Carney Broadbent v Irrigear Stores Ltd

[2013] FWC 5902

[2013] FWC 5902

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Carney Broadbent
v
Irrigear Stores Ltd
(U2012/13083)

COMMISSIONER CRIBB MELBOURNE, 26 AUGUST 2013

Application for unfair dismissal remedy - jurisdiction objection - application dismissed.

[1] This decision concerns an application by Ms Carney Broadbent (the applicant), under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in respect of her dismissal by Irrigear Stores Ltd (Irrigear Stores, the respondent).

[2] The application was the subject of a conciliation conference on 27 September 2012 but an agreement was not reached.

[3] Following the conference, Irrigear Stores lodged a jurisdictional objection to the Commission dealing further with the application. This was on the primary ground that Ms Broadbent’s redundancy was genuine in accordance with section 389(2) of the Act.

[4] The jurisdictional objection was heard in Darwin on 16 and 17 April 2013. Ms Broadbent represented herself whilst the respondent was represented by Mr N Tindley, solicitor. Ms Broadbent gave evidence as did Mr T O’Connor, formerly Chief Executive Officer of Irrigear Stores. Ms L O’Grady, Accounts Manager with the respondent, was called to give evidence by Ms Broadbent. Mr S Treptow, General Manager gave evidence for the respondent.

[5] Written Closing Submissions were filed by Ms Broadbent on 8 May 2013 and by the respondent on 15 May 2013. The applicant also filed Submissions in Reply on 29 May 2013.

The Legislation

In determining the respondent’s jurisdictional objection, the applicable section of the Act is:

“389 Meaning of genuine redundancy

(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.”

Preliminary view

[6] At the conclusion of the hearing on 17 April 2013, the Commission expressed an ex tempore preliminary view on a number of matters. 1 These were as follows:

Section 389(1)(a)

[7] With respect to section 389(1)(a), the view was expressed that the change that Mr Treptow wanted to make was a genuine change related to an operational requirement. This was that, in terms of the future of Irrigear Stores, there needed to be a specialist marketing and communications person. Otherwise, there could be severe negative consequences for the organisation in the future. 2

[8] The Commission was also satisfied, based on Mr Treptow’s evidence, that the change was not “engineered” to resolve the issue of the relationship between Ms Broadbent and Ms O’Grady. Whilst acknowledging Ms Broadbent’s perspective on this, the Commission indicated that it was satisfied that there was not such a linkage. 3

[9] Further, the Commission had formed the view that the role that was advertised was not simply an extension of Ms Broadbent’s former position. This was on the basis that it was a completely different job in that the requirement was for a marketing person with five years or more experience ie. someone with a marketing rather than a customer relations focus/background. 4 In addition, it seemed to the Commission from Ms O’Grady’s evidence that she was now undertaking a number of Ms Broadbent’s former duties and from Mr Treptow’s evidence, that he was doing that as well.5

[10] In reaching these preliminary views, the Commission indicated 6 that it was following the Full Bench decision in Ulan Coal Mines Ltd v Henry Jon Howarth and Others (Ulan Coal).7

Section 389(2)(a) and (b) - Redeployment

[11] The Commission had also formed the preliminary view that there was not the capacity or the ability to redeploy Ms Broadbent within Irrigear Stores. Mr Treptow’s evidence was accepted that he had considered redeployment. However, the Commission considered that it would not have been reasonable, in all of the circumstances, to redeploy Ms Broadbent within the organisation i.e. into Ms O’Grady’s position, as that job appeared to have developed into a very financially focused role. 8

[12] In terms of section 389(2)(b) of the Act, on the basis of Mr Treptow’s evidence and the accompanying documentation which was tendered, the Commission was satisfied that the respondent did not have the ability to redeploy Ms Broadbent anywhere other than within Irrigear Stores Ltd. 9

Section 389(1)(b)

[13] The Commission indicated, at the hearing, that it was not in a position to reach any preliminary views about section 389(1)(b) as there was insufficient material before the Commission on this subsection.

