Amanda Hill v Melbourne International Shooting Club Inc
[2022] FWC 1412
•9 JUNE 2022
| [2022] FWC 1412 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Amanda Hill
v
Melbourne International Shooting Club Inc.
(U2021/8806)
| COMMISSIONER YILMAZ | MELBOURNE, 9 JUNE 2022 |
Application for relief from unfair dismissal - genuine redundancy - small business dismissal code.
Ms Amanda Hill made an application to the Fair Work Commission (Commission) on 1 October 2021 under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with the Melbourne International Shooting Club Inc. (MISC). MISC submit Ms Hill’s dismissal was a genuine redundancy and it complied with the Small Business Dismissal Code. Ms Hill submits her dismissal was unfair and seeks reinstatement in the first instance, and in the alternative, compensation.
Ms Hill commenced employment with the Respondent on 31 August 2012 and was employed as the Club Manager at the time of dismissal. At the time of Ms Hill’s dismissal she was still entitled to weekly workers compensation payments following a claim lodged in February 2021. She submits that the dismissal was not a genuine redundancy as MISC approached her in February 2021 to negotiate a separation package and after negotiations failed, it then in July 2021 informed her of its intention to make her position redundant. Ms Hill further contends that the position of Club Manager cannot be made redundant as it is an essential role to service the Club’s approximately 500 members. Some communication between Ms Hill and MISC ensued regarding the question of whether her duties associated with the role were required to necessitate her continued employment. Evidently those discussions did not reach an agreeable resolution.
Ms Hill contends that her dismissal was harsh, unjust and unreasonable within the meaning of s.385 of the Act, that the actions of MISC are in breach of the Small Business Dismissal Code, in contravention of the Workplace Injury Rehabilitation and Compensation Act (Vic) 2013, and the reason given that some of her duties were automated is not valid as the Committee could not make that assessment on the basis that a job description was never agreed to.
MISC submit that the application should be dismissed under s.396(b) of the Act on the basis that Ms Hill’s dismissal was a genuine redundancy and that the dismissal was consistent with the Small Business Code.
Both the Applicant and Respondent were granted leave for legal representation in this matter. Ms Hill was represented by Mr Griffin of AWE Legal and MISC was represented by McDonald Murholme Solicitors and Nicholas Harrington, barrister.
The legislation
Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs of s.390 of the Act must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
Ms Hill made an application under s.394 of the Act within the statutory time frame of 21 days.
Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
There was no dispute that Ms Hill had met the minimum employment period having completed nine years employment, in relation to s.382(b) Ms Hill’s annual earnings were below the high-income threshold and it is not contested that Ms Hill’s employment was covered by the Registered and Licensed Clubs Award 2020 (the Award).
Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Background
The uncontested factual background to the matter is as follows:
· Ms Hill was first employed on 31 August 2012 and her employment terminated on 17 September 2021;
· At the time of dismissal Ms Hill was on WorkCover and paid at the statutory rate of $528 per week, while the pre-injury duties rate was $660 per week;
· Ms Hill was employed as a part-time Club Manager and only one other casual employee was engaged at the time of Ms Hill’s dismissal;
· The Secretary of the Club, Mr Camera provided to Ms Hill a letter of termination of employment dated 17 September 2021 that states that due to her absence from work from December 2021, most of her duties had been automated, it further alleges that there had been consultation over July and August and her position has been made redundant;
· Ms Hill accepts that a letter of termination dated 17 September 2021 was provided however, she disputes the comments regarding automation and consultation; and
· Ms Hill was dismissed at the employer’s initiative and filed her application within the statutory 21-day time limit.
I am satisfied that Ms Hill’s application meets the requirements of s.382 and s.385(a). Section 385 (c), that the dismissal is consistent with the Small Business Fair Dismissal Code and s.385 (d) that the dismissal is a genuine redundancy is contested in this matter.
The hearing
There being contested facts involved, the matter was scheduled for hearing on 7 and 8 February 2022.
Witnesses
Ms Hill gave sworn evidence and Messrs Neil Davis (elected Vice Captain Rifle) and Stephen Smorgon (past Committee member) gave evidence on her behalf.
The following witnesses gave evidence on behalf of the Respondent:
· Mr Jason Grogan, Committee Development Manager; and
· Mr Nicholas Camera, Committee Secretary.
Submissions
MISC submit that the application by Ms Hill should be dismissed without consideration of the merits under s.396(b) of the Act due to the dismissal being due to a genuine redundancy, and the dismissal being consistent with the Small Business Fair Dismissal Code (the Code).
MISC submits that it is a small business employer (which is not contested) and the Committee members are volunteers without contracts of employment.
MISC contends that Ms Hill’s employment was dismissed consistent with the requirements of the Code, and the Code “assists with determining whether a redundancy is a genuine redundancy.”[1]
MISC tendered in evidence as part of the Form F3, a copy of the Small Business Fair Dismissal Code checklist.[2] In answer to the questions, it marked the boxes that indicate that the employee was dismissed because the job was not to be performed by anyone because of changes in the operational requirements, that it complied with the consultation requirements in the modern award and that it considered redeployment. Further boxes marked that in discussions where dismissal was possible, the Applicant asked to have a support person and the request was agreed to by MISC. I observe that the checklist is not signed and dated. There was no evidence of when the checklist was completed.
