Gabriel Meagher v Bundaberg and District RSL and Citizens Memorial Club Inc
[2011] FWA 6037
•21 DECEMBER 2011
[2011] FWA 6037 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gabriel Meagher
v
Bundaberg and District RSL and Citizens Memorial Club Inc
(U2011/1196)
COMMISSIONER SIMPSON | BRISBANE, 21 DECEMBER 2011 |
Application for Unfair Dismissal - failure to comply with obligation in modern award to consult about redundancy - not a genuine redundancy - dismissal unfair - compensation ordered
[1] On 15 June 2011 Mr Gabriel Meagher (“the Applicant”) made an application for an unfair dismissal remedy in accordance with section 394 of the Fair Work Act 2009 (“the Act”) against the Bundaberg and District RSL and Citizens Memorial Club Inc (“the Respondent”). On 29 June the Respondent filed a Form 3 response to the application to the application stating reason for termination was due to operational requirements and that it was a case of genuine redundancy. The Applicant is a qualified commercial cook who trained for four years. 1
[2] Throughout proceedings the Applicant was represented by a solicitor Mr Paul van Dyk and the Respondent was represented by Mr Eric Porter of Clubs Queensland.
[3] A conciliation conference was conducted on 18 July 2011 which was unsuccessful. I issued directions on 22 August 2011 for the matter to be heard at 10am on Tuesday 24 October 2011 in Bundaberg.
[4] On the 22 August 2011 the Applicant’s representative filed an application for the production of documents. This application was granted with some amendments. The documents were filed by the Respondent on 1 September 2011. It was agreed between the parties that the Respondent would call its witness Mr Colin Rankin first.
CONSIDERATION
[5] In determining this application I must first determine the jurisdictional question as to whether the termination was a genuine redundancy.
[6] Section 389 of the Fair Work Act 2009 reads 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.
[7] The Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy:
“1547 Paragraph 389 (1) (a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.
1548 The following are examples of a change in operational requirements of an enterprise:
(a) A machine is now available to do the job performed by an employee;
(b) The employer’s business is experiencing downturn and therefore the employer only needs three people to do a task or duty instead of five; or
(c) The employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.
1549 It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirement relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise”.
Financial Performance of Downstairs Kitchen
[8] Mr Rankin provided a witness statement with profit and loss statements for the Bistro (kitchen) from September 2010 to April 2011 attached. 2
[9] Mr Rankin gave evidence that the Bundaberg and District RSL and Citizens Memorial Club Inc made significant losses in the Bistro (downstairs kitchen) as demonstrated by the financial statements provided. Mr Rankin gave evidence that the losses made for the downstairs kitchen were $191,924.38 for the calendar year ending 31 December 2010 3 and a further $21,441.54 up to the end of April 2011.4 Mr Rankin gave evidence that the downstairs kitchen is where the bulk of club meals are prepared.
[10] Mr Rankin was shown during cross examination the Bundaberg and District RSL Trading Statements Year Ending 31 December 2010 5 and asked to explain the profit identified under the heading ‘Bistro and Functions’. He said functions made a profit in the order of $211,000 for the year6 and the statements attached to his own witness statement were for a different area then those referred to in the audited trading statement.7
[11] There was some cross examination of Mr Rankin comparing the end of year trading statements 8 to the Bistro (downstairs kitchen) job profit and loss statement9 and whether the loss being made in the Bistro as stated by the Respondent reflected the true position based on how profits and costs were accounted for across the Bistro and functions area upstairs.10
[12] Mr Van Wissen who was the Catering Manager prior to the dismissal of the Applicant 11 was ordered to attend to give evidence and did so by telephone. He said he was aware the downstairs kitchen had been making a loss “..every now and then..” but that it is hard to differentiate between the kitchen downstairs and upstairs.12 Mr Van Wissen agreed he was provided with a printout of the wages to sales ratio in the kitchen downstairs every week as Catering Manager, but not after he was no longer in charge. He said he was shown some results by the new Chef but wasn’t really paying attention because he had been demoted to second in charge.13
[13] Mr Geoffrey Paul McIntosh provided a statement 14 and gave oral evidence. Mr McIntosh was employed as the Operations Manager for approximately 5 years from 2 November 2005 until he resigned in January 2011 and described himself as second in charge of management of the RSL at the time.15 Mr McIntosh said he was not aware of a loss of the magnitude set out in the December 2010 job profit and loss statement as it was not discussed, and the profits discussed on a monthly basis were the combined profits.16 He said each week there were discussions about the wages to sales figures which varied.17
[14] Mr McIntosh was asked his opinion in explaining that functions made such a huge profit, and the kitchen such a loss. Mr McIntosh believed it may have been the food costs which were allocated to the kitchen as far as he was aware. 18 In cross examination it was put to Mr McIntosh that he would have received the job profit and loss statement for the kitchen only showing an accumulated loss for that financial year of $176,267. He said he was not aware the costing in the functions and kitchen area were separated out, and he would only have had access to the information as Operations Manager had he asked for it which he never did.19
[15] The Applicant’s statement 20 states that the kitchen lost approximately $28,000.00 within six weeks following the introduction of the “All You Can Eat Buffet” by Col Rankin in February 2011. Otherwise the Applicant claims the financial statements show that the kitchen was making a profit.