Submissions

[14] As indicated above, the parties filed written closing submissions which the Commission was to consider in light of the preliminary views expressed at the conclusion of the hearing. In addition, the parties were requested to include submissions on section 389(1)(b) in their closing submissions.

[15] I will deal with each of the sections 389(1)(a) and (b) and section 389(2)(a) and (b) in the order in which they appear in the Act.

1. Section 389(1)(a)

(a) Ms Broadbent

[16] Ms Broadbent submitted that, at no time, did she feel that her dismissal was a genuine redundancy. The manner in which she was dismissed (summarily) supported her view that the redundancy was a sham. It was said to still be open to the Commission to find that the redundancy argument was a cover to remove her from the workplace and to circumvent an unfair dismissal claim. 10 She indicated that, if Mr Treptow had spoken to her and genuinely explained the decision making process, the skills required etc (as he did in the Commission) and had genuinely consulted with her, she would have been better placed to process and accept the changes. However, as she was summarily dismissed, she was deprived of that opportunity.11

[17] With respect to her contention that the redundancy was not genuine, Ms Broadbent stated the following:

• The first substantive discussion regarding the office (“review structure”) took place at the Board meeting on 9 August 2012. 12

Mr Treptow’s evidence was that, during the annual conference on 10 - 12 August 2012, he had informal chats with individual Board members. This was said to be the extent of Mr Treptow’s review. 13

During the conference, therefore, Mr Treptow was planning the redundancy of her position. 14

Mr Treptow did not take the opportunity to discuss his considerations with Ms Broadbent during the conference. 15

Following raising with the Board a review of the company structure, only two weeks lapsed between Mr Treptow going from a “generic” to a “fixed position”, without the full knowledge of the Board. 16

It was curious that Mr Treptow, in the best interests of the membership, removed a link between the membership base and Head Office. The role was then left empty for four weeks before the new marketing person commenced. 17

Despite there allegedly being a redundancy policy, Ms Broadbent had not seen it and it was not tendered into evidence. 18

If it was a genuine redundancy, Mr Treptow should have complied with the company's values - which he did not. 19

[18] It was argued by Ms Broadbent that it was open to the Commission to infer from Mr Treptow’s evidence that Mr Treptow was unable to manage appropriately and that he took the easy route and “restructured” her out. 20

(b) Irrigear Stores

[19] It was argued that the applicant’s submissions were inconsistent with the evidence before the Commission and that they were not capable of disturbing the Commission’s preliminary view on this issue. 21

[20] Mr Treptow’s evidence about the process he undertook in reaching the decision to implement operational changes within the business was said to be very clear. It was stated that Ms Broadbent had the opportunity to challenge Mr Treptow’s evidence but did not do so. 22 Further, Mr Treptow was said to have given evidence about how he had determined that the applicant’s position was to be made redundant and also that the workplace dispute between Ms Broadbent and Ms O’Grady had no bearing on that decision.23

[21] Irrigear Stores submitted that the preliminary view of the Commission that it was satisfied that the respondent had met the requirements of section 389(1)(a) must stand. This was on the basis that the decision of the respondent to implement operational changes was not influenced by issues between Ms Broadbent and Ms O’Grady. Rather, it was stated that the applicant’s position was no longer required to be performed by anyone due to operational changes in the business. 24

(c) Considerations and Conclusion

[22] I have considered carefully all of the written submissions of the parties on this aspect of the issue. In light of the submissions, I have also reviewed the preliminary view expressed at the conclusion of the hearing. However, there was nothing in the written submissions which has persuaded me that my preliminary view was incorrect.

[23] Therefore, I remain of the view that Irrigear Stores no longer required Ms Broadbent’s job to be performed by anyone because of a change in the operational requirements of the organisation. The change was the need for a specialist marketing and communications person for the future of the business. I have not been convinced that the change was a ruse and an easy way out for Mr Treptow in terms of dealing with the issues between Ms Broadbent and Ms O’Grady.

