence that the redundancy decisions were made by him in late May 2021, without him feeling bound to follow Mr Beven’s recommendation.

75      For the above reasons, I find that the restructuring of the legal team by reducing the number of SLOs from two to one and abolishing the role of PLO was the result of Mr Armstrong’s genuine assessment of SWALSC’s future business needs. Accordingly, the dismissal was a case of genuine redundancy.

Did deficiencies in consultation render Mr Van Tonder’s dismissal unfair?

76      The conclusion that Mr Van Tonder’s dismissal resulted from a genuine redundancy is not the end of the matter. A dismissal may be harsh, unjust or unreasonable, notwithstanding a genuine redundancy situation. In Garbett v Midland Brick Co Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 893, Heenan J said at [77]:

Other examples of harsh, unjust and unreasonable or oppressive dismissals, notwithstanding a genuine redundancy, have been found where the employee is provided with no meaningful information about the reasons for the termination and no discussions are held with him or her with regard to the termination - Gibbs v City of Altona [1992] FCA 374; (1992) 37 FCR 216; where there had been no exploration of possible alternatives with the applicant before the ultimate step of termination in order to remove the need for dismissal - Gregory v Philip Morris Ltd (1988) 80 ALR 455 at 473; where there is a failure to apply fair and objective selection criteria in determining which employee is to be made redundant - Budget Couriers Equity Management v Beshara (1993) 5 VIR 173; where there has been no proper investigation of the facts or consultation with the employee about those facts and their consequences - Byrne & Frew v Australian Airlines Ltd [1994] FCA 888; (1994) 47 FCR 300 per Beaumont and Heerey JJ at 63 and Budget Couriers Equity Management v Beshara (supra); and where there has been a failure to provide adequate notice - Budget Couriers Equity Management v Beshara (supra). In the category of cases where it is alleged the harsh, oppressive or unfair feature of the termination, notwithstanding a redundancy, is due to the employer's failure to apply fair and objective selection criteria in determining which employee is to be made redundant, the onus will be upon the employee to show that the selection criteria adopted were unfair: Quality Bakers of Australia Ltd v Goulding; Wickham v Quality Bakers of Australia Ltd (1995) 60 IR 327 per Beazley J at 337 and Gromark Packaging v Federated Miscellaneous Workers Union of Australia, WA Branch (supra).

77      Section 41 of the Minimum Conditions of Employment Act 1993 (WA) is also relevant. It provides:

41. Employee to be informed

(1) Where an employer has decided to —

(a) take action that is likely to have a significant effect on an employee; or

(b) make an employee redundant,

the employee is entitled to be informed by the employer, as soon as reasonably practicable after the decision has been made, of the action or the redundancy, as the case may be, and discuss with the employer the matters mentioned in subsection (2).

(2) The matters to be discussed are —

(a) the likely effects of the action or the redundancy in respect of the employee; and

(b) measures that may be taken by the employee or the employer to avoid or minimize a significant effect,

as the case requires.

78      In Quality Bakers of Australia, Beazley J stated:

The need for consultation with employees and, if applicable, the employees’ union, in the case of workplace change or restructuring, has consistently been recognised as an essential element of fairness in the relationship between employee and employer…

79      His Honour cited a passage of Wilson J in Federated Clerks’ Union of Australia v Victorian Employers’ Federation [1984] HCA 53; (1984) 154 CLR 472 at [13]:

…Consultation between employers and employees, preceded by the distribution of adequate information, is not only sensible but essential if commerce and industry are to meet the challenge of progress in a spirit of harmony and with some regard for human dignity.

80      Ultimately the purpose of consultation is to ensure the impact of redundancies is, as far as is humanly possible, minimised and the selection process carried out fairly: see Corkery v General Motors Holden Limited (1986) 53 ASIR 531 at [538].