[16] The Respondent rejects the dates as put by the Applicant regarding the introduction of the “All You Can eat Buffet”, and in any event the period the Applicant claimed it was introduced is well after the initial losses claimed to have been incurred by the Respondent, and set out in the Bistro (kitchen) job profit and loss statement. While there is some conflict in the evidence as to how costs in the separate bistro and functions areas were accounted for I am satisfied on the evidence that the bistro or downstairs kitchen did make losses in 2010 and 2011.
Audit and Restructure of Kitchen
[17] Mr Rankin gave evidence that Clubs Queensland was asked to recommend an expert in the area of commercial kitchen performance and operation to commission an audit and review of the Club’s kitchen. Fine Line Consulting was engaged on the recommendation of Clubs Queensland by decision of the House Sub-Committee on 18 April 2011 to perform an audit and advise on how to restructure the kitchen. 21 22 23
[18] The report recommended a staff restructure and other changes relating to menus, checklists to avoid wastage, purchasing, product specification with all suppliers and cleaning methodology. A nine page document titled ‘The Fine Line Consulting Bundaberg RSL Report and Recommendations’ dated May 2011 was admitted into evidence. 24
[19] The Respondent said prior to the review being undertaken, the structure of the kitchen was:
a) Catering Manager (Full Time) position held by Mr Van Wissen
b) Sous Chef (Full Time) position held by Mr Meagher
c) 2 Chefs (Full Time)
d) 1 Chef (Part Time) (Chinese)
e) 1 Chef (Casual-functions)
f) 3 Apprentices (Full Time)
[20] The structure recommended in the report 25 and implemented in the restructure of the kitchen was:
a) Executive Chef (Full Time)
b) Chef de Partie (Full Time)
c) 2 Chefs (Full Time)
d) 1 Chef (Part Time) (Chinese)
e) 1 Chef (Casual-functions)
f) 3 Apprentices (Full Time)
[21] Mr Rankin said after receiving the review from Mr Drinkwater of Fine Line Consulting in early May 2011 the House Sub-Committee decided to introduce a new menu with Mr Drinkwater carrying out staff training and supervision.
[22] Mr Rankin was taken in cross examination to the third paragraph in the report in the Overview where it says “..I would recommend Gabe be made a Chef de Partie...” Mr Rankin maintained there were discussions with Mr Drinkwater in addition to the report being provided and that when Mr Drinkwater was asked directly by the House Sub-Committee who was the best performer in the kitchen out of Mr Van Wissen and Mr Meagher, Mr Drinkerwater’s response was to keep Mr Van Wissen. 26 Mr Rankin said a decision was taken to adopt the recommendation of Mr Drinkwater that Mr Van Wissen, as the better of the two existing staff compared to the Applicant, should be given the new position of ‘Chef de Partie’.27
[23] Mr Rankin said on 16 May 2011 the House Sub Committee recommended Mr Drinkwater be engaged to source an Executive Chef on a salary/KPI bonuses, and further that a ‘Chef de Partie’ was the best option under the restructure. The positions of ‘Head Chef’ and ‘Sous Chef’ were to be made redundant when the position of ‘Executive Chef’ was filled. Mr Rankin said Mr Drinkwater recommended that only the position of ‘Executive Chef’ be sourced and Mr Van Wissen be offered the existing position of ‘Chef de Partie’ ahead of the Applicant. Mr Rankin said the recommendations of Mr Drinkwater were accepted by the House Sub-Committee, and a review of staffing positions in the kitchen revealed there were no positions at that time available which the Club could offer the Applicant. 28
[24] Mr Rankin said the position of Executive Chef was advertised on the public domain seek.com by Mr Drinkwater and Mr Rankin said he was advised by Mr Drinkwater that both Mr Van Wissen and the Applicant were aware of this at that time through their enquiries with him. 29 Mr Drinkwater was not called to give evidence by the Respondent. Mr Rankin admitted he did not tell the Applicant or Mr Van Wissen about the job being advertised himself.30 The evidence of Mr Rankin covering what Mr Drinkwater said to the Applicant and Mr Van Wissen is hearsay.