[24] The Explanatory Memorandum, in relation to section 389(1)(a) of the Act, describes one of the possible changes in the operational requirements of an enterprise as the distribution of the tasks done by a particular employee to other employees and therefore the person’s job no longer exists. 25 As indicated during the hearing, in reaching this conclusion, I also rely on the Full Bench decision in Ulan Coal.

[25] Accordingly, I am satisfied that the requirements of s.389(1)(a) have been met.

2. Section 389(1)(b) - Duty to consult

(a) Ms Broadbent

[26] It was submitted by Ms Broadbent that she was not award free but that her duties are covered by the Clerks - Private Sector Award 2010 (Clerks Award) and that she was classified at a level 5 of the Award. 26 In the alternative, Ms Broadbent argued that her role could also be covered by four other awards - each of which contained a consultation clause.27 She said that that, on the one hand, Mr Treptow had diligently sought to diminish the skills required for her job, describing it as clerical in nature. On the other hand, he was stated to be arguing that she was not covered by the Clerks Award because her role was too senior.28 Ms Broadbent argued that Mr Treptow could not have it both ways in that he cannot say that she was too senior to be covered by the Clerks Award but that she did not have the qualifications/capacity to perform the new role.29

[27] The Clerks Award was said to contain a consultation clause regarding major workplace change (clause 8). 30 Ms Broadbent argued that, at no point did Mr Treptow discuss the restructuring of the organisation with either herself or Ms O’Grady - both of whom were affected by the proposed significant changes. It was recounted that it was common ground that Mr Treptow only told her, on 24 August 2012, that he had made a definite decision to introduce major changes which were likely to have significant effect on her. Prior to being dismissed, Ms Broadbent stated that she had not been told that she may be affected by the proposed changes.31

[28] It was contended that Mr Treptow’s evidence, regarding the process he undertook when advising her of the decision, was that he was only concerned for himself. She stated that she was significantly and adversely affected by not only losing her job but also the manner in which she was advised. This was said to have been, in many respects, as bad if not worse than the decision itself. 32

[29] With respect to significant effects, Ms Broadbent summarised these as follows:

• The emotional affect of her dismissal. 33



• The manner of her dismissal was shocking as she was not given a legitimate opportunity to discuss the issues with Mr Treptow. 34



• It is open to the Commission to find that Mr Treptow’s decision to summarily dismiss her was pre-determined and heartless. 35



• The effect of Mr Treptow asking her to leave immediately was to fire her. It was said that her feeling that she had been fired was not unreasonable. She also felt that she was the one being punished because, a week prior, she had again raised Ms O'Grady’s bullying with Mr Treptow. Further, being unable to work out the notice period reinforced the punitiveness/convenience of Mr Treptow’s decision making. 36

Leaving Ms Broadbent in the role until the new position was established would have been more prudent and good commercial sense. 37

• A severe financial effect on her and on her fiance. 38



• Reputational damage due to the manner in which she was removed from the office. It could reasonably have been concluded by the membership that she had been fired for something serious. 39

[30] In terms of the Clerks Award’s requirement for the employer to discuss change (clause 8.2), it was stated by Ms Broadbent that she was effectively the last to be notified once a definite decision was made. She recalled being handed a letter containing a Settlement and Release Agreement and was told to leave the office immediately. It was recalled that she had initiated what discussion there was which was then explained away or rebutted by Mr Treptow without any consideration. Ms Broadbent stated that there was nothing consultative about the meeting. It was her view that the letter/Settlement Agreement was not a discussion paper but a Notice of Dismissal. 40

[31] Further, Ms Broadbent submitted that, even if the Commission found that she was not covered by an award, it could still be found that she was entitled to have trust and confidence in her employer. This was said to be based on the implied contractual term of “good faith”. She was therefore entitled to believe that the employer would act in accordance with the organisation’s Mission and Values Statement. However, it was stated that this did not occur. 41