MISC further contends that it complied with consultation regarding redundancy requirements of the Award It refers to Part 8, clause 35 of the Award and submits there are no additional obligations outside those in the Act. In relation to consultation, it submits that it consulted and refers to various correspondence.[3] MISC submits that it complied with s.388(2) of the Act and therefore the application should be dismissed.
In relation to genuine redundancy MISC contends that pursuant to s.391(1)(a) of the Act the meaning of redundancy arises ‘where the person’s employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.’ It further relies on various authorities that the applicant’s position was substantially altered, and this alteration meets the definition of genuine redundancy.
In relation to the Applicant’s submission that no position description was ever implemented, it contends that in March 2020, it presented a position description which Ms Hill failed or refused to sign. The position description is for a Club Manager.[4]
In February 2020, Mr Jason Grogan was elected to the MISC Committee in the position of Development Manager. Mr Grogan gave evidence of his knowledge as a cloud database specialist to modernize an outdated and inefficient system, which included a member database with processes to minimise handling. The database was also connected to the retail database, scoring database, card printing system, Titan access manager and MYOB. Additional hardware was purchased to streamline and automate processes and his review of systems was completed in July 2020.[5]
Mr Grogan gave evidence that the result of his changes to technology were substantial in automating the Applicant’s job, thereby the position became redundant. In particular, he states that in July 2021 while he and Ms Frazer (Committee Treasurer) were reviewing Ms Hill’s duties for a return to work plan, they concluded that with the majority of her job becoming automated, it left only 11.5 hours per month compared to the 20 hours per week that Ms Hill was contracted to work.
MISC submit that the first letter of 15 July 2021 to Ms Hill advised her that the position of Club Manager was at risk of being made redundant and signalled the start of the consultation process and invited Ms Hill to nominate a representative to act on her behalf. A subsequent letter was forwarded to Ms Hill on 21 July 2021 to arrange a meeting to discuss the redundancy. On 29 July 2021, MISC held a consultation meeting with Ms Hill and her representative to discuss the redundancy and invited Ms Hill to make a suggestion about an alternative role in the club. On 2 August 2021, MISC wrote to Ms Hill stating that ‘extensive discussions have already taken place between committee members to identify sufficient work to create a ‘new role’ and invited Ms Hill to make a list of committee members she wished to speak to provide her own ideas on alternative tasks. On 4 August 2021 MISC invited Ms Hill to participate in a further discussion regarding the risk of redundancy.
MISC state that it was not reasonable to redeploy Ms Hill given the size of the enterprise; the redistribution of remaining duties to the other part-time employee and to volunteer Committee members, and further, that the consultation process revealed there were no alternative duties proposed by her for consideration.[6]
Ms Hill submits that the argument by MISC that it is a small business and availing itself of the small business exemption to unfair dismissals is wrong at law due to the reason for her dismissal being redundancy.[7]
Ms Hill also submits that the Respondent’s second argument which relies on the definition of redundancy in s.389 of the Act and suggests that s.385 (d) is not enlivened is also flawed. She submits that the Respondent conveniently avoids the point regarding the absence of a position description. Ms Hill states that over her 9 years’ employment the Committee could not agree on a position description and therefore the evidence of Mr Grogan that an analysis of the change in her duties against operational requirements could not have been done in any meaningful way.[8] Ms Hill describes her employment as being in a form of limbo as the Committee over the years could not agree on her duties that make up her role. Rather, her unwritten and actual role “amounted to ‘other duties as directed.’” Further, she contends that the position description presented by her on 6 August tested the bona fides of a redundancy. The Respondent did not respond to the proposed position description and the witness evidence shows that ongoing work at the Club was available for which the Applicant had the skills and knowledge.
A further consideration as to whether the dismissal was a genuine redundancy concerns Ms Hill’s absence on workers compensation. From early April 2021, her claim was accepted and backdated to 7 December 2020. Ms Hill submits that MISC failed to comply with its obligations under the Victorian Work Injury Rehabilitation and Compensation Act (2013) to keep her position open for 52 weeks from injury. She also notes the absence of any submissions regarding this point by the Respondent.
She submits that the Respondent relies on a “disingenuous” or “deceptive” justification for her dismissal, that being that the temporary arrangements developed to meet her absence, (for reasons caused by the Respondent), and which is supported by the evidence that others are performing the tasks that she previously performed, is now a permanent change.[9]
I observe that during following the luncheon break during the proceedings, the Respondent indicated it was no longer pursuing its reliance on the Small Business Fair Dismissal Code. However, for completeness I do address the relevance of the Code.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
Having determined that there are no jurisdictional objections such as minimum employment period and modern award coverage, I turn to s.385 of the Act which defines when an employee is unfairly dismissed. It is not contested that Ms Hill was dismissed; however, it is in dispute whether the dismissal is consistent with the Small Business Fair Dismissal Code (s.385(c)) and if the dismissal is a genuine redundancy (s.385(d)).
Section 388 of the Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
MISC was a small business within the meaning of s.23 of the Act, having two employees at the time of Ms Hill’s dismissal. MISC submits that the dismissal was consistent with the Small Business Fair Dismissal Code, while Ms Hill submits that it was not.