[25] Mr Rankin gave evidence that the staff structure in the downstairs kitchen prior to the restructure was a Catering Manager in charge of that section, a Sous Chef as second in charge and permanent part-time, casual, and apprentice staff. 31 Mr Rankin agreed that part of the duties of the Sous Chef was to be in charge of the upstairs Chef.32 He agreed the new structure based on the recommendation was ‘Executive Chef’, “Chef de Partie’ and the ‘Function Chef’ now reporting to the ‘Executive Chef’ and not the ‘Sous Chef.33
[26] Mr Rankin argued the duties of the Functions Chef were changed and the Function Chef also became more responsible for his area and some of the duties of the Sous Chef were moved to the Functions Chef. Further some of the duties of the Sous Chef were moved to the Chef de Partie. Mr Rankin said the hierarchy was completely changed to try and improve the performance in the kitchen because the Club could not sustain the losses. 34
[27] Mr Rankin gave evidence that the upstairs kitchen is completely independent in that it has its own Combi ovens, cool room, plate up area, stoves and gas ovens and all costs of the goods needed to produce meals upstairs are charged against functions. Similarly all goods and food that is purchased for the downstairs kitchen is charged to the downstairs kitchen. 35
[28] Mr Rankin gave evidence that the objective of the management committee was for the downstairs kitchen to at least break even as a standalone entity. 36 Mr Rankin said the Applicant’s role as Sous Chef had responsibilities in the areas of cost control, pricing, portion control and menu engineering.37 Mr Van Wissen said the Applicant did not have responsibility for finances.38 Mr Rankin also said part of the Applicants weekly role was to do wages to sales.39 He said when the operations manager was away RDO’s, ordering, portion control and pricing of menu were the Applicant’s responsibility.40
[29] Mr Van Wissen gave evidence that after the Applicant’s departure he became the Chef de Partie. 41 He agreed with the proposition that he replaced the Applicant as Sous Chef, albeit he was called the Chef de Partie.42 His current position is Chef de Cuisine which he understood to mean Head Chef.43 He said there is currently another position titled Demi Chef which means second in charge.44
[30] Mr Van Wissen gave evidence that the Applicant performed his former role as Sous Chef adequately. 45 Mr Van Wissen said he had not seen the report of Fine Line Consulting however he said he had discussed two or three points about the report with Mr Drinkwater.46 Mr Van Wissen was not aware of any discussion with the Applicant regarding the proposed changes and said they were a surprise to him.47
[31] Mr Van Wissen gave evidence that when he became Chef de Partie he continued to do the ordering and rostering following the appointment of the new Executive Chef Colin Bourke as Mr Bourke had asked him to do this until he had sorted out “..some other things first...” and he would later take over the rostering first and then the ordering. 48 Mr Van Wissen said that after two weeks or so the new Executive Chef Mr Bourke resigned. Mr Van Wissen thought it was “probably” the intention the new Executive Chef would be responsible for rostering but as he knew the next Executive Chef was leaving there was no discussion about it.49
[32] Mr Van Wissen said the next Executive Chef took over the role of rostering after a few weeks but when he left Mr Van Wissen took this role back again. 50 He said that now as the Chef de Cuisine he talks with the Food and Beverage Manager, the Gaming Manager and the General Manager to work out what needs to be done but he is still in charge of rostering and ordering.51 He agreed the Executive Chef was in charge of the Function Chef in the upstairs kitchen but that person would still talk to Mr Van Wissen about ordering.52
[33] Mr Van Wissen said the report prepared by Mr Drinkwater was never shown to him but some points out of it were discussed with the Applicant and himself. 53
