Ashley McKay v White & McAllister (Contractors) Pty Ltd

[2013] FWC 2606

[2013] FWC 2606

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ashley McKay
v
White & McAllister (Contractors) Pty Ltd
(U2013/5622)

COMMISSIONER DEEGAN CANBERRA, 30 APRIL 2013

Application for unfair dismissal - jurisdictional - genuine redundancy

[1] This decision concerns an application for unfair dismissal made pursuant to s.394 of the Fair Work Act 2009 (the Act) by Mr Ashley McKay (the applicant) in relation to the termination of his employment by White & McAllister (Contractors) Pty Ltd (the respondent).

[2] The respondent claimed that the applicant had not been unfairly dismissed as the dismissal was a case of genuine redundancy.

[3] Statements of evidence were filed on the respondent’s behalf by the respondent’s Managing Director, Chief Financial Officer and Operations Manager. It was their evidence that:

• the termination of the applicant’s employment was a direct result of a restructure of the respondent’s finance area which followed the introduction of a new accounting system;



• the applicant’s position was one of three made redundant as a result of the restructure;



• the new position of Assistant Accountant had been created to absorb those duties of the three positions which were still required to be carried out;



• the applicant did not apply for the new, more senior, position which called for tertiary qualifications he did not possess;



• there were no other positions within the respondent to which the applicant could reasonably have been redeployed.

[4] It was also submitted on the respondent’s behalf that the enterprise agreement which covered the applicant’s employment was the White & McAllister Contractors Pty Ltd Office Personnel Employee Collective Agreement 2008 (the Agreement). It was put that under the Agreement, which totally displaced the Clerks- Private Sector Award 2010, that there was no obligation on the respondent to consult about the redundancy.

[5] The applicant did not dispute the evidence of the respondent’s witnesses which was relevant to the question of the genuineness of the redundancy. He accepted that the Agreement identified by the employer applied to his employment and did not contain any obligation on the employer to consult about the redundancy. He agreed that there was no position within the respondent to which he could be redeployed other than the position of Assistant Accountant. He conceded that he did not have the tertiary qualifications required for that position.

[6] Section 385 of the Act provides that a person may only be found to have been unfairly dismissed if the tribunal is satisfied that the dismissal was not a case of genuine redundancy.

[7] The meaning of genuine redundancy is set out in s.389 of the Act as follows:

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s 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.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.

[8] I am satisfied that the respondent no longer required the applicant’s job to be performed by anyone following the introduction of the new finance computer system and the restructure of that part of the company covering payroll and accounts. I accept that some duties previously performed by the applicant would still be required to be carried out and that these would be performed by the person in the Assistant Accountant position. It was clear from the duty statements included with the respondent’s evidence that the role of Assistant Accountant was a more senior position than that occupied by the applicant, with additional payroll functions that had not been the applicant’s responsibility.

[9] It was common ground that the employer did not consult with the applicant about the redundancy. However, I am satisfied, and the applicant accepted, that the Agreement which applied to his employment did not contain any obligation upon the employer to consult about the redundancy. I am also satisfied that that Agreement displaced, in its entirety, the modern award which covered the applicant’s employment in accordance with s.57(1) of the Act. As there was no obligation on the employer to consult about the redundancy the lack of consultation does not alter the status of the dismissal.

[10] As the applicant’s dismissal was a case of genuine redundancy it cannot be an unfair dismissal for the purposes of s.385 of the Act. The application is dismissed.

Appearances:

The applicant in person.

Mr A. Cameron, for the respondent.

Hearing details:

2013.

Hobart:

April 24.

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