A dismissal cannot be unfair if the dismissal complies with the Code. MISC tendered in evidence the Code checklist. The checklist cover page provides that small business employees cannot make an unfair dismissal claim where the period of employment is less than 12 months, and the employer has followed the Code. The Code concerns summary dismissal and “other dismissal” cases. Other dismissal concerns valid reason based on conduct or capacity. MISC does not contend that Ms Hill was summarily dismissed or dismissed for conduct or capacity. Rather, MISC submit that the reason for dismissal was redundancy. The code checklist contains the following information on redundancy:
“Employees who have been dismissed because of a business downturn or their position is no longer needed cannot bring a claim for unfair dismissal. However, the redundancy needs to be genuine. Refilling the position with a new employee is not a genuine redundancy. The requirements for determining whether a dismissal was a genuine redundancy are contained in section 389 of the Fair Work Act. The Small Business Fair Dismissal Code Checklist attached to this document can assist in determining whether a redundancy is a genuine redundancy.”
MISC completed the Code Checklist indicating yes to “Did you dismiss the employee because you didn’t require the person’s job to be done by anyone because of changes in the operational requirements of the business?” and further yes to the following two questions: “Did you comply with any requirements to consult about the redundancy in the modern award, enterprise agreement or other industrial instrument that applied to the employment?,” and “Did you consider if the employee could have been redeployed in your business or the business of an associated entity?”.
The Code does not apply to small business employers that dismiss an employee because of redundancy.[10] The Code applies to dismissals for conduct and capacity. As MISC identify the reason for dismissal was redundancy, the Code does not apply to the dismissal. The question then follows was the dismissal a genuine redundancy?
Was the dismissal a case of genuine redundancy?
Under s.389 (1) of the Act, a person’s dismissal is a case of genuine redundancy if:
(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
Operational reasons
The first limb of s.389(1) relates to the employer no longer requiring the job to be performed by anyone because of operational requirements. MISC contend that the technology changes implemented by Mr Grogan were such to make Ms Hill’s position redundant as a number of her duties were automated and the rest were distributed to another employee and among the volunteer Committee members.
Mr Grogan joined MISC as a general member on 18 May 2017 and in February 2020 was elected to the Committee as Development Manager. On commencement on the Committee, he states that he was asked to review the applications and data systems to ascertain what was held, how secure the information was, the accuracy of the data and the processes to access the data.
Mr Smorgon[11] also gave evidence that he was Vice President and previously held the position of Development Manager when Mr Grogan joined the Committee. He too has an extensive background in IT and is an experienced CEO. He states that he was surprised by Mr Grogan’s statement that he was asked to review the application and data systems by the President and Secretary and noted there were no minutes to that effect. Mr Smorgon states that the Committee had the intention of upgrading and streamlining processes to free up Ms Hill to utilise her in more meaningful work, which often was the reason for committee member complaints as she was unable to complete competing tasks and her limited hours. He states the reason for updating the technology was never intended to make her redundant. He further states that the Committee relied on additional employee resources in 2018 and the appointment of Mr Rogers was also for the purpose of freeing up Ms Hill. He explained that Mr Rogers also a committee member that agreed to the work with payment, because he worked at the airport and his hours were severely impacted by the COVID-19 pandemic.
Mr Davis also gave corroborating evidence of two people employed in 2018 to perform the tasks performed by Ms Hill. Both Messrs Davis and Smorgon challenge the evidence of Messrs Grogan and Camera that the IT changes made Ms Hills job redundant.
Mr Grogan’s review was completed in July 2020. He found that in addition to MYOB, MISC operated four databases (Retail Manager for the canteen, card printing system, scoring and Titan security). His assessment was that having separate systems meant information was manually entered resulting in issues with accuracy and time management in addition to inefficiencies in preparation of reports and invoices. A proposal to update the technology and systems was approved and subsequently completed. Mr Grogan gave evidence that the data entered into the member database meant that processes no longer required multiple entries into different systems as the information flowed into related databases.[12]
Mr Smorgon challenges the evidence of Mr Grogan and submits that Ms Hill’s duties over her nine years’ employment never concerned the scoring database. He further gave evidence that as the committee is subject to election annually, MISC’s engagement of a Club Manager to perform the administrative and clerical tasks maintained continuity should the entire committee be replaced at an AGM and because committee members are volunteers and participate to different levels depending on their time, skills and interest. He challenges the statement that the position is redundant because others now share Ms Hill’s duties. He emphasises that committee members have stepped up on a temporary basis because of Ms Hill’s WorkCover claim. He makes the point that continued commitment to the duties by voluntary Committee members long term is unsustainable.
Mr Davis[13] corroborates Mr Smorgon’s evidence in relation to the temporary nature of distributing Ms Hill’s duties, the years of issues concerning the unsettled job description and pressure on Ms Hill to perform numerous tasks within her limited hours of work. He also refers to his involvement in trying to settle the matter of the position description and states the duties as outlined in the position description tendered by Ms Hill in August 2021 remains relevant, notwithstanding the work in streamlining systems by Mr Grogan. As a current committee member, Mr Davis raises serious governance issues as he maintains that at no point did the committee delegate the responsibility to make Ms Hill redundant without the full committee being consulted first, he also criticised the same four committee members for withholding information that Ms Hill lodged a WorkCover claim.