[34] Mr Van Wissen said he now reports to the Food and Beverage Manager. 54 Mr Van Wissen said he still prepares the rosters but now discusses then with the Food and Beverage Manager.55 He said she is not doing the rosters or ordering but is the spokesperson.56
[35] The Applicant maintained the role he previously filled was given to Mr Van Wissen and called a different name. He felt someone else was doing his job. 57 He said he had no idea a new position was being created.58
[36] The Applicant said Mr Drinkwater when initially at the Club for two and half days spoke to him on a number of occasions including about food items. When Mr Drinkwater returned to implement the new food menu the Applicant spoke to him again raising some issues about the menu. 59 The Applicant said his discussions did not relate to organisation change.60
[37] The Applicant said he wasn’t aware a position of Executive Chef had been advertised until he overheard Mr Van Wissen confront Mr Drinkwater about it. 61 The Applicant said he thought the advertised position was for what he understood was Mr Van Wissen’s role, not his role as Sous Chef.62
[38] Mr Ashley Trent Schiffke gave evidence and provided a statement. 63 Mr Schiffke worked at the Bundaberg RSL from 29 October 2007 until he completed his apprenticeship on 30 March 2011.64 He performed a few shifts after those dates up to 2 May 2011. Mr Schiffke said he was not aware of any consultations with staff about kitchen restructuring65 although he conceded he would not have been at the Club when the decision was made about restructuring.66
[39] Mr Schiffke believed after the Applicant left the employment of the Respondent that in the shifts he performed he believed Mr Van Wissen, as Chef de Partie was performing the jobs previously performed by the Applicant as Sous Chef, 67 the only difference being Mr Van Wissen did the rosters.68
[40] Ms Stacey Embrey gave evidence and provided a statement. 69 Ms Embrey said she was employed as an apprentice from September 2010 until July 2011.70 Ms Embrey gave evidence that Mr Van Wissen’s new role as Chef De Partie was the same role that the Applicant had undertaken previously as second-in-charge.71
[41] Ms Embrey said Mr Drinkwater came in and did an audit, and in the next couple of weeks the Applicant was fired on the spot. 72 Ms Embrey said there was no consultation with staff as to the roles Mr Van Wissen would take on as Chef de Partie and Mr Colin Bourke would take as the new Executive Chef.73
[42] Mr Colin Bourke provided a statement 74 and gave oral evidence. He said he commenced employment with the Respondent on or around 8 June 2011, which is the date the Applicant was terminated. He said he was contacted by Scott Drinkwater on behalf of the Respondent regarding a position of Catering Manager/Head Chef. He said his expectation was for the position to involve more catering management duties however it did not take long for him realise that he was having to spend many hours working as a cook in the kitchen.75 He agreed with the proposition that he basically took over the role and responsibility of Mr Van Wissen.76
[43] Mr Bourke said in his experience the difference between a Chef de Partie and a Sous Chef is a Chef de Partie is in charge of a section of a kitchen, for example the fish, sauce or grill section. A Sous Chef was usually the person who took over and ran the kitchen on the Chef’s days off, a second in command. A Chef de Partie was not usually a second in command. Mr Bourke said the role Mr Van Wissen performed was Sous Chef duties, second in command. 77 78
[44] Mr Bourke agreed that when he was settling in he reserved some roles for himself and asked Mr Van Wissen to perform others which Mr Bourke would take back later which included rostering and ordering. 79
Events leading up to and including the Termination meeting of 8 June 2011
[45] The Applicant took leave as arranged in advance from 11 May 2011 until 1 June 2011 inclusive for his wedding and honeymoon. 80
[46] The Applicant points to the minutes of the RSL meeting showing that a decision to “confirm the engagement of Fineline Consulting to source a replacement Catering Manager” by the management was made on 16 May 2011, not on 8 June 2011 as the Respondent alleges.
