Elena Peters v Menzies International (Australia) Pty Ltd T/A Menzies International

[2017] FWC 4128

[2017] FWC 4128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elena Peters
v
Menzies International (Australia) Pty Ltd T/A Menzies International
(U2017/5173)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 7 AUGUST 2017

Application for an unfair dismissal remedy – jurisdictional objection that dismissal was a case of genuine redundancy – changes in operational requirements meant applicant’s job was no longer required to be performed by anyone – employer complied with consultation obligations - reasonable redeployment not effected – jurisdictional objection dismissed – no valid reason for dismissal – no opportunity to respond – dismissal was harsh, unjust or unreasonable – dismissal was unfair – compensation awarded.

[1] On 15 May 2017, Ms Elena Peters (the applicant) applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against her former employer, Menzies International (Australia) Pty Ltd T/A Menzies International (the respondent or Menzies).

[2] The matter was heard today, 7 August 2017. Mr Pararajasingham of United Voice appeared for Ms Peters. Mr Springall, General Manager – Human Resources & Safety, appeared for the respondent.

[3] Ms Peters gave evidence on her own behalf. She was not required for cross-examination. Mr Springall gave evidence for the respondent and was cross-examined on that evidence.

[4] I gave my decision on transcript at the conclusion of the hearing. This is an edited version of that decision.

Jurisdictional objection: whether a case of genuine redundancy

[5] The respondent asserts that the applicant’s dismissal was a case of genuine redundancy. Section 389 of the Act provides as follows:

‘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.’

[6] Having heard all the evidence, I am satisfied that the respondent no longer required the applicant’s job at the David Jones store at Macarthur Square to be performed by anyone because of changes in the operational requirements of the business. In particular, I am satisfied that David Jones no longer wished the respondent to employ a full time cleaner at its store as a consequence of a refurbishment of the store.

[7] I am also satisfied that the employer complied with its obligations under the Cleaning Services Award 2010 1 to consult with Ms Peters about the redundancy. I note that the communications between the applicant and the respondent took place by email. However, this was at the instigation of the applicant, who appeared not to wish to meet with the respondent face-to-face.

[8] While the requirements in ss.389(1)(a) and (b) are satisfied, I am also satisfied that it would have been reasonable in all the circumstances for Ms Peters to be redeployed within the business. This means that her dismissal was not a genuine redundancy within the meaning of the Act.

[9] In particular, I note that the respondent originally offered the applicant a new position working as part of its defence contract at its Richmond base, in an email on 24 March 2017. On Friday 31 March 2017, the applicant responded by email confirming her acceptance of this offer. However at that point she was on sick leave and said:

‘I cannot tell you now the date of my return to work as I am currently on sick leave. I will inform you about it as soon as I am able to return to work.’

[10] The respondent responded later that day saying that they were unable to ‘permanently on an ongoing basis keep this position open and on this basis this position will be filled by Monday 3 April 2017’.

[11] The clear implication is that the offer of redeployment to the RAAF Richmond Base job was withdrawn as the applicant was unable to start by Monday 3 April as she was unwell.

[12] In the same 31 March 2017 email, the respondent then offered the applicant another position:

‘Please note at this stage, and only for a period of 5 days up to and including 7 April we can offer you a position at our Richmond (Defence, RAAF Richmond) site (Percival Street), however this position will need to be permanently filled after the before mentioned date.’

[13] The email also indicated that the respondent would be seeking a full medical assessment prior to ‘re-engaging’ the applicant.

[14] On 3 April 2017, the applicant replied that she would undergo the medical examination. She added:

‘To be honest, I am so sick of anything that relates with Menzies, I would prefer to accept your redundancy offer if it is still open.’

[15] A reasonable response to this email on the part of the respondent would have been to clarify with the applicant what ‘redundancy offer’ was open to her. Given the position of the respondent – which was that it did not consider that it needed to pay the applicant any redundancy pay – and the applicant’s willingness to undertake the medical assessment, it would have been reasonable to assume that the applicant would have been willing to accept the alternative employment (at least once she was fit to work).

[16] However the respondent did not follow up the applicant’s email until the letter of termination that the applicant received from the respondent on 24 April 2017.

[17] That letter noted that the applicant had accepted the offer of a ‘suitable alternative employment opportunity at our Richmond base, Defence contract located at Glennbroke, NSW’.