(b) Irrigear Stores

[32] The respondent argued that Ms Broadbent was not covered by any modern award or enterprise agreement. Therefore, it was said that there was no duty to consult with Ms Broadbent regarding her redundancy. 42

[33] Ms Broadbent’s view that her employment was covered by the Clerks Award and that she was classified at level 5 was said to be flawed. This was on the basis that Ms Broadbent’s tasks were not “wholly or principally” clerical in nature. It was said to be common ground that the applicant’s position was Member Services Manager. The respondent argued that the applicant’s status as a Manager means that she is not covered by the Clerks Award as professional and managerial employees have been found to not be clerks. 43

[34] It was stated that Ms Broadbent’s evidence was that her key responsibility was the management of and the engagement of members. She had compared this with Ms O’Grady’s role which was predominantly administrative. 44 Irrigear Stores acknowledged that some of the duties performed by Ms Broadbent were administrative. However, it was argued that these were incidental to her core function which was not clerical. The key achievements recounted by the applicant were said to be general marketing and member engagement tasks rather than clerical ones.45 The respondent submitted that the Commission should find that Ms Broadbent was not covered by a modern award or an enterprise agreement so that there was no obligation for it to consult with her in relation to her redundancy.46

[35] In the alternative, Irrigear Stores contended that, if the Commission found that the applicant was covered by a modern award, it had complied with any obligation to consult. This was on the basis that the respondent consulted with Ms Broadbent as soon as practicable after a definite decision had been made to introduce change. Mr Treptow’s evidence, about the steps taken leading up to making a definite decision to restructure the business together with then arranging to meet with Ms Broadbent, was highlighted in this regard. 47

[36] Further, it was argued that Ms Broadbent’s and Mr Treptow’s evidence made it clear that the consultation occurred. The evidence was said to show that the meeting on 24 August 2012 involved a discussion of the reasons for the restructure, its impact on the applicant and the steps taken by Irrigear Stores to consider alternative employment opportunities. In addition, the respondent stated that Ms Broadbent put her case to be retained to Mr Treptow. The applicable parts of the transcript were highlighted in this regard. 48 It was submitted that, when Ms Broadbent’s evidence and that of Mr Treptow, regarding the meeting on 24 August 2012, was considered, the requirements of the Act were fully met.49 This was on the basis that Mr Treptow discussed the effects of the changes and discussed the steps he had taken to try to identify other roles into which Ms Broadbent could be redeployed. As well, Mr Treptow was said to have given consideration to the matters raised by the applicant.50

[37] Irrigear Stores argued that it had gone further than was required under the award. This was due to Mr Treptow and Ms Broadbent having discussed the basis of the decision; Ms Broadbent raising concerns about the genuineness of the redundancy and asking why it was she who was to be made redundant. It was stated that Mr Treptow gave consideration to these issues and gave responses to the applicant which clarified those issues. 51 The respondent contended that the applicant's evidence showed that Mr Treptow had done these things despite her closing submissions stating the contrary. The issue was said to therefore be that the applicant did not believe that the discussions and consideration by Mr Treptow were genuine. It was stated that the applicant could not expect the Commission to make an adverse finding about Mr Treptow’s genuineness when this was not put to Mr Treptow in cross examination.52

[38] In addition, the respondent submitted that the applicant’s contention that, if Mr Treptow had genuinely discussed with her/given genuine consideration/care to her future and genuinely considered her capacity for the role, she would have been better placed to process and accept the changes, was said to be contrary to her approach during the hearing. It was recounted that Ms Broadbent had continually pressed two points - that her job still exists so it cannot be redundant and that she should have been given training to take up the marketing role. The respondent submitted that it was open to the Commission to conclude that nothing that Mr Treptow could have said or did, during the meeting on 24 August 2012, would have satisfied the applicant or caused her to reach a conclusion other than the one she did. 53

[39] Finally, it was stated by Irrigear Stores that, if the Clerks Award applies, Ms Broadbent was given a document on 24 August 2012 which provided detailed information about the changes and their impact on the applicant. This was said to meet the requirements of clause 8.2(c) of the Clerks Award and it was stated that it was provided prior to the decision to end the applicant's employment. 54

[40] Therefore, it was submitted that the respondent has met any obligation, if one exists, to consult with the applicant about the redundancy.