81      It has been recognised that an absence of exploration of other options, or a failure to make enquiries as to alternative work which might have been found for the employee, means there has been a failure to consult: see Scott v Westmeats Pty Ltd (Formally National Cold Storage) [1994] IRCA 34 and Carydias v the Greek Orthodox Community of Melbourne and Victoria [1995] IRCA 150.

82      The ultimate test is whether the lack of consultation, the procedure followed, or the quality of the consultation is such that the employee has been denied a fair go all round.

83      Mr Van Tonder bears the onus of establishing that there was a lack of meaningful consultation.

84      Mr Van Tonder submits that SWALSC failed to consult with him properly prior to making a final decision on the redundancy because:

(a) he was faced with a fait accompli from the first meeting in April 2021;

(b) he was given different reasons for the termination of his employment; and

(c) he was denied the opportunity to make representations about the need to reduce staff numbers, selection of staff to be made redundant, and the availability of redeployment: particularly to be retained as SLO or Corporate Lawyer.

85      Counsel for Mr Van Tonder submits that consultation is not an empty term and should not be treated perfunctorily or as a mere formality. He relies on Palmer v Forrest Personnel Inc [2016] WAIRC 00866; (2016) 96 WAIG 1529 as authority for the proposition that consultation must provide a genuine opportunity to influence the outcome of the proposal to be implemented. He also says that in order to be meaningful, consultation needs to include full disclosure of the reasons for the decision to make positions redundant and a meaningful discussion of possible steps to avoid or mitigate the effect of the redundancy.

86      Mr Van Tonder submits that consultation should also involve an explanation of the selection process that will be used to determine which employees will be dismissed, an explanation of what steps have been taken to identify redeployment opportunities, an opportunity for employees to raise matters of concern, and genuine consideration of matters raised by affected employees.

87      SWALSC did not cavil with these propositions but submitted that the evidence showed that it had adequately and extensively consulted with Mr Van Tonder. SWALSC says consultation occurred in the course of at least four meetings between Mr Van Tonder and Mr Armstrong, that the consultation was substantive in nature and that Mr Armstrong gave due and genuine consideration to the feedback he received from Mr Van Tonder, including the feedback concerning the volume of legal work.

Evidence about consultation

5 May 2021 discussion

88      On 5 May 2021, Mr Van Tonder met with Mr Armstrong briefly in Mr Van Tonder’s office to discuss the work the legal team was performing. During this meeting, Mr Van Tonder advised Mr Armstrong that all the lawyers, including himself, had been told that their positions were redundant. Mr Armstrong asked whether they had received letters. Mr Van Tonder said no, and Mr Armstrong responded, ‘you should get it soon’, or words to that effect.

89      Mr Armstrong’s evidence was that the 5 May 2021 meeting was to discuss matters generally relating to Mr Van Tonder’s position, the legal team as a whole, and to book a meeting for Monday, 10 May 2021 to discuss these matters in more detail.

6 May 2021 meeting

90      On 6 May 2021, Mr Van Tonder was called into a meeting with Mr Beven and Ms Jonucz, which lasted no longer than five to10 minutes. At this meeting, he was provided with the letter headed ‘Consultation ‑ notice of redundancy & voluntary redundancy program’ dated 6 May 2021. Mr Beven explained the nature of the letter and highlighted the option to participate in a voluntary redundancy program, in which case Ms Jonucz would provide indicative payout figures and give advice on the tax implications. Mr Beven asked if Mr Van Tonder had any questions, and Mr Van Tonder said no.

10 May 2021 meeting

91      Mr Van Tonder met with Mr Armstrong again on 10 May 2021, at which time he gave him a broad overview of the nature of work that the legal team performed. During this meeting, Mr Armstrong suggested that a meeting be set up with the legal team to enable him to get an idea of what work was being performed by the different staff members in the different groups. A meeting was scheduled for 12 May 2021.