Ms Hill gave evidence that she was initially employed to work 16 hours per week but often worked between 20 and 28 hours per week. She described her duties as principally to assist the Secretary and on membership. A contract of employment was provided in January 2014 but executed by the Club in July or August 2015 and backdated to 2012. I observe the contract provided for 24.5 ordinary hours but a minimum of 20 hours per week. A position description was not attached, but a “draft copy” was provided to Ms Hill in 2017 dated 20 January 2012.[14] In 2017 Ms Hill unsuccessfully sought to resolve the matter of her position description and hours of work. In 2018 there appears to have been no further follow-up regarding the position description, even though hours of work had adjusted to suit the needs of both parties. I observe that the uncontested evidence of two employees performing the role in 2018.
On 4 May 2019, Ms Hill wrote to the Committee asking for a salary adjustment and included a list of duties performed along with her selection of comparator roles from Hudson’s Salary Guide. This followed a meeting with the Committee in March 2019 where it is alleged by Ms Hill that a discussion about a position description took place.
At around 24 May 2019 a committee member put together a revised offer of employment based on Committee member needs. This offer included the requirement to work from home between 5.00-9.00 pm two days per week and on Saturday mornings. Ms Hill gave evidence that she rejected the offer and suggested the role be split to accommodate her personal family requirements.[15] I observe that her contract of employment included hours of work each Wednesday between 7.00-9.00pm. Despite this contractual provision, Ms Hill managed to alter, by agreement, her hours of work to suit her personal needs.
By June 2019, the relationship between Ms Hill and the Committee deteriorated to the point where a committee member attempted to mediate and produce a position description as late as August 2019. When Ms Frazer was elected to Treasurer in September 2019, there were discussions about whether there would be a continued reliance on bookkeepers and whether financial duties could be performed by Ms Hill. Ms Hill gave evidence that she would be happy to assist in financial tasks provided she did not work more than 20 hours per week.[16]
In March 2020, Ms Hill’s hours were reduced because of COVID-19 restrictions and in April 2020, Mr Camera, Secretary, provided Ms Hill with a revised draft position description. Ms Hill appears to have preferred the August 2019 position description and she gives evidence that the May 2020 committee minutes state that the MISC looked to appoint an assistant, which she describes as a “shock”,[17] even though it was her suggestion to split the role into two in May 2019 and in 2018 there were two people performing the role. However, I note that the decision to appoint a part-time employee was made without any prior discussion with Ms Hill and the distribution of duties occurred without any consultation. Ms Hill was again sent the position description by Mr Camera and asked for feedback by 15 June 2020. Instead of responding directly to the Secretary, Ms Hill approached the Vice President and Vice Captain Rifle about the position description in the first instance.
On 19 June 2020, Ms Hill complained to the Treasurer venting her frustrations with ‘the entire’ committee about the position description, various changes introduced by the committee over the years, criticism of committee members and the alleged lack of clear direction of her role.[18]
In August 2020 it was agreed that Ms Hill would work 10 hours per week due to the impact of COVID-19 to the operation. The minutes of 24 September 2020 indicate concerns with Ms Hill’s performance and a plan to initiate a performance improvement plan once MISC returns to normal working conditions. Ms Hill’s concerns with the minutes relate to the fact that confidential matters (which ordinarily would include staff matters) would remain in the confidential minutes sent to committee members only, while redacted minutes are sent to the membership broadly. Unfortunately, the minutes with confidential and sensitive information was sent to the membership, which Ms Hill says was most likely deliberate. Among the concerns referenced in the minutes were:
· Refusing to work with or have any communication with certain members of the committee
· Rejecting or ignoring tasks assigned to her
· Failing to meet delivery targets
· Providing incorrect or erroneous information on multiple occasions
· In 2019 threatened action against MISC for taking financial tasks out of her role,
· In 2020 threatened action against MISC for requiring her to undertake financial tasks.[19]
The relationship between Ms Hill and Ms Frazer deteriorated around mid-2020, and Ms Hill was informed by a committee member that the matters raised in the August minutes were at Ms Frazer’s instigation. The evidence suggests that the Committee was aware of the difficult relationship between Ms Frazer and Ms Hill. This relationship resulted in a WorkCover claim by Ms Hill which was accepted in April 2021 and backdated to December 2020. At the time of issuing this decision Ms Hill’s WorkCover claim remained current.
Over October 2020, Mr Grogan altered email addresses which impacted Ms Hill’s ability to perform her tasks and in November 2020 there were questions to Ms Hill about the accuracy of her time sheets, she submits that she could no longer access MYOB and prepared to return to the office on 30 November 2020.
On 7 December 2020, the President provided Ms Hill with a list of tasks requested by the Committee to be completed before going on annual leave. Ms Hill informed him that it was not possible to complete the extensive list of tasks in the two weeks prior to going on leave. On 9 December 2020, Ms Hill proceeded on personal leave. She states that on or around 21 January 2021 she was locked out of her account and on 28 January she was locked out of the premises, presumably at the same time she was placed on “administrative leave” instead of returning to work.
Since November 2020, Ms Hill alleged bullying and intimidation and her legal representative corresponded with MISC. On 19 February 2021, a meeting with MISC’s employment advisers, Employsure, took place. No resolution of Ms Hill’s complaints or MISC concerns about Ms Hill was achieved.