(c) Considerations and Conclusion

[41] Both Ms Broadbent and the respondent provided written submissions on this issue. These have been taken into account in reaching a conclusion about whether Ms Broadbent was covered by a modern award or enterprise agreement and therefore whether there was a duty for Irrigear Stores to consult with Ms Broadbent. It was common ground that Ms Broadbent was not covered by an enterprise agreement and that her title was Member Services Manager.

[42] Ms Broadbent argued that she was not award free but was covered by the Clerks Award and classified at level 5. In the alternative, she contended that there were also three other modern awards that covered her role.

[43] For its part, Irrigear Stores contended that, based on the relevant authorities, as a managerial employee, Ms Broadbent was not a clerk. Further, it was argued that the test was whether Ms Broadbent’s tasks were “wholly or principally” clerical in nature. Whilst acknowledging that some of her duties were administrative, the respondent stated that these were incidental to her core role.

[44] The awards, other than the Clerks Award, which Ms Broadbent referred the Commission to, were the Gardening and Landscaping Services Award 2010, the Horticulture Award 2010 and the Nursery Award 2010. All of these awards are industry awards and their classification structures do not include clerical positions. The Clerks Award, on the other hand, covers employees engaged in clerical work, including administrative duties, of a clerical nature. 55 Therefore, I find that, if any of the modern awards is to be applicable, it is only the Clerks Award which might, theoretically, have that capacity.

[45] With respect to the Clerks Award, level 5 of the Clerks Award sets out the indicative typical skills and duties at that level. They include applying knowledge of an organisation’s objectives, performance, projected areas of growth, product trends and general industry conditions. Other duties include the application of computer software packages; providing reports for management in account/financial; staffing; legislative requirements and other company activities; a call centre principal customer contact leader and human resources type administrative tasks. 56

[46] The respondent agreed that Ms Broadbent’s primary function was the management of, and engagement with, Irrigear Stores members. 57 Her duties were stated to include communications with member stores; maintaining members and supplier lists; liaising with various suppliers on behalf of the stores; production of the respondent’s branded calendars; planning the Regional meetings and the annual National Conference; purchase of promotional materials and administrative tasks (mail collection and office supplies).58

[47] During her evidence, Ms Broadbent explained that Irrigear Stores was setting up a website and developing a YouTube channel and that she was helping promote the Irrigear brand through community marketing events by providing marquees. It was said that she had been instrumental in a new Irrigear brand uniform and in developing a tool kit for members on available services and in putting together a promotional products catalogue. 59 Ms Broadbent indicated that she had excellent organisational, administrative, and communication skills.60 In addition, she stated that the core part of her position was organising events, conferences, board meetings and regional meetings. To do these tasks required her to have project and time management skills. Ms Broadbent referred to the highly successful annual National Conference in Darwin in 2012.61

[48] On the basis of the evidence given by Ms Broadbent about her role and duties, I have formed the view that Ms Broadbent is not covered by the Clerks Award. The work performed by Ms Broadbent is not able to be described as “wholly or principally” clerical work. Her work was largely customer (member) relations and communication and the management of customers (the members). It also involved the organisation of a range of meetings and conferences which required time and project management skills. Ms Broadbent also produced a weekly emailed newsletter to members and was involved in promoting the Irrigear brand to members. There was obviously some work of a clerical/administrative nature. However, given the description of Ms Broadbent’s role above, I find that Ms Broadbent was not performing “wholly or principally” clerical work and so was not covered by the Clerks Award.

[49] Therefore, as I am satisfied that Ms Broadbent was not covered by a modern award or enterprise agreement, there was no obligation for Irrigear Stores to consult with Ms Broadbent about her redundancy.