92      Mr Armstrong’s evidence was that during the 10 May 2021 meeting, Mr Van Tonder also provided Mr Armstrong with a background to his various concerns about the process implemented by Mr Beven and the proposed redundancy. These concerns were focussed on the possible loss of jobs and that the lawyers had found Mr Beven a challenging personality to engage with.

93      Mr Armstrong’s evidence was that he assured Mr Van Tonder that SWALSC was still consulting with him and the legal team, that no final decision had been made about whether and which roles would be made redundant, and that Mr Armstrong would continue making his own inquiries and assessment. Mr Van Tonder denies such assurances were given.

94      Mr Armstrong agreed that the meeting scheduled for 12 May 2021 was for the purpose of discussing the work that needed to be performed by the legal team.

12 May 2021 legal team meeting

95      Mr Armstrong, Ms Fennelle, Mr Farrell and Mr Van Tonder attended the meeting on 12 May 2021. Mr Van Tonder’s version of the meeting was that the lawyers explained to Mr Armstrong the nature of work being performed by the legal team. Mr Armstrong requested that they compile a list of all the legal work yet to be performed with estimated timeframes required to complete the tasks.

96      Mr Armstrong’s version was that all the lawyers expressed their opinions in relation to the redundancy process, claimed there was sufficient legal work to retain them all and that it was a risk to SWALSC to make them redundant. They did not provide specific information or details in support of these assertions.

97      Mr Armstrong said that he advised the lawyers that in his review of the work on foot and the work to be done, it appeared that the volume of legal work was reducing significantly, and that this was set to continue. He says he made it clear that it appeared to him that there was not enough legal work to retain them all in their current roles. His evidence was that there was discussion at the meeting about the ongoing legal work, but not what structure was required to support the ongoing legal work. Other than that, the business needed to change.

98      Mr Armstrong’s evidence‑in‑chief was that the lawyers queried the potential for redeployment. He advised that the only opportunity for redeployment in the near future was for a Finance Officer role with a salary level of around $65,000 per annum. The lawyers expressed that they were not interested in this position.

99      In cross‑examination, Mr Armstrong departed from his evidence‑in‑chief, saying that he referred not only to the Finance Officer role, but also a HR Officer role. He mentioned only those roles even though by that time, he was in fact, contemplating the need for either one legal officer or outsourcing the remaining legal work.

100   Mr Van Tonder denies any discussion occurred about redundancy. He denies Mr Armstrong gave any indication that he had or would be assessing the legal work to determine what resourcing was needed in the future. He also denies Mr Armstrong mentioned any roles for possible redeployment.

25 May 2021 meeting

101   In Mr Armstrong’s cross‑examination, it emerged that by around 20 May 2021, he had formed the view that the restructured legal team appeared to only require one full‑time equivalent lawyer to continue functioning. At that time, he had not considered which role. However, by 24 May 2021, he had made a definite decision to retain one legal officer and that it would be the fixed term Senior Legal Officer, Mr Farrell.

102   Mr Van Tonder’s evidence was that on 25 May 2021, he met with Mr Armstrong to discuss voluntary redundancy. At the commencement of the meeting, Mr Armstrong handed him a letter headed ‘Consultation ‑ next steps’. Mr Armstrong then left the room, allowing him time to read the letter.

103   Mr Armstrong returned about 10 minutes later and asked Mr Van Tonder whether he wanted to accept a voluntary redundancy.

104   Mr Armstrong’s evidence was that during this meeting, Mr Van Tonder repeatedly expressed his opinion that this was not a genuine redundancy but did not clearly articulate why a redundancy of his role was allegedly not genuine. He also recalled that Mr Van Tonder ‘refused’ to provide a proposal for his acceptance of a voluntary redundancy, which would imply that Mr Armstrong asked Mr Van Tonder for a proposal. Mr Armstrong also recalled that Mr Van Tonder said that he will take any redundancy decision to court.

