Background
Mr Acworth (the Plaintiff) was employed at Boeing Australia Limited (the Defendant) as a software engineer from May 2004. His employment was terminated in February 2007 by way of Boeing’s acceptance of his resignation. The Defendant claimed that it terminated the Plaintiff’s employment because of genuine operational reasons. They maintained that the Plaintiff had refused a new role/assignment as was proposed and his current role was concluding due to the structure of the business.
There was no other work that he could perform for the Defendant. The Plaintiff held a Bachelor of Engineering (with Honours) in Software Design. He was originally employed as a Process Improvement
Engineer. The parties had a common law contract which stipulated that the company could vary duties or reassign the Plaintiff to an alternative role, as long as it was commensurate with his skill, knowledge and was comparable in nature with his previous roles.
It also stated that this may require the Plaintiff to work in other department/team/project/business unit or at another location to meet the demands of the business. His role in the project he was previously working on was finishing and he would be reassigned to another ‘comparable’ position within the business. He refused to accept the ‘comparable’ role he was offered. He was consulted between September 2006 and January 2007 about the prospective alternative position. He had also rejected two assignments offered to him from project managers.
The Defendant felt that they were best placed to evaluate whether the new position was effective and whether the Plaintiff met the essential criteria required for reassignment. They claimed the position was comparable employment because they had confirmed the Plaintiff’s competencies, in his previous experience with Boeing. The Plaintiff felt he was not sufficiently qualified for the role.
He also held that the position was located in Canberra, not in Brisbane where he was currently based. The Defendant then put forward that the Plaintiff had been assigned duties and roles in the past for which he did not hold the full requirements and had nonetheless completed the assignment.
Case
The Plaintiff made an application under s 643 (1) of the Workplace Relations Act 1996 (Cth) for relief for termination of his employment with Boeing Australia Limited. The full bench in Carter v Village Cinemas Pty Ltd v Carter was cited, which states that the operational reason relied upon by the employer need only be a ground or cause for the termination of employment. It need not be something that demands or brings about an obligation to terminate the employment of a particular employee.
Additionally the termination of employment does not have to be an unavoidable consequence of the operational reason for s 643(8) to apply. Therefore whether the employer could have done something other
than terminating the employee’s employment will generally be irrelevant.
The Commissioner determined from this case that a general operational reason did not have to be the only motivation for the dismissal, but it did have to be a ‘discrete’ reason. In the present case, the Defendant and Plaintiff fell into a dispute about whether the reassignment as offered, constituted comparable employment. The Plaintiff felt it was not.
Whether this constitutes genuine operational reasons so as to attract the exclusion at s 643 (8) of the act is the primary question to be determined. In Village Cinemas, the closing of the cinema complex and there no longer being a position of manager led to the termination of the Plaintiff’s employment. Hence it was the operational reason for the termination of employment.
The Defendant stated that the reason for the Plaintiff’s termination of employment was merely the inevitable consequence of his current project work coming to natural conclusion. They claimed that the cessation of the current project and the refusal to accept the reassignment was taken to be distinguishable circumstances consistent with s 643 (9).
The Commissioner stated that the unavailability of work only arises as an allegedly ‘genuine operational reason’ because the Plaintiff refused to accept the reassignment. The court found that, the reason for termination of the Plaintiff’s employment was his refusal to carry out a reasonable and lawful direction, which was consistent with the terms of his contract of employment. These terms were given by the
Defendant for the specific purpose of a further assignment of duties, and not the operational requirements of the business as such.
The contract of employment stated that the Defendant reserved the right to direct the Plaintiff to perform other duties as required by ‘variation’ or ‘reassignment’ and on terms consistent with their ‘qualifications, capabilities and experience.’ The Court decided that the Plaintiff was employed under a common law contract which contained no dispute resolution machinery and no readily accessible avenue by which a matter of difference ought to be resolved.
The Plaintiff did not believe that his offer of reassignment was comparable employment. On the evidence, the court did not hold this to be correct in terms of the location of the position and the programs that the position required the Plaintiff to use. The Defendant believed that while on paper, in the formal Position Description he may not have met all of the ‘essential criteria for the Reassignment Position, based on his previous experience and aptitude in performing different roles at Boeing, an assessment was made that he would be able to fulfil the requirements of the role.’
The court therefore held that because the reason for the termination of employment was the Plaintiff’s refusal to accept reassignment, it was not a genuine operational reason.
Decision: The Commission found for the Plaintiff.