David Joseph v Amandon Pty Ltd T/A World Business Travel

[2014] FWC 687

[2014] FWC 687

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Joseph
v
Amandon Pty Ltd T/A World Business Travel
(U2013/429)

COMMISSIONER ROBERTS SYDNEY, 29 JANUARY 2014

Application for unfair dismissal remedy - referral from Full Bench - valid reason - harsh, unjust or unreasonable.

[1] This decision concerns an application originally lodged on 18 February 2013 by Mr Joseph pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of his employment by Amandon Pty Ltd T/A World Business Travel (Amandon or the Company). After unsuccessful conciliation, the application proceeded to arbitration hearing before her Honour Deputy President Booth in Sydney on 9 July 2013. Briefly, the Deputy President dismissed Mr Joseph’s application by way of an ex tempore ruling on 9 July 2013 with a finding that Mr Joseph’s employment was terminated on account of a genuine redundancy arising from business reasons associated with a general downturn in Amandon’s business. Mr Joseph’s substantive application was therefore dismissed on that jurisdictional ground.

[2] Mr Joseph appealed the Deputy President’s decision and order 1 and the appeal was heard by a Full Bench of the Commission in Sydney on 29 October 2013. I was a member of that Full Bench. On 11 November 2013, the Full Bench issued a decision2. In relation to the genuine redundancy question, the Bench considered whether the consultation required by s.389 of the Act had occurred. The Bench went on to say:

“[30] In considering this question we have had regard to the evidence before the Deputy President and the supplementary evidence given by Mr Joseph in the appeal. On the basis of that evidence we are not satisfied that Mr Amaral consulted with Mr Joseph about his decision to make Mr Joseph redundant. It is clear to us that Mr Amaral did not raise the matter with Mr Joseph at the meeting on 22 January. His evidence was that he intended to raise it but the meeting ended before he had the opportunity. Raising the revised job description may have been a precursor to consultation of the more fundamental decision, but he simply did not get to that point. If, as he suggested, he intended to raise the matter but because the discussions about revised job descriptions led to an acrimonious and abrupt end to the meeting, he still had the obligation to engage in the necessary consultation in an appropriate manner and had every opportunity to do that in a subsequent meeting with Mr Joseph. On the basis of the totality of the evidence we are satisfied that no further efforts at consultation occurred until the letter of termination was given to Mr Joseph on his return to work on 24 January.

[31] It follows from this conclusion that the second element of the definition of genuine redundancy in s.389 of the Act is not satisfied and the conclusion of the Deputy President in this regard cannot stand. We add that we have no reason to doubt the conclusions of the Deputy President in relation to a consideration of alternative positions in the exception to the definition of genuine redundancy.

Disposition of the Appeal

[32] As detailed above we grant permission to appeal because the procedure adopted by the Deputy President denied Mr Joseph an important opportunity to respond to evidence given from the bar table against his case. Further, contrary to the Deputy President’s conclusions, we find that Amandon had an obligation to consult with Mr Joseph about an impending decision to terminate his employment arising from changes to the size of its workforce and it failed to do so.

[33] The conclusion we have reached is confined to the issue of whether the termination of Mr Joseph was a case of genuine redundancy. Pursuant to s.396 of the Act this matter was required to be decided before considering the merits of the matter. As the Deputy President noted, this does not mean that the termination was unfair. That is a separate question which should be determined with the benefit of the conclusions we have reached on the preliminary issue and after giving the parties an opportunity to make any further submissions.

[34] We allow the appeal, quash the decision of Deputy President Booth and refer the matter to Commissioner Roberts to determine the outstanding issue of whether the termination of Mr Joseph’s employment was nevertheless harsh, unjust or unreasonable.”

[3] Mr Joseph’s application for relief then came before me to determine the outstanding issue of whether the termination of his employment was harsh, unjust or unreasonable. A mention and programming hearing was conducted on 25 November 2013 and an arbitration hearing on 22 January 2014. At the hearing Mr Joseph represented himself and Amandon was represented by its Managing Director, Mr Amaral. After hearing the parties and considering their written and oral submissions together with all the material before the Deputy President and the Full Bench, I issued a decision in transcript on the same day. What follows is an edited and slightly expanded version of my ex tempore ruling and is being issued in this form as a result of a request from Mr Amaral on behalf of Amandon.

[4] My ex tempore decision on 22 January 2014 opened with a brief history of this matter and the outcome of Mr Joseph’s earlier appeal. As that material is covered earlier in this decision, I will not repeat it.