105   Mr Van Tonder recalled the discussion was about what was a genuine voluntary redundancy. Mr Armstrong asked him what he considered to be a genuine voluntary redundancy, to which he responded, ‘…I wouldn’t know, it’s the first time that I find myself in this situation…’. According to Mr Van Tonder, Mr Armstrong then referred to himself as having been made redundant before and having been offered three or four weeks’ severance pay. Mr Van Tonder asked him what would happen if he did not accept a voluntary redundancy. Mr Armstrong’s response was that SWALSC would ‘…immediately proceed with a compulsory redundancy…’, he’d be paid notice, and termination would take effect earlier than it would under a voluntary redundancy situation.

106   Mr Van Tonder left the meeting at approximately 3.30 pm and went home.

107   Notably, this meeting followed a few days after Mr Van Tonder had provided Mr Armstrong with the table setting out the legal work to be performed. When sending this table, Mr Van Tonder’s email noted that the table was not an accurate reflection of the ‘true picture’ and requested further discussion about it. Yet Mr Armstrong conceded that he did not discuss the table with Mr Van Tonder at any time.

108   It is also notable that by this time, Mr Armstrong had made a definite decision to retain one legal officer position, but he made no reference to this decision during the meeting with Mr Van Tonder. He attempted, ineffectively, to explain this omission:

…I didn’t think it was necessary at that time. We had confidentiality matters to be raised, also David [Mr Farrell] was on a fixed term contract and it was a continuity of his contract.

23 June 2021 meeting

109   Mr Van Tonder’s evidence was that he was unwell and so did not attend work on 22 June 2021 and 23 June 2021. However, because he had been directed to attend a meeting with Mr Armstrong on 23 June 2021, he did so. At that meeting, he was given a letter formally notifying him of the termination of his employment with effect from 25 June 2021. His evidence was that as he left this meeting, Mr Armstrong remarked ‘Now you are going to take me to court’. He did not respond but left the room and headed home.

110   Mr Armstrong recalled that Mr Van Tonder asked general details regarding his final day of employment, whether he would be paid his notice and so on. His version of the parting remarks was that it was Mr Van Tonder, not he, who made a comment to the effect of ‘I’ll see you in court’.

Conclusions in relation to consultation

111   The differences between the parties’ respective evidence in relation to consultation is mostly a difference in emphasis, as opposed to a difference in substance concerning the events and processes. There are only three key factual differences in the respective versions involving topics Mr Armstrong says he discussed in the course of consultation and which Mr Van Tonder denies were discussed.

112   First, Mr Armstrong says he informed the legal team on 12 May 2021 that his review of the work on foot led him to the conclusion that the volume of legal work was reducing significantly, that he made it clear there was not enough legal work to retain them all in their current roles, but he had not yet made a final decision.

113   Second, Mr Armstrong says he discussed with the legal team the potential opportunity for redeployment in the roles of Finance Officer and HR Officer.

114   Mr Armstrong’s version in relation to the 12 May 2021 meeting was not put to Mr Van Tonder in cross‑examination. Further, Mr Van Tonder and Mr Armstrong were not the only parties present at the 12 May 2021 meeting. Ms Fennelle and Mr Farrell were also present. Mr Farrell remains an employee of SWALSC. It might have been expected that, given the factual dispute between the parties on this issue, SWALSC might have called Mr Farrell to corroborate Mr Armstrong’s account. I note that no Jones v Dunkel [1959] HCA 8; (1959) 32 ALJR 395, nor any Browne v Dunn (1893) 6 R 67 submission was made by any party, nor was I invited to draw adverse inferences.

115   However, Mr Armstrong’s departure from his evidence‑in‑chief in the form of the additional evidence that he had discussed a HR Officer role, has significance, in my view. The issue of the adequacy of consultation and the absence of meaningful discussion about redeployment is a central issue in this case. There can be no doubt that Mr Armstrong was aware of the importance of his evidence as to what was discussed on 12 May 2021 to the outcome. The change in his evidence on this topic reflects adversely on the reliability of his evidence. Therefore, I prefer Mr Van Tonder’s version of the 12 May 2021 meeting. I find that Mr Armstrong did not advise the lawyers that he had not yet decided about redundancies or was still assessing resourcing needs. I find that he did not discuss redeployment opportunities.