3. Section 389(2) - Redeployment

(a) Ms Broadbent

[50] It was submitted by Ms Broadbent that she had the skills and capacity to undertake the financial/administrative role, particularly as the role was taking on some of her previous duties. She said that she had an excellent relationship with the membership. Ms Broadbent stated that, in a combined accounts/Member Services Manager position, she would have been able to maintain the relationship with membership whilst the new marketing person undertook their review. It was observed that it appeared that, on the evidence, Mr Treptow gave no thought to this approach. 62

[51] Ms Broadbent argued that the evidence showed that it was open for Mr Treptow to consider Ms O'Grady's competence in her role. To this end, Ms Broadbent provided a number of examples. 63 She said that she had a broader beneficial skill set than Ms O'Grady and should, therefore, have been considered as redeployable into her (Ms O’Grady’s) position. This was on the basis that Mr Treptow had stated that her redundancy was in the best interests of the company. However, Ms Broadbent indicated that she was not suggesting that Mr Treptow had to give her Ms O'Grady’s job.64 It was acknowledged that Mr Treptow may still have made the same decision. However, it was contended that it was her most recent complaint against Ms O'Grady which proved to be the catalyst for her dismissal.65

[52] Further, it was submitted that Mr Treptow's evidence was that he had not discussed her dismissal with Ms O'Grady. This failure to consult with Ms O'Grady was described as presumptive and showing confidence in Ms O'Grady's willingness to accept significant changes that were going to result in her having more responsibility. Ms Broadbent argued that the fact that Mr Treptow gave no consideration to this issue reflects on the genuineness of the change and raises the question as to whether it was a performance management ruse. 66

[53] Ms Broadbent stated that Mr Treptow's evidence about upskilling her into the new role was inconsistent with the expectation she was given at her interview. This was said to have been to encourage her to study so that she would stay, which constituted an offer made and accepted. It was also described as an expectation that she had relied on in accepting the role. She had regarded this offer as forming part of her employment contract. 67 Further, it was recounted that Mr Treptow's evidence was inconsistent with his encouragement and what was agreed arising out of her January 2012 performance review. In addition, Ms Broadbent argued that Mr Treptow had ignored that she was consistently advancing and evolving in the role. She also said that Mr Treptow had relied in large part on his conversation with Mr Terrazas who was not called as a witness.68

[54] With respect to section 389 (2)(b) of the Act, Ms Broadbent questioned as to why there was a Head Office if there were no associated entities. She also argued that Mr Treptow gave no consideration to approaching any of the members to ascertain if there were any vacant positions. It was pointed out that there were half a dozen well located stores who may have been interested in taking her on. Ms Broadbent said that it was difficult to imagine that, if it was a genuine redundancy, Mr Treptow would not have seen the benefits of trying to secure her a role in one of the major stores, particularly given her popularity with the membership. 69

[55] It was submitted by Ms Broadbent that, irrespective of whether or not there was an obligation, it would have been a simple gesture of human concern/kindness for Mr Treptow to have attempted to redeploy her to a member store. Further, she contended that there would have been the benefit to the respondent of having an ex-employee working with a member and the member would have benefitted from having a knowledgeable and competent employee. 70

[56] Finally, Ms Broadbent argued that it is safe for the Commission to find that the redundancy was not consistent with section 389(2) of the Act, nor with section 389(1)(a) and (b). 71

(b) Irrigear Stores

[57] The respondent stated that Ms Broadbent’s arguments on this issue appeared to be that:

● She should have been redeployed into Ms O’Grady’s position

● She should have been given training to obtain the skills required for the marketing specialist role

● She should have been redeployed into a position with a member store of Irrigear Stores Limited. 72