[5] Section 387 of the Act provides:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”

[6] Before considering the questions of reinstatement and/or compensation, I must first determine whether there was a valid reason for the termination of Mr Joseph’s employment. In that regard, the Full Bench decision relevantly said at paragraph 24:

“In our view the evidence clearly establishes that Mr Joseph’s job was eliminated and that a restructure of jobs in view of the economic circumstances was central to the decision to terminate his employment. The personal conflict that existed between Mr Amaral and Mr Joseph was part of the context but in our view the Deputy President correctly concluded that it did not alter the operational reason for the termination of Mr Joseph’s employment and the first element of the test of genuine redundancy in s.389(1)(a) was satisfied.

[7] Paying regard to the above reasoning by the Full Bench, I am satisfied, on balance, that there was a valid reason for the termination of Mr Joseph’s employment based on operational reasons. The termination would almost certainly still have occurred had the Company correctly carried out its obligation to consult with Mr Joseph, thereby effecting a termination on the basis of a genuine redundancy.

[8] I do not intend to traverse all of the evidence and submissions of the parties in relation to the harsh, unjust or unreasonable question. However, I have paid regard to all the relevant material in making my determination. All in all, I find that the termination of Mr Joseph’s employment was for a valid reason but was in all the circumstances, harsh, largely based on the failure by Amandon to consult with him about his proposed redundancy. The events of 22 January 2013, including a verbal altercation between Mr Joseph and Mr Amaral, caused Mr Amaral to bring forward the termination of Mr Joseph’s employment about which he had already reached a business decision earlier. The altercation strongly encouraged Mr Amaral to bring his decision to a head forthwith. In that context I am not convinced that Mr Joseph would have been employed by the Company for any extended period of time even if the proper consultation with him had occurred. The failure by Amandon to properly handle the ending of the termination relationship rendered the termination harsh, and I so find.

[9] Section 390 of the Act provides that the Commission may order a person’s reinstatement or the payment of compensation to a person if the Commission is satisfied that the person was protected from unfair dismissal at the time of dismissal and that the person has been unfairly dismissed. Both of those criteria are met in the case of Mr Joseph.

[10] It is not controversial that the first remedy to be considered by the Commission after making a finding that a dismissal was unfair, is the question of possible reinstatement. In all the circumstances of this case, reinstatement would in my view be both impracticable and undesirable given the acrimonious relationship existing between Mr Joseph and the Company and Mr Amaral. In any event, reinstatement is not sought by Mr Joseph. In essence, the employment relationship could never be restored and given the conclusions reached by the Full Bench in relation to the genuineness of the economic circumstances of Amandon, it is highly unlikely that there would be a position available for Mr Joseph in any case.

[11] Where reinstatement is not ordered, the Commission may order the payment of monetary compensation. Section 392(2) of the Act provides:

“Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), FWA 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 FWA considers relevant.”

[12] I have paid regard to each of the criteria as set out in s.392(2). Firstly I have considered the effect of any order I intend to make on the viability of Amandon’s enterprise and have taken into account the length of Mr Joseph’s service, the remuneration he would have been likely to receive if he had not been dismissed, his efforts to mitigate his loss post-dismissal and any remuneration earned by Mr Joseph after his dismissal.

[13] I have considered Mr Joseph’s age, skillset and the financial effects on him arising from the termination of his employment. In that regard, I note that Mr Joseph is a man of middle years and I accept his submissions that he is finding great difficulty in obtaining employment on a full time basis in the field with which he has become familiar over a period of some twenty years. Pursuant to s.392(3), I am not satisfied that any misconduct by Mr Joseph contributed to the Company’s decision to dismiss him and have therefore not reduced the amount I would otherwise order.

[14] All in all, I find that the termination of Mr Joseph’s employment was for a valid reason but was in all the circumstances harsh, largely based on the failure to properly consult with him about any proposed redundancy.

[15] I have also taken into account Mr Amaral’s statements about the financial situation of the Company, and accordingly pursuant to s.393 of the Act the monies payable to Mr Joseph will be payable in two instalments.

[16] I award Mr Joseph a sum of $9230.72, equivalent to 8 weeks pay at his base rate (less tax according to law). The monies are to be paid in two equal instalments, the first no later than 11 February 2014 and the second no later than 3 March 2014. An order to this effect was issued on 22 January 2014.

[17] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’.

COMMISSIONER

 1   PR538772.

 2   [2013] FWCFB 8539.

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