[47] Mr Rankin gave evidence that the decision to make the ‘Sous Chef’ redundant (the Applicant’s role) was made on or around 8 June 2011 by the House Sub Committee and the Executive of the Club. According to Mr Rankin the new ‘Executive Chef” position had already been appointed on 26 May 2011 but the change to the hierarchy in the kitchen was not made until close to the time of when it was identified there was a redundancy. 81
[48] Mr Rankin agreed that the first time redundancy was discussed with the Applicant was 8 June 2011, the day of his dismissal 82 in a meeting which lasted ten minutes.83 When asked if it was possible the Applicant and Mr Van Wissen may have been aware there was a likelihood of redundancy when the audit of the kitchen was arranged he said no.84 Mr Rankin admitted he did not tell the Applicant or Mr Van Wissen himself about the job being advertised.85
[49] Mr Rankin said the Applicant was asked to attend the meeting somewhere around 9.00am downstairs in the bistro area with the President Mr Bradbury, House Chairman Mr Willis, the newly appointed Executive Chef and himself. Mr Rankin said the meeting lasted in total for approximately 40 minutes but the meeting with the Applicant lasted approximately 10 minutes. 86
[50] Mr Rankin gave evidence that in the presence of the Club President, the House Sub-Committee chairman and the Executive Chef he explained the kitchen restructure to the Applicant and the fact the Club had no positions to offer him at that time. Mr Rankin said the Applicant was told if that position changed in the future he would contact the Applicant with any offer. Mr Rankin said the redundancy was explained to him. Mr Rankin said the Applicant replied at the time “that’s the way it goes sometimes”. He said the Applicant stood and shook hands with him and he escorted the Applicant to the kitchen to collect his personal belongings. 87 88
[51] The Applicant’s version of what occurred on the morning of 8 June 2011 at 9.15am is set out in his statement. 89 The Applicant said in very clear terms the reason he believed his dismissal was unfair was because he wasn’t given any notice or any explanation why he was being fired.90 The Applicant gave evidence that he was confused and lost for words when handed a letter terminating his employment.91 He believed he was unfairly dismissed and his wife was very upset when he contacted her.92
[52] In cross examination the Applicant said he was summoned out of the kitchen by Mr Rankin to the dining room where he sat in front of Mr Rankin and two other committee members. There is a conflict in the evidence in that the Applicant did not believe the new Executive Chef was present; however he believed the new Executive Chef was in the kitchen at the time when the Applicant arrived for work at around 9.15am. 93
[53] It is denied by the Applicant that the decision to make him redundant was conveyed to the Applicant as soon as it was made. The minutes of the RSL House Committee dated 16 May 2011 meeting and annexed to the Applicants submissions include the following point; “Recommended we confirm the engagement of Fineline Consulting to source a replacement Catering Manager”. The Applicant was dismissed on 8 June 2011, one week after returning to work after his honeymoon. It is common ground the Applicant was not consulted during the week of his return to work.
Evidence regarding conduct of Mr Rankin
[54] Mr Schiffke said one of the main reasons he left the employment of the Respondent was because he found the mistreatment of other staff by the Mr Rankin unacceptable. 94 Mr McIntosh said it was his opinion that Mr Rankin’s interpretation of some industrial relations legislation contributed toward issues between management and staff at the RSL.95 Mr Bourke said he left the employment of the Respondent after about a week and a half because he did not trust or agree with the management practices of Mr Col Rankin.9697 In my view the evidence of these three witnesses regarding Mr Rankin’s management style tends to add weight to the plausibility of the Applicant’s evidence that he was not consulted earlier about the redundancy and about the manner of his termination on the morning of 8 June 2011.
Findings on Genuine Redundancy
[55] The Applicant is challenging three aspects of the dismissal on the grounds of genuine redundancy. Firstly in relation to section 389(1)(a) that the new roles of Executive Chef and Chief de Partie in the new restructure were in truth not different to the former and corresponding roles of Catering Manager and Sous Chef. The argument was particularly focussed on similarity between the former Sous Chef role and the new Chef de Partie role.
[56] In other words the restructure was a sham and a mere re-badging exercise and not a true restructure. In my view the Applicant’s interpretation of section 389(1)(a) is too narrow. I am satisfied that the actions of the employer were a genuine attempt to restructure the business to improve efficiency based on concern about the financial performance of the downstairs kitchen, and further that the tasks done by the Applicant as a Sous Chef became part of the new role known as Chef de Partie, and further the new Executive Chef role absorbed some of the former Catering Manager role but that role was part of an altered hierarchical structure. It is clear enough from the evidence that the new role of Chef de Partie retained certain parts of the role that was previously the Catering Manager including ordering and rostering. The Executive Chef had responsibility for the Functions Chef which was formerly a role of the Catering Manager.