Ms Hill, critical of the meeting on 19 February 2021 and of behaviour towards her, lodged a WorkCover claim immediately. The claim was accepted in April and backdated to December 2020. In April 2021, Ms Hill was also asked to return her laptop.
Ms Hill was dismissed on 17 September 2021. Upon proceeding on personal leave in December 2020, and subsequently workers compensation Ms Hill never returned to work. The elected Membership Manager on the Committee works in paid part-time work for 10-11 hours per month and has worked for MISC prior to Ms Hill’s dismissal.[20] There has been no other employee engaged in the Club Manager role, howsoever defined, since her absence in December 2020 or since dismissal.
Mr Grogan gave evidence that he tidied up the database to ensure it then flowed into other databases and member batch files flowed into processes utilised by MISC (e.g., billing into MYOB). Having one primary database ensures fewer errors and reduces multiple data entry processes. He also gave evidence that the billing system was streamlined with concurrent card replacement, which traditionally had been a time-consuming manual process. He gave evidence that responsibility for the member database sits with the Membership Manager, emails had been redirected to go to a generic location to ensure member inquiries can be attended to regardless of absences or unavailability of an individual, communications concerning safety courses and new members has been condensed into the membership role and the new website streamlines other communication tasks. He further described the revised financial processes introduced by the Treasurer which includes BPay and removal of the traditional reliance on cash transactions. Mr Grogan gave evidence that processing a dozen members per month has now become a process taking up to 15 minutes. Both Messrs Smorgon and Davis and agree there were efficiencies introduced which impacted Ms Hill’s role. I accept the evidence is credible that there have been business efficiencies that had impacted the role performed by Ms Hill. However, the evidence was that Ms Hill was always under pressure to perform duties in excess of her hours of work. It was not contested that she regularly worked well in excess of the 20 agreed hours. The appointment of an accountant to replace the bookkeepers appears to have no consequence on Ms Hill’s position.
Mr Smorgon tendered together with his witness statement a series of member minutes which were intended to demonstrate that at no point had the committee informed members that Ms Hill was dismissed. However, on reading the minutes it is obvious that many administrative tasks arise following each committee meeting, which if Ms Hill would have been at work, a number would be delegated to her. Examples of administrative tasks referred to in the minutes, which if not performed by individual committee members, would be performed by the paid staff during working hours included organising the facility for competitions (seating, refreshments, registration, access etc.), AGM duties (notices, access, registration, record of voting, seating, documentation), arranging lead clean up and access, payment of contractor works, management of keys and passwords, chasing payments, cancelling credit cards, arranging, managing and promoting coffee/tea stations, reviewing policies, managing contractor and service provider access for various works including solar, server room, power points, first aid kits, maintenance of facilities and many more tasks associated with a club that allows access to the facility of some 500 members.
While Ms Hill has been absent, the tasks have been allocated to committee members including Mr Rogers who already has a paid role. The cross examination of Mr Grogan in respect to the August 2020 position description confirms the reallocation of many tasks which must be performed by a person, and a number that remain but had not been explained who performs them. The streamlining of the databases does not eliminate the requirement of administrative tasks. A modest perusal of the minutes suggests the committee members are contributing significant hours to their voluntary elected role.
The Act does not define operational requirements; however, the term is often used broadly to describe changes in performance of the business, the effect of the market or improved efficiencies by introducing technology, skills or processes. Section 389(1)(a) requires the Commission to consider whether the employer “no longer required the person’s job to be performed by anyone because of changes in the operational requirements” of the enterprise. The evidence of MISC is that streamlining the databases together with allocation of duties to committee members means that it no longer requires the job to be performed by anyone. The evidence of Messrs Smorgon and Davis is that the arrangement of committee members performing the tasks is temporary and not a long-term sustainable proposition.
