Chantal Daly v Joshua Luke Cox T/A Reptile Encounters

[2015] FWC 2802

[2015] FWC 2802

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Chantal Daly
v
Joshua Luke Cox T/A Reptile Encounters
(U2014/13916)

VICE PRESIDENT WATSON MELBOURNE, 24 APRIL 2015

Application for relief from unfair dismissal - Whether dismissal case of genuine redundancy - Application dismissed - Fair Work Act 2009 - ss. 394 and 385.

[1] This decision, edited from a decision on transcript on 16 April 2015, concerns an application for unfair dismissal remedy by Chantal Daly pursuant to s.394 of the Fair Work Act 2009 (the Act). The application concerns the termination of Ms Daly’s employment with Joshua Luke Cox T/A Reptile Encounters.

[2] Section 385 of the Act defines what an unfair dismissal is and it requires a number of elements to be satisfied in order to satisfy that definition.

[3] One of the elements that has been the focus of the evidence and submissions in this matter is that the dismissal was not a case of genuine redundancy.  In other words, if the dismissal was a case of genuine redundancy, it is not an unfair dismissal.  Section 389 contains a definition of “genuine redundancy” and I have referred to it in the proceedings previously.  It has a number of elements and, in essence, a genuine redundancy is where:

“(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.”

[4] Further, it is also necessary that it would not have been reasonable in all the circumstances for the person to be redeployed. If it would have been reasonable, then that takes the matter outside the definition of “genuine redundancy”. 

[5] I have considered all the evidence that has been led in this matter and I am satisfied on the basis of that evidence that Mr Cox, as the director of Reptile Encounters, who is also an employee and effectively the manager of the business - I understand owner of the business - made a decision to restructure the workforce because of the financial circumstances that the business was encountering.

[6] I think a proper view of that evidence is that the roles within the business have been restructured and the role of the experienced person with a broad range of duties that Ms Daly held, is no longer a role within the business, even though obviously some of the duties have been distributed to other employees and they are performed as required from time to time.  The business is a small business.  That is an important part of the context and it is not operating with a high level of profitability.  In fact it has incurred losses in the recent past.

[7] I accept the evidence of Mr Cox that he took steps to reduce the employment costs within the business.  He restructured the roles and the position of Ms Daly was eliminated from the organisation.  In my view, therefore, the circumstances fall within the description of a decision that the job the employee had been performing is no longer required because of operational requirements in the enterprise.

[8] There is also the question of whether consultation occurred.  It appears that it had not, but the employer contends that it was not covered by an award and there was no obligation to consult, so that matter is not significant in terms of the application of the definition of “genuine redundancy”.  The employer relies on information provided by the Fair Work Ombudsman regarding the non-application of awards and it appears to me that that approach, and that conclusion, is reasonable in the circumstances.

[9] It appears that the nature of this operation does not fit within any of the descriptions in the scope clause of the Amusement, Events and Recreation Award.  It is an unusual type of business and the scope of that award appears to relate to establishments conducted at dedicated premises which involve some significant investment at that relevant business location. This business is of quite a different nature.  I certainly do not consider it has been established that a modern award applied to the employment such as would trigger an obligation to consult about redundancy.

[10] I also consider that the evidence establishes that Mr Cox considered other redeployment opportunities, but decided that the flexibility and cost structure that was provided by the use of casual employees and employees engaged to perform work on the road, as it has been described, was appropriate for the needs of his business.  It was necessary to obtain further work and it was necessary to service that work, but there are no other jobs in existence in which it would have been reasonable in all the circumstances to redeploy Ms Daly.

[11] In all those circumstances, I consider that the termination is a case of genuine redundancy.  A redundancy is a termination that arises through no fault of an employee and for business circumstances.  The reason why genuine redundancies are excluded from the unfair dismissal provisions of the Act are that those decisions are primarily matters for employers to take and not subject to consideration by the tribunal or anyone else as to the appropriateness of business decisions.

[12] I consider that the reasons for the termination were the operational requirements.  I do not consider that the termination would have occurred for other reasons and I accept the evidence of Mr Cox that the disagreement that occurred over a work issue was no part of his decision; that he needed to take steps to take costs out of the business and he did so by making the position redundant.  I accept that the financial material does indicate the financial hardship of the business and does support the genuineness of the decision that Mr Cox has taken.

[13] In the light of those circumstances, the termination of employment cannot be an unfair dismissal and it follows that I dismiss the unfair dismissal application. 

VICE PRESIDENT

Appearances:

Ms C. Daly on her own behalf.

Mr J. Cox on behalf of Joshua Luke Cox T/A Reptile Encounters.

Hearing details:

2015.

Melbourne.

16 April.

Final written submissions:

Ms C. Daly on 17 March 2015.

Joshua Luke Cox T/A Reptile Encounters on 17 March 2015.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR563391>