[57] Despite the views expressed by witnesses about the what the terms “Sous Chef” or “Chef de Partie” actually mean, I am satisfied genuine change occurred when comparing the old roles to the new roles. It is well established that when the tasks done by a particular employee are distributed between several other employees the person’s job no longer exists. On the basis of the operational decision of the Respondent to restructure the kitchen I am satisfied the Applicant was left with no duties to discharge as they had been distributed to other roles.
[58] It was said for the Applicant that he was not provided with any reason as to why he could not occupy the position of Head Chef or another chef’s position and an explanation as to why an external person was brought in to occupy the Head Chef’s position and the Head Chef demoted was not provided. Further it was said for the Applicant he had the requisite qualifications, skills and experience to undertake roles of Head Chef, Sous Chef, Chef de Partie and Chef at an organisation such as the RSL.
[59] I have examined the Overview section of the consultant’s report and it is critical of both Mr van Wissen and the Applicant. It says in reference to the Applicant “..The sous is by title only as he too has poor management skills...” immediately before recommending he be appointed to a Chef de Partie role. Keeping in mind that the report was presented in May 2011, it is clear from the Overview section that it does not take a firm position on the role and future of Mr Van Wissen, floating the option of replacing his role entirely with an Executive Chef or putting an Executive Chef above him.
[60] On the basis of this evidence and the evidence in the version given by Mr Rankin that discussions occurred involving Mr Drinkwater and the Committee where he recommended Mr Van Wissen be retained over the Applicant in the alleged restructure, it is quite plausible, and likely in my view, that this is in fact what occurred and how it came to be that Mr Van Wissen was offered the Chef de Partie role and the Applicant was not. The timing of when this decision was taken is important however and I will return to that point later.
[61] Secondly, and related to the first claim is the claim pertaining to section 389(2), that the Applicant could have been redeployed into either the Executive Chef, Chief de Partie or another Chef role and there was no necessity for the Respondent to go outside the organisation to recruit a new Executive Chef. The Applicant complained that the Respondent did not redeploy the Applicant within its organisation even though the Applicant was qualified to be redeployed. A decision had been taken to recruit outside the organisation for a new Executive Chef on the basis of advice from an external consultant and that advice was that both the existing Catering Manager and Sous Chef were unsuitable for the new role.
[62] The difficulty I have with this process is that the Respondent provided no opportunity to the Applicant to present an argument about his capacity or performance to apply for the positions that needed to be filled, either the Executive Chef or the Chef de Partie role. This is despite the evidence in this case (other than a comment in the consultant’s report) that is generally very positive about the Applicant’s conduct, capabilities and performance.
[63] The employer says it considered redeployment of the Applicant however there were no vacancies to which he could have been redeployed. The test with regard to section 389(2) is to be applied at the time of dismissal. I am satisfied on the basis of the evidence regarding the number of positions before the restructure, and available positions after the restructure, in the context of the decision of the House Committee to engage a new Executive Chef externally and redeploy Mr Van Wissen to the new role of Chef de Partie, a vacancy did not exist for the Applicant to be redeployed into as at 8 June 2011.
[64] Finally, the third issue was in relation to section 389(1)(b) and the Applicant not being consulted in accordance with the requirements of the Registered and Licensed Clubs Award 2010. The Respondent sought to argue the change was not “major” as it only affected 1.6% of the Respondent’s staff. Despite this the Respondent consulted the Applicant about the redundancy anyway in accordance with provisions of the modern award. The Respondent relies upon a decision of Senior Deputy President Duncan 98 where it was determined that a decision by an employer to withdraw a service which only affected 1.39% of staff was not a major change of the type contemplated by the requirement to consult about major changes.
[65] I am satisfied that the extent of the changes in this case were major. The implementation of the external consultant’s recommendations involved not just the Applicant, but also other staff including the redeployment of Mr Van Wissen and the engagement of a new Executive Chef and the extent of the changes clearly fell within the meaning of major change contemplated by clause 8 of the Registered and Licensed Clubs Award 2010.