Ms Hill submits that the changes introduced do not produce the result that a Club Manager role is redundant. She contends that the argument that her position is redundant is a sham. She and her witnesses refer to behaviours of some Committee members to infer that the reason of redundancy is disingenuous. However, s.389 (1)(a) does not require an assessment of the merits of the employer’s decision. A Full Bench relevantly describes the consideration as follows:
“in relation to s.389(1)(a), it is necessary to state at the outset that consideration of whether the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise does not involve a merits review of the employer’s decision to make the person’s job redundant. It is not to the point that it may have been open to the employer to make a different operational decision which may have allowed the relevant employee’s job to be retained. As was stated in Low v Menzies Property Services Pty Ltd, “Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.”9 What s.389(1)(a) requires is for findings of fact to be made as to whether, firstly, the employer has made the decision that the relevant employee’s job is no longer required to be performed by anyone and, secondly, whether that decision was made because of changes in the operational requirements of the enterprise. If there was an ulterior motive for the decision - that is, if the real reason for the decision did not genuinely relate to any change in operational requirements, whatever the ostensible reason may have been - then it will not be possible to make the second finding of fact. However once these findings of fact are made, the element of the genuine redundancy definition contained in s.389(1)(a) is satisfied and no further inquiry is necessary.”[21]
An analysis of the facts does show there was a strained relationship between Ms Hill and a number of committee members over the years, and I am satisfied that since mid-2020 the relationship between Ms Hill and Ms Frazer in particular, was such that led to an accepted workers compensation claim. I also find that I am not satisfied that the decision to dismiss her was made with the full support of the Committee. The MISC Rules enable the Committee to appoint and remove staff and while the Committee has powers to delegate,[22] no credible evidence of delegation was tendered. Confidential minutes of 24 June 2021 and the “notes” taken by Mr Camera do not support the contention that the decision to make Ms Hill redundant was made by the committee, nor that the decision and processes for redundancy are to be managed by the four committee members. I also observe that Ms Frazer was one of the four to “handle the process” which arguably is a conflict of interest due to the reason for the successful workers compensation claim relates to her behaviour towards Ms Hill. I also observed that Mr Rogers failed to declare a conflict of interest when he remained present during a discussion as to whether Ms Hill should be performance managed.[23] Mr Camera also gave evidence that Mr Rogers seconded the motion to commence the consultation process to make redundant the Club Manager role on 14 July 2021, he also states that Mr Davis was present, and the committee unanimously agreed to the redundancy. Formal minutes were never finalised or distributed to the committee; however, Mr Camera provided his notes, which are provided below. There is no capacity to ascertain if they are contemporaneous notes as it is presented in an email dated 7 February 2022. Further the notes say to commence discussions and given the conflicting witness evidence it appears that the obligation to consult and the decision to make Ms Hill was the same thing for the four committee members that carried out the process. Mr Davis however, stated that it was agreed to commence discussions, he denies this meant to make the position redundant. Despite these deficiencies in the decision-making process, the MISC committee condoned the behaviour of the four committee members in dismissing Ms Hill.
“notes:
Attendees
Nick
Kim
Ian
Mark
Jason-Zoom
Tony-Zoom
Niel
Kevin
Paul-apology(work)
Sarah-Apology(inNZ)
To commence redundancy discussions on the club managers role due to a downturn in club revenue linked to the covid-19 impacts and a reduction in thre roles duties due to automation and process improvement. Kim Jason Ian and nick to handle the processes.”
It is also relevant that it is alleged that on review of Ms Hill’s return to work plan by Mr Grogan and Ms Frazer, that their assessment was that there was no position for Ms Hill to return to. I agree with Ms Hill that the process was flawed and given the obvious hostility Ms Frazer had for Ms Hill and her nomination of Mr Grogan to join the Committee, I am not satisfied that the process was objective or fair.
On balance of the evidence, I am not satisfied that MISC has demonstrated that its decision was for the genuine reason that the position is no longer required because of operational requirements. While there were efficiencies introduced in connection with the databases, many administrative and clerical tasks remain which Ms Hill performed in her job but were allocated to a paid committee member and other committee members, because Ms Hill took absence firstly on personal leave and subsequently on workers compensation. The allocation of tasks which made up Ms Hill’s job were allocated due to her absence and not because of operational requirements as intended by s.389(1)(a). The evidence does not weigh in favour of MISC that there was a genuine reason for the dismissal to satisfy s.389(1)(a).
Obligation to consult
The second limb of s.389 concerns the question whether MISC complied with the obligation in the Award that applied to the requirement to consult about the redundancy.[24]
Clause 36 – Redundancy, refers to the national employment standards and other specific provisions in matters of redundancy. However, consultation is found in clause 32. I do not consider that I need to contemplate whether s.389(1)(b) has been met, as I have determined that the first limb, s.389(1)(a) has not been met.
I now consider the relevant provisions of s.387 of the Act.
Was the termination unfair?
Section 387 of the Act requires me to consider the following matters:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a)whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c)whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g)the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Was there a valid reason? (s.387(a))
I do consider that the reason for dismissal was for a reason other than redundancy, even though it was never disclosed. The relationship between Ms Hill and certain committee members has been difficult and those certain individuals were intrinsically connected to the decision to dismiss, despite their conflict of interest. It is unhelpful to contemplate what that reason for dismissal was, other than to make observations of the facts. Ms Hill for some years experienced challenges with certain members of the Committee when they required her to perform certain duties and neither her position description nor any systems were in place to clarify what could reasonably be expected of her given her limited hours of work. The committee members operated without systems or processes. They could not agree on the detail of the position description, nor reporting line or how priorities would be resolved when a conflict arose. Inappropriate and disharmonious behaviour by members of the committee was condoned.
The reason given to Ms Hill was genuine redundancy, but I have not found it to be the case. Therefore, there is no valid reason for the dismissal.
Notification and opportunity to respond (ss.387(b) and (c))
The matters in s.387(b) and (c) of the Act deal with whether there was procedural fairness in respect of a reason for dismissal related to the Applicant’s capacity or conduct. MISC contend the dismissal was not due to conduct or capacity, therefore these considerations are neutral.
Support person (s.387(d))
MISC did not deny the opportunity for Ms Hill to have a support person, nor an advocate.
Unsatisfactory performance (s.387(e))
The dismissal did not relate to unsatisfactory performance, so this matter is not relevant to my consideration. I regard this a neutral matter in terms of whether the dismissal was harsh, unjust or unreasonable.