116   Finally, there is the dispute as to whether the substance of what was discussed during the 25 May 2021 meeting was the possibility of voluntary redundancy or the genuineness of the redundancy decision more specifically.

117   Again, Mr Van Tonder’s version of the 26 May 2021 meeting was not challenged by SWALSC’s counsel during cross‑examination. His version was more comprehensive than Mr Armstrong’s version. It is also consistent with Mr Van Tonder’s email to Mr Armstrong of 2 June 2021, which referred to the meeting as being ‘Without Prejudice’ and referred to a letter being prepared setting out SWALSC’s voluntary redundancy proposal. Further, Mr Armstrong’s implicit criticism of Mr Van Tonder’s ‘refusal’ to provide a proposal for acceptance of a voluntary redundancy reflects a lack of objectivity in his evidence. Therefore, I prefer Mr Van Tonder’s account, which is that the substance of the discussion centred on whether the parties could reach an agreement on a voluntary redundancy, not Mr Van Tonder’s concerns about redundancy more generally or whether termination would be a genuine redundancy.

118   At the end of the day, resolving these factual disputes takes matters only so far. The quality of the consultation was not as good as SWALSC attempted to portray it.

119   What is conclusive, in my view, is the uncontested fact that Mr Van Tonder was not informed that SWALSC would retain a legal position, what that legal position was, or how the selection of the legal position would occur.

120   By 24 May 2021, Mr Armstrong had determined that the volume of legal work that was required to be performed could be performed by a single lawyer at SLO level. He had also determined that the fixed‑term position filled by Mr Farrell would be the position that was retained while the other two legal positions would be made redundant.

121   While there was an early indication by Mr Beven that SWALSC would retain a corporate lawyer at a position well below Mr Van Tonder’s level, Mr Armstrong’s evidence was that he did not consider himself bound by Mr Beven’s thinking and that he formed his own assessment. At all times from the date of his meeting with Mr Beven and Ms Fennelle on 4 May 2021 until the date of termination, Mr Van Tonder’s understanding was that all lawyers’ roles would be made redundant and that there was no opportunity for redeployment in a legal position. He was never given an opportunity to even raise the possibility of him filling the remaining legal position.

122   The failure to have communicated this information to Mr Van Tonder must mean that the consultation deprived him of a fair opportunity to put a case in relation to redeployment. He was effectively misled in relation to the true position. The consultation cannot be said to have been meaningful or to have afforded Mr Van Tonder a fair go all round. Therefore, I find the dismissal was unfair.

Was Mr Van Tonder’s selection for redundancy unfair?

123   Termination in circumstances of a genuine redundancy may be harsh, oppressive or unfair due to the employer’s failure to apply a fair and objective selection criteria in determining which employee is to be made redundant. The onus is on the employee to show that the selection criteria adopted was unfair: Midland Brick at [77], citing Quality Bakers Australia and Gromark Packaging v The Federated Miscellaneous Workers Union of Australia, WA Branch (1993) 73 WAIG 220.

124   SWALSC’s position in relation to this issue was that key factors in Mr Armstrong’s decision to retain Mr Farrell in the role of SLO, rather than offering the role to Mr Van Tonder, were that, at the relevant time:

(a) Mr Van Tonder had indicated he would accept a voluntary redundancy; and

(b) the role was occupied by Mr Farrell, who was engaged on a fixed‑term contract in circumstances where, at the time, the future status and budget of SWALSC was uncertain, and it was not clear that even Mr Farrell would be required on an ongoing basis.