[58] In response, the respondent argued that none of these arguments could be sustained. Firstly, it was stated that the applicant’s job was one that was no longer required to be performed by anyone following the restructure. Ms Broadbent was said to have accepted this on the basis of her evidence. Irrigear Stores said that it is accepted at law that the fact that some, or all of the duties performed by Ms Broadbent are still required to be performed by the organisation, did not mean that the position was not redundant. The applicant’s duties were absorbed across the Accounts Manager role, the General Manager and marketing specialist (to a lesser degree). 73

[59] Irrigear Stores agreed that the obligation to redeploy is broad. However, it was stated that the obligation has never been extended to requiring that the person be redeployed into a role filled by another person such that the other person is made redundant. The Explanatory Memorandum was referred to in support of this contention. 74 It was stated that there was nothing unusual in this case which would lead the Commission to conclude that the respondent would be required to terminate Ms O'Grady’s employment to allow Ms Broadbent to be redeployed into her role.75

[60] In terms of the Marketing Specialist role, it was argued that Mr Treptow gave very clear evidence about what was required for that role. As well, it was stated that Mr Treptow was clear about why he did not think it was appropriate to provide Ms Broadbent with training to take up this role. This was based on the skills and experience Mr Treptow was looking for and the work that would be carried out in that role. It was argued that it was unreasonable to require the respondent to provide the applicant with the training as, even then, she still lacked the skills and experience required. The respondent indicated that Ms Broadbent did not have the skills or competence to undertake the marketing specialist role given the high level of experience required. Also, it was stated that, even with a reasonable period of retraining, the applicant would not have been brought up to the required standard. Therefore, it was argued that the applicant could not have been redeployed into the marketing specialist role. 76

[61] With respect to whether Ms Broadbent could have been redeployed to a role in a member store, it was stated that the Commission's preliminary view was correct. This was on the basis that Irrigear Stores Ltd and its member stores are not associated entities. The documentary evidence submitted of the ownership structures of the respondent and the member stores was said to support this contention. In this situation, it was argued that Irrigear Stores is under no obligation to canvass redeployment opportunities with unrelated businesses for the applicant. 77

[62] It was submitted, therefore, that the preliminary view of the Commission need not be disturbed and that the respondent has satisfied the requirements of section 389(2) of the Act. 78

(c) Consideration and Conclusion

[63] Having considered all of the material before me and having reviewed the preliminary view expressed, I have not been persuaded that it was reasonable, in all of the circumstances, for Ms Broadbent to have been redeployed within the employers enterprise (Irrigear Stores Ltd). The only other role in the organisation, apart from the General Manager, was Ms O’Grady’s role. It is my view that it would not have been reasonable to make Ms O’Grady redundant and to redeploy Ms Broadbent into that role. The Explanatory Memorandum to s.389(2) makes this clear. As indicated during the hearing, on the basis of the evidence before me, I was satisfied that the member stores were not associated entities of the respondent. Therefore, they are not relevant in terms of the requirements of s.389(2) of the Act.

[64] Accordingly, taking into account my findings that:

• Irrigear Stores no longer required Ms Broadbent’s job to be performed by anyone because of a change in the operational requirements of the organisation (s.389(1)(a)) and



• Ms Broadbent was not covered by a modern award or enterprise agreement so, therefore, there was not obligation on Irrigear Stores to consult about her redundancy (s.389(1)(b)) and



• It would not have been reasonable in all of the circumstances for Ms Broadbent to be redeployed within Irrigear Stores Ltd (s.389(2));




I find that Ms Broadbent’s dismissal was a case of genuine redundancy.

[65] Section 385 of the Act is a follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[66] As each of the requirements of section 385 are joined by the word “and”, and as the requirement in s.389(d) has not been met, the Commission has no jurisdiction to continue hearing the application. The application is therefore dismissed.

[67] An order to this effect will be issued separately.

COMMISSIONER

Appearances:

Ms C Broadbent representing herself

Mr N Tindley Solicitor for the Respondent

Hearing details:

2013.

Darwin

April 16, 17.

Final written submissions:

For the Applicant. 8 May 2013.

For the Respondent. 15 May 2013.

For the Applicant. 29 May 2013.