Size of the enterprise and human resource management (s.387(f) and (g))
The absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”[25] In this matter, MISC availed themselves of advice from Employsure prior to implementing the redundancy process. Despite their efforts to obtain advice, the decision to dismiss on the basis of redundancy was not genuine and this consideration does not weight in the Respondent’s favour.
Other matters (s.387(h))
Ms Hill was employed for more than 9 years, a relevant consideration, and the matter of sorting her position description was for valid reasons but ignored; this added to the conflict with certain members of the committee.
Ms Hill sustained a workplace injury and remains on the workers compensation system. Her claim in my view was not taken with sufficient seriousness by the Committee to ensure either her job was kept open as required or to manage a return to work. Despite the size of the employer and despite the fact that MISC is a club managed by a committee of voluntary elected officials, it nevertheless had a legal obligation to treat Ms Hill fairly in accordance with her rights under the Workplace Injury Rehabilitation and Compensation Act 2013 and Fair Work Act 2009.
Conclusion regarding harsh, unjust or unreasonable
Taking into account the matters referred to above, I am satisfied Ms Hill’s dismissal was unfair.
Remedy
Ms Hill is seeking reinstatement and was hopeful that a new committee would be elected, and her issues be resolved. The history of Ms Hill’s employment does not provide any comfort that firstly an entirely new committee would be elected, or that individuals that she has concerns with would not be returned, nor that a new committee would not be divided or difficult.
Despite this, Ms Hill is seeking the primary remedy of reinstatement otherwise, she submits, poor behaviour is rewarded. She submits that the argument of loss of trust and confidence is irrelevant as her performance or conduct was not a consideration in her dismissal. In addition to reinstatement and other remedies, she is looking for compensation which is the difference of her worker’s compensation amount and what she would have received.
The decision on remedy is difficult as Ms Hill has sustained a compensable injury. At the time of hearing and when publishing this decision, she was still on weekly payments and a certificate of capacity that deems her unfit for work. Ms Hill made assurances that she has worked for MISC for 9 years under various committees and could do so again without any concern. I do not take lightly the comments that Ms Hill’s performance or at least her approach at work may have been impacted because of the difficult circumstances with the committee and the manner in which she describes individual members of the committee. However, should I order reinstatement then MISC would be wise to address the deficiencies that led to the conflict between Ms Hill and certain committee members; although I do not hold out any expectation that it will, given that in 9 years the approach has been to avoid resolving the critical matter of what makes up Ms Hill’s position and the process by the committee to deal with such matters. I also have not taken lightly the evidence of Messrs Davis and Smorgon that the committee performing extra duties was always intended to be a temporary arrangement until Ms Hill returned from her absence but is an central to the Respondent’s position that the club manager role is redundant.
For the above reasons I do not order reinstatement. Ms Hill’s incapacity to work weighs heavily on this decision. There is no indication when she will be fit to resume duties and she has been unfit to work since December 2020. No assessment has been provided to indicate a date of return to duties, nor is this Commission in a position to order reinstatement when a return to work date is unknown and not within its control. Relevantly a Full Bench considered a matter much like the situation that presents for Ms Hill. That decision found that the Commission cannot issue an order for reinstatement that is conditional on a medical assessment by a third party. The relevant extract from the decision is as follows:
“[45] To be clear, what has earlier been said does not mean that a reinstatement order may not contain ancillary provisions additional to the bare statement of the requirement that the employee be reinstated to the identified position. A statutory conferral of power is, subject to any contrary express provision, taken to carry with it powers that are necessary for, incidental to or consequential upon the exercise of the power granted.16A reinstatement order made under s.391(1) may therefore contain ancillary provisions intended to ensure that the order is made effective. For example, a reinstatement order will usually identify a date by which the order is to be complied with; and other necessary ancillary provisions may be included provided that the order is one which retains the essential character of effecting the reinstatement of the subject employee.
[46] However, these are not issues which the Commission is empowered to deal with by making an order under which the reinstatement of the employee is conditional upon a medical, risk or health and safety assessment to be made by a third person after the order has been issued. It is ultimately the Commission’s task to make any required assessment of that nature, assisted by the evidence which the parties place before the Commission and such further evidence as the Commission may require to be produced. If the Commission cannot be satisfied that the relevant employee is fit to perform the inherent duties of his or her former position, or those of an alternative position that is no less favourable, then the proper course will be to find that reinstatement is not the appropriate remedy and to turn to the alternative remedy of compensation.”[26]
In considering compensation I am required by s.392(2) of the Act to consider the following:
“(2)In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c)the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d)the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e)the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f)the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.”
Submissions on the matter of compensation were brief and did not address each of the considerations of s.392(2). Had MISC complied with its obligations to keep Ms Hill’s position open for 52 weeks, then Ms Hill would have continued to accrue long service leave and annual leave.
In respect to remuneration lost, no evidence of any requirement for make-up pay was tendered, and workers’ compensation payments are included in the amount of remuneration earned[27] and therefore I do not find in favour of awarding the difference in the pre-injury earnings with the compensation payment actually paid to Ms Hill.
Should I award compensation, the compensation is based on the amount of payment Ms Hill would have received while of WorkCover. However, workers compensation payments are to be taken into account as remuneration earned which brings the compensation figure to zero. There are no mitigating circumstances to take into consideration to reduce compensation and there is no evidence of any other earnings after the dismissal. Ms Hill’s conduct in my opinion did not materially contribute to the dismissal and her length of employment is substantial and relevant to the consideration of compensation. There is no evidence of the effect of an order on the viability of MISC.