125   As to the first factor, Mr Armstrong’s evidence was to the effect that at the time he made the decision, it was clear to him that Mr Van Tonder had not accepted a voluntary redundancy, nor had he indicated he would accept a voluntary redundancy. Indeed, no other conclusion could reasonably be arrived at on the correspondence before the Commission, particularly Mr Armstrong’s letter to Mr Van Tonder dated 21 June 2021 in which he states, ‘…I confirm that you have not, to date, expressed interest in accepting a VR’. Mr Van Tonder had simply engaged in negotiations to explore whether a mutual agreement could be reached for his departure from SWALSC.

126   Even if Mr Van Tonder had expressed interest in participating in a voluntary redundancy, in circumstances where I have found he did so without accurate information about possible opportunities for redeployment in a legal position, means that such expression of interest should not be treated as a good reason for excluding Mr Van Tonder from consideration for redeployment.

127   Of course, that Mr Van Tonder had involvement in a voluntary redundancy expression of interest process, whereas Mr Farrell did not, is because Mr Farrell, as a fixed‑term employee, had no redundancy entitlements. Mr Farrell was not invited to participate in voluntary redundancy. There was no option for him to have done so. This basis for differential treatment of Mr Van Tonder and Mr Farrell could not logically be maintained.

128   As to the second factor, Mr Armstrong conceded in cross‑examination that he did not see Mr Van Tonder as a contender for the SLO role. This is despite his evidence that Mr Van Tonder could have performed all of the duties and responsibilities of the SLO role. When asked whether he had considered Mr Van Tonder to be a contender, he would have spilled the role, his either circular or evasive answer was:

…I didn’t consider the applicant to be a likely - likely senior legal officer because I made a decision not to spill the role because we had a senior legal officer that could perform the duties that was already in the position.

KEMP, MR: Okay. But if you had thought of him as a SLO you would have likely have spilled the role. Have a look at paragraph 96 of your - - -?---So there was no - - -

You say:

“If you ‑ if Ms Fennell had not accepted the voluntary redundancy and there were multiple SLOs that had to be considered, I would likely have spilled the role.”

?---But there was no reason for me to consider that.

KEMP, MR: But there were two - - -?---No, there was no reason for me to consider that because we had Mr Farrell who was on a fixed term contract.

129   As I understand Mr Armstrong’s evidence, he was mindful that even though one legal position was going to be needed in the short to medium term, ultimately, even that position would be made redundant. However, when it was to be made redundant was uncertain and would most likely fall within a future financial year. SWALSC had allocated funds in its budget to pay for redundancies in the 2020/2021 financial year but future funding for redundancies in any subsequent financial year depended upon federal agency funding. Retaining Mr Farrell in a fixed‑term capacity therefore afforded greater ‘flexibility and certainty’ in that no future redundancy payments would need to be budgeted when his employment eventually came to an end.

130   There was no evidence before the Commission of Mr Farrell’s qualifications or experience relative to Mr Van Tonder’s. It is clear, however, that his length of service with SWALSC was shorter than Mr Van Tonder’s, with Mr Farrell having commenced in 2019. A comparison of his job description also reveals that his scope of duties for SWALSC were less extensive than Mr Van Tonder’s. Finally, and most significantly, his status was fixed‑term as opposed to Mr Van Tonder’s status as a permanent ongoing employee.

131   When Mr Armstrong asked whether there was anything preventing SWALSC from offering Mr Van Tonder the SLO role on a fixed‑term basis, Mr Armstrong said it would probably have had to ‘make the applicant redundant and then changed to a fixed‑term contract’.

132   It was common ground at the hearing that SWALSC was bound by the redundancy provisions contained in the SWALSC Collective Agreement 2018. Clause 47 deals with redundancy. It is silent in relation to criteria for selection of employees for redundancy. It contains obligations in relation to payment of redundancy or severance pay, Job Search entitlements, notice periods and consultation. Most notably, cl 47.10.1(d) states that the clause (and the obligations contained in it) are exempted and do not apply to:

Employees engaged for a specific period of time or for a specific task or tasks;…

133   Therefore, there was no dispute that the redundancy obligations and rights contained in cl 47 did not apply to Mr Farrell. Indeed, for this reason, Mr Armstrong considered retaining Mr Farrell in preference to Mr Van Tonder.