 1   Transcript PN 1187 - 1196.

 2   Ibid PN 1190 - 1191.

 3   Ibid PN 1191 - 1192.

 4   Ibid PN 1193.

 5   Ibid PN 1194 - 1195.

 6   Ibid PN 1195.

 7   [2010] FWAFB 3488.

 8   Transcript PN 1188.

 9   Ibid PN 1189.

 10   Final submissions for Carney Broadbent, submitted 8 May 2013, at page 2.

 11   Ibid.

 12   Ibid at page 3.

 13   Ibid.

 14   Ibid at page 4.

 15   Ibid.

 16   Ibid.

 17   Ibid at pages 4 - 5.

 18   Ibid at page 5.

 19   Ibid at pages 5 - 6.

 20   Ibid at page 5.

 21   Closing submissions of the Respondent, dated 15 May 2013, at paragraphs 5 - 6.

 22   Ibid at paragraph 7.

 23   Ibid at paragraphs 7 - 8.

 24   Ibid at paragraphs 2 and 11.

 25   Fair Work Explanatory Memorandum, at paragraph 1548.

 26   Final submissions for Carney Broadbent, submitted 8 May 2013, at page 8.

 27   Applicant’s Closing Submissions in Reply, dated 29 May 2012, at page 3.

 28   Ibid at pages 1 - 2.

 29   Ibid at page 2.

 30   Final submissions for Carney Broadbent, submitted 8 May 2013, at page 8.

 31   Ibid at pages 8 - 9.

 32   Ibid at pages 9 - 10.

 33   Ibid at page 10.

 34   Ibid.

 35   Ibid.

 36   Ibid at pages 10 - 11.

 37   Ibid at page 11.

 38   Ibid.

 39   Ibid at page 12.

 40   Ibid at page 13.

 41   Ibid.

 42   Closing Submissions of the Respondent, dated 15 May 2013, at paragraph 20.

 43   Ibid at paragraph 23.

 44   Ibid at paragraph 24.

 45   Ibid at paragraph 25.

 46   Ibid at paragraph 26.

 47   Ibid at paragraphs 27 - 28.

 48   Ibid at paragraph 30.

 49   Ibid at paragraph 31.

 50   Ibid at paragraph 33.

 51   Ibid at paragraphs 34.

 52   Ibid at paragraphs 35 - 36.

 53   Ibid at paragraph 37.

 54   Ibid at paragraph 38.

 55   Clause 4.1 of the Clerks - Private Sector Award 2010.

 56   Ibid at Schedule B.6.Z.

 57   Closing submissions of the Respondent, dated 15 May 2013, at paragraph 24.

 58   Exhibiti R1 at paragraph 7.

 59   Transcript PN 454.

 60   Transcript PN 509.

 61   Transcript PN 510.

 62   Final submissions for Carney Broadbent, submitted 8 may 2013, at page 14.

 63   Ibid at page 15.

 64   Closing Submissions in reply of the applicant, dated 29 May 2013, at pages 3 –4.

 65   Final submissions for Carney Broadbent, submitted 8 May 2013, at page 15.

 66   Ibid at page 15.

 67   Ibid at pages 15 – 16 and Closing Submissions in Reply of the Applicant, dated 29 May 2013, at page 4.

 68   Final Submissions for Carney Broadbent, submitted 8 May 2013, at page 16.

 69   Ibid at pages 16 – 17.

 70   Ibid at page 17 and Closing Submissions in Reply of the Applicant, dated 29 May 2013, at pages 4 –5.

 71   Final submissions for Carney Broadbent submitted 8 May 2013 at page 17.

 72   Closing Submissions of the Respondent, dated 15 May 2013, at paragraph 12.

 73   Ibid at paragraph 13.

 74   Ibid at paragraph 14.

 75   Ibid at paragraphs 15 - 16.

 76   Ibid at paragraph 17.

 77   Ibid at paragraph 18.

 78   Ibid at paragraph 19.

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