Taking into account the requirements of s.392(2) and the Sprigg formula the result is zero, but I do consider this to be clearly inadequate and unfair to Ms Hill.
Where application of the Sprigg formula produces a result that is clearly inadequate or excessive, full benches of the Commission have provided guidance. I have considered the reasoning of the Full Bench in Bowden v Ottrey Homes Cobram and District Retirement Villages[28] and the Full Bench of the AIRC in Smith v Moore Paragon Australia Limited [29] as follows:
“It seems to us that the amounts arrived at by the application of the guidelines in Sprigg in the present matter are on their face manifestly inadequate for employees with the length of service of the Appellants, the circumstances of their dismissal and their poor prospects for future employment. This causes us to sound a warning in relation to the application of Sprigg. The guidelines laid down in Sprigg and refined in Ellawala v Australian Postal Commission28 are clearly designed to serve the proper and desirable purpose of fostering uniformity and consistency in decision-making by individual members of the Commission when assessing compensation pursuant to s 170CH(6). However, those guidelines are not a substitute for the words of the Act.29 By virtue of s 170CH(2), any remedy ordered by the Commission must be a remedy that the Commission considers “appropriate” having regard to all the circumstances of the case including the matters set out in s 170CH(2). Section 170CH(6) confers a general discretion “if the Commission considers it appropriate in all the circumstances of the case” to “make an order requiring the employer to pay the employee an amount ordered by Commission in lieu of reinstatement” subject to the Commission having regard “to all the circumstances of the case including” the matters listed in s 170CH(7) — the same list of matters set out in s 170CH(2) — and subject also to the “cap” provided for in s 170CH(8) and (9). If an application of the guidelines in Sprigg yields an amount which appears either clearly excessive or clearly inadequate, then the member should reassess any assumptions or intermediate conclusions made or reached in applying the guidelines so as to ensure that the level of compensation is in an amount that the member considers appropriate having regard “to all the circumstances of the case” including the matters listed in s 170CH(7) and subject to the “cap” provided for in s 170CH(8) and (9). In this context it should be borne in mind that the result yielded by an application of the Sprigg guidelines may vary greatly depending upon particular findings in relation to the various steps including, in particular, step one, which necessarily involves assessments as to future events that will often be problematic.”
In the circumstances I consider compensation of 15 weeks, to be reasonable and it is a figure below the cap. A superannuation contribution of 10% is to be made on the 15 weeks.
In addition, MISC is to make payment of Ms Hill’s annual leave and long service leave entitlements for the balance of the 52 weeks that her position would have been kept open had the dismissal not occurred.
Orders to this effect will be issued concurrently with this decision.[30]
COMMISSIONER
Appearances:
Mr J. Griffin for the Applicant.
Ms N. Harrington for the Respondent.
Hearing details:
2022
Melbourne (By Video using Microsoft Teams)
7-8 February
[1] Respondent’s outline of submissions at [17] – [19].
[2] Form F3, attachment MISC-3 and document 13 attached to the Respondent’s outline of submissions.
[3] Letters from MISC to Ms Hill dated 15 July, 21 July, 2 August, and 4 August 2021.
[4] Form F3, attachment MISC-1 and document 11 attached to the Respondent’s outline of submissions.
[5] Respondent’s outline of submissions at [27] – [30]. And witness statement of Mr Jason Grogan.
[6] Respondent’s outline of submissions at [45] – [53].
[7] Applicant’s outline of submissions at [1]-[4].
[8] Applicant’s outline of submissions at [5] – [8].
[9] Applicant’s outline of submissions at [10] – [13].
[10] Iannello v Motor Solutions Australia Pty Ltd [2010] FWA 3125.
[11] Exhibit A2 and witness evidence.
[12] Exhibit R1, Witness statement of Mr Jason Grogan 2 December 2021 and annexure 1.
[13] Exhibit A3 and witness evidence.
[14] Exhibit A1, Witness statement of Ms Amanda Hill 22 December 2021 and annexures AJH-1 and AJH-2.
[15] Exhibit A1 at [41].
[16] Exhibit A1 at [50]-[53].
[17] Exhibit A1 at [59]-[60].
[18] Exhibit A1, attachment AJH-5.
[19] Exhibit A1, attachment AJH-7.
[20] Witness evidence of Mr J Grogan.
[21] Christina Adams v Blamey Community Group[2016] FWCFB 7202 at [14].
[22] Rule 42 and 43 of the Melbourne International Shooting Club Inc.
[23] Exhibit A1, attachment AJH-7.
[24] Section 389(1)(b) of the Fair Work Act 2009.
[25] Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].
[26] Giuseppina (Josie) Cartisano v Sportsmed SA Hospitals Pty Ltd and Sportsmed SA Hospitals Pty Ltd v Giuseppina (Josie) Cartisano[2015] FWCFB 1523.
[27] Shorten v Australian Meat Holdings Pty Ltd (1996) 70 IR 360, citing Mullany v Active Concrete (1995) 64 IR 237.
[28] Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge [2013] FWCFB 431
[29] Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32].
[30] PR742525.
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