134   The exclusion of fixed‑term contract employees from redundancy entitlements is standard in industrial instruments and statutes dealing with redundancy. The current provisions of s 123 of the FW Act provides that Division 11 including the provisions for Redundancy Pay, do not apply to ‘an employee employed for a specified period of time, for a specified task, or for the duration of a specified season’. This exclusion has carried forward from the Termination, Change and Redundancy Case (1984) 8 IR 34. The application by the Australian Council of Trade Unions for redundancy standards that was the subject of that decision excluded from its scope fixed‑term employees. While the Australian Conciliation and Arbitration Commission did not give express reasons for the exclusion of this category of employees, severance pay is essentially to compensate employees for the loss of a reasonable expectation of continued employment and for the need to adjust to new circumstances, re‑organise their lives and seek new employment: see Termination, Change and Redundancy Case at [50]:

…

We believe that, subject to capacity and good conduct, it is reasonable for employees and employers to have a proper and reasonable expectation of continued employment after a significant period of time which increases with the length of employment. Further, in our opinion the traditional week’s notice of termination included in federal awards provides no practical opportunity for those who have been in a particular job for some time to adjust to the proposed change in circumstances, re‑organize their lives and seek alternative employment…

We are aware that to some extent the two factors of age and length of service overlap and so far as length of service is concerned there is also an overlap with the provision of long service leave which is granted for similar reasons. Nevertheless, we have taken both these factors, and the need to adjust to the change in circumstances on termination of employment, into account in awarding increased notice of termination of employment…

135   This history may not amount to an industrial principle that fixed‑term employees should be selected for redundancy in preference to permanent employees. However, it highlights that in reality, permanent employees have a degree of expectation of ongoing employment, which, by definition, is not present for fixed‑term employees. It follows that a permanent employee’s reasonable expectation of ongoing employment should be a factor in managing redundancy processes and determining selection for redundancy where the choice for selection is between fixed‑term employees and permanent employees.

136   Mr Armstrong did not factor this consideration into his reasoning. On the contrary, he preferred retaining a fixed‑term employee to give the business greater ‘flexibility’ which really translates to certainty in relation to future costs. This is despite the fact that Mr Farrell was told on 6 May 2021 not only that his contract would not be renewed beyond its expiry but that it would likely be ended early.

137   Further, to the extent that the ‘flexibility’ of a fixed‑term contract was a significant consideration for Mr Armstrong, it was not apparent why Mr Van Tonder could not be redeployed in a fixed‑term contract position. The preference for a fixed‑term contract, therefore, says nothing about the selection of who should appropriately perform the fixed‑term contract and whose employment should be terminated for reasons of redundancy.

138   As counsel for Mr Van Tonder pointed out during the hearing, the SWALSC Collective Agreement 2018 expressly avows that SWALSC is committed to retaining mature aged workers. Clause 40 provides as follows:

40 Retaining Mature Age Workers

40.1 The Employer is committed to the retention of mature aged workers and recognises that incentives may need to be offered by the Employer, including:

40.1.1 Access to part time work, job sharing and purchased leave; Employee initiated fractional work, where an Employee works part time hours or days averaged over a twelve (12) month period; and a deferred salary scheme, e.g. a four‑year (4) in five (5) year arrangement;

40.1.2 Superannuation arrangements that do not financially disadvantage an Employee, when working part time, changing roles such as phasing out of management or higher‑level responsibilities or when working past the minimum retirement age;

40.1.3 Employer funded access to financial advice before an Employee retires.

139   While this clause does not expressly give mature age workers preference in selection for redundancy or redeployment (to do so would likely breach anti‑discrimination laws), the commitment to the retention of mature age workers must be given some content. Mr Van Tonder’s age, the skills and knowledge associated with his maturity and the hardship he might suffer because of his age were all relevant considerations for the purposes of selection for redundancy. SWALSC failed to take these into account.