[18] It continued:

‘You replied to this request by accepting the position on 31 March 2017 however you could not provide a definite date of your return to work. As this position was required to be filled in accordance with our client’s reasonable requests, we offered you another suitable alternative employment opportunity located at Richmond (Defence, RAAF Richmond) site (Percival Street). We advised that you needed to reply to this within 5 days. We note that you did reply on 4 April 2017 where you stated that you wanted to accept the redundancy [payment].

Under section 120 of the Fair Work Act 2009, where the employer obtains suitable alternative employment which we have done on this occasion, and the individual refuses the suitable alternative employment opportunity, that individual is not entitled to any redundancy payment under the industrial instrument.

On the basis that you were required to advise Menzies of your intention to either accept or decline the suitable alternative employment opportunity we provided to you on 31 March 2015, we deem that your non-reply is a refusal and as such your employment is terminated on the basis of redundancy.’

[19] The respondent had on the face of it made two offers of suitable alternative employment. The first was unequivocally accepted by the applicant, but the offer was then withdrawn, because the applicant could not start at a time that suited the respondent because she was on sick leave. That was not a reasonable approach on the part of the respondent. Employees get sick. Employers have to make alternative arrangements in such cases. There was no good reason why the respondent could not have done so in this case.
[20] While the applicant did not unequivocally accept the second offer, she not unreasonably – given the way she had been treated by the respondent with regard to the first offer – queried whether the offer of redundancy pay was open. However by agreeing to the medical assessment she at least implicitly indicated that she would take up the second offer (once she was well) and assuming no redundancy pay was on the table.

[21] The respondent failed to engage with her for some weeks and then told her she was fired.

[22] Having found that this was not a case of genuine redundancy, I turn now to consider whether the dismissal was unfair.

Whether the dismissal was harsh, unjust or unreasonable

[23] It is hard to work out what the respondent’s real reason for the dismissal was. The most logical conclusion is that the applicant was dismissed because she was unable to immediately take up the offer of redeployment because she was sick. That is not a valid reason for dismissal.

[24] The applicant was not given any real opportunity to challenge that reason.

[25] I also note that the respondent is a large employer with dedicated human resource managers. I cannot resist making the observation that it should have known better.

[26] In sum, I find that the applicant’s dismissal was unfair.

Remedy

[27] Turning to the issue of remedy, I note that the applicant is not seeking reinstatement and I find that reinstatement would not be appropriate.

[28] In Kable v Greenbank, 2 the Full Bench noted that:

‘A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied. That this is so is evident from the nature of the considerations to which the Commission must have regard set out in s.392 of the Act. Compensation orders are not designed to be a form of punitive measure to punish perceived poor employment or business practices of an employer.’

[29] In relation to the factors in s.392 of the Act, I am satisfied that any order of compensation allowed by the Act would not affect the viability of the respondent’s business.

[30] The applicant had only been employed by the respondent by just over two years – a relatively short period of time.

[31] The applicant’s wage was $718 a week at the time of her dismissal – though I note that at that time she was on unpaid leave, having exhausted her paid personal leave entitlements. I also note that the applicant had medical certificates indicating she was unfit for work up until 26 May 2017. Given her unhappiness with Menzies, I think it unlikely that she would have stayed working with them for more than around eight months after the date of dismissal if she had not been dismissed (that is, until about 24 December 2017). Thus, I estimate that she would have earned around $21,500 if she had stayed employed by the respondent.

[32] The applicant obtained a new position as a contract cleaner on around 25 May 2017 earning $825 a week. I estimate she would have earned about $8250 in this role so far. I acknowledge she is on probation and that contract cleaning is a somewhat insecure occupation. If one applies a 30 per cent deduction for contingencies I estimate that she should earn about $11,000 between now and 24 December 2017, giving a total of $19,250. This suggests her loss arising from the unfair dismissal would be in the order of $2250.

[33] I do not consider there are any other factors I should take into account.

[34] This figure of $2250 (plus applicable superannuation) is therefore the amount of compensation I will order be paid to the applicant.

SENIOR DEPUTY PRESIDENT

Appearances:

H Pararajasingham for Elena Peters.

G Springall for Menzies International (Australia) Pty Ltd T/A Menzies International.

Hearing details:

Sydney.

2017.

August 7.

 1   MA000022.

 2   [2015] FWCFB 3512.

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