140   Finally, I am mindful that the method Mr Armstrong utilised to select an individual for termination, and an alternative individual for retention, appears to have been based solely on the contractual or other industrially sourced entitlements of those respective employees. Namely that Mr Farrell, as a fixed‑term employee, was not entitled to receive redundancy pay on termination but Mr Van Tonder was. Had the parties been a national system employer and national system employee respectively, it is possible that such an approach would constitute adverse action against Mr Van Tonder under s 342 of the FW Act, in breach of s 340 of the FW Act, taken because Mr Van Tonder had a workplace right being entitled to the benefit of the redundancy clause of the SWALSC Collective Agreement 2018. It would be imprudent to endorse a decision that discriminates in a potentially unlawful way.

141   For all of the above reasons, I find that Mr Van Tonder’s selection for redundancy, or more accurately, that he was overlooked for redeployment, rendered the circumstances of Mr Van Tonder’s dismissal unfair.

Remedy

142   Mr Van Tonder is seeking reinstatement or re‑employment. SWALSC opposes an order for reinstatement. The parties agreed that if Mr Van Tonder’s dismissal is found to be harsh, oppressive or unfair and reinstatement impracticable, there should be a separate hearing concerning the quantum of compensation if that issue cannot be resolved between the parties.

143   Mr Van Tonder’s evidence was that he was willing and able to return to work as a lawyer at SWALSC. Although he specifies that he is ready and willing to perform his former position or alternatively, the role of a corporate/commercial lawyer, his counsel submits that his evidence makes it clear implicitly that he is also prepared to perform the role of SLO.

144   Section 23A(3) of the IR Act empowers the Commission to order an employer to reinstate an employee to the employee’s former position on conditions at least as favourable as the conditions under which the employee was employed immediately before the dismissal. If such reinstatement would be impracticable, then s 23A(4) empowers the Commission to order re‑employment in another position the Commission considers the employer has available and is suitable. Therefore, consideration of remedy involves a two‑step process. Only if reinstatement or re‑employment is found to be impracticable can the Commission then order compensation for loss and/or injury caused by the dismissal.

145   Whether reinstatement is impracticable involves a consideration of all the circumstances or a ‘spoken factual evaluation’: see Australian Rail, Tram and Bus Industry Union of Employees, Western Australian Branch v Public Transport Authority of Western Australia [2017] WASCA 86; (2017) 97 WAIG 431 at [148]. The issue of practicability requires a commonsense and objective assessment, not simply of the parties’ preferences or inconvenience or difficulty.

146   Given my findings that the termination of Mr Van Tonder’s employment resulted from a genuine redundancy involving the abolition of two lawyer roles, including the PLO role Mr Van Tonder held, it follows that reinstatement is impracticable. There is simply no role to which Mr Van Tonder could be reinstated.

147   It is also incontestable that the only suitable alternative position is the position of SLO, a position that is currently filled by another employee pursuant to a fixed‑term contract that ends in September 2022. As the only identified alternative position is not one that is available, it must follow that re‑employment is also impracticable.

148   Accordingly, Mr Van Tonder should be compensated for his loss resulting from the dismissal. As was foreshadowed at the hearing of this matter, I will hear from the parties before making final orders for payment of compensation in accordance with the principles for assessment of compensation as set out in Bogunovich v Bayside Western Australia Pty Ltd [No 2] (1998) 79 WAIG 8 and summarised by the Full Bench in Scicluna and another v Mr William Paul Brooks T/AS Bayview Motel Esperance, WA [2016] WAIRC 00862; (2016) 96 WAIG 1475 at [61].