[66] In terms of section 389(1)(b) it is common ground that the Registered and Licensed Clubs Award 2010 applied to the Applicant. It is clear that the Award does apply. Clause 8 of the Award provides as follows:
“8 CONSULTATION REGARDING MAJOR WORKPLACE CHANGE
8.1 Employer to notify
(a) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.
(b) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where the award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.
8.2 Employer to discuss change
(a) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the change.
(b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1.
(c) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.
[67] Clause 8.2 of the Award required the Respondent to discuss with the Applicant the change; the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees; give prompt consideration to any matters raised by the Applicant; enter into discussions as early as practicable after a definite decision has been made by the employer to make changes referred to in clause 8.1; and provide relevant information in writing.
[68] In this case the evidence is that the Applicant was called to a meeting on the morning of his termination, informed of the decision, advised in a brief discussion that he was to be made redundant immediately and dismissed. The Applicant was not offered re-deployment in the organisation and claims he was not offered any reasons for not being redeployed. 99
[69] Mr Rankin’s own evidence was that the House Sub Committee on 16 May 2011 recommended Mr Drinkwater be engaged to source an Executive Chef, with a new Chef de Partie role preferred under the restructure, and the positions of Head Chef and Sous Chef to be made redundant when (my emphasis) the position of Executive Chef was filled. 100 This evidence is important when looked at in conjunction with the minutes of meeting of 16 May which merely state “Recommended we confirm the engagement of Fineline Consulting to source a replacement Catering Manager”. These two pieces of evidence make reasonably clear that the House Committee had made a decision the jobs of Mr Van Wissen and the Applicant were to be made redundant when the new Executive Chef was engaged. Despite this no steps were taken of a kind contemplated by Clause 8.2 of the Award. The whole purpose of Clause 8.2 of the Award is to give employees and their representatives if any, an opportunity to have input into the process. Clause 8.2(b) states;
“(b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1.”
[70] There were a range of steps the Respondent could have taken. As a minimum the Respondent could have advised the Applicant a position was being advertised which would impact on his existing role, which it was clearly aware of from the 16 May 2011. It could have discussed the recommendations in the Report and the decision of the Committee on 16 May 2011 with the Applicant. It decided not to. There was no direct evidence called by the Respondent to contradict the evidence of witnesses for the Applicant that they were not consulted about the proposed restructure and on that basis I accept the evidence for the Applicant’s case on that point.
[71] It appears the Respondent is attempting to argue that as a final decision was only made at a meeting on the morning of 8 June 2011 to terminate the Applicant (and therefore it appears not Mr Van Wissen) there was no requirement for the Respondent to consult the Applicant before that decision. I do not accept that this course adopted by the Respondent absolves it of the obligation to consult prior to the morning of 8 June 2011. The Respondent had made a decision that the Applicant’s position of Sous Chef would no longer exist upon the completion of the recruitment process for an Executive Chef which it authorised to commence from 16 May 2011. Just because the Applicant had not made a final decision about who would be terminated and who would be redeployed after its decision of 16 May 2011, did not mean it could remain silent while the process unfolded. It was obliged to commence consultation after its decision on 16 May 2011 and it failed to do so.
[72] I also do not believe that whatever discussion did occur in the brief meeting involving the Applicant on the morning of 8 June 2011 constituted meaningful discussion. The process was already at an end and a decision was made. There was no evidence of genuine discussion to mitigate the adverse effects of the decision or provide relevant material in writing such as the nature of the restructure. There was some evidence that the Applicant had discussions with Mr Drinkwater before he left to go on his honeymoon but that discussion was in relation to the food menu, not the introduction of changes and their adverse impact on him. I am satisfied that what occurred at the meeting on the morning of 8 June 2011 does not satisfy the requirements of section 389(1)(b). On that basis I find the dismissal of the Applicant was not a genuine redundancy as defined in section 389.
Findings on whether dismissal Harsh, Unjust, or Unreasonable
[73] I am now required to determine whether the dismissal was unfair. I am satisfied on the basis of the restructure the job being performed by the Applicant was being redistributed to other staff. I am not satisfied however there was a valid reason for termination based on that restructure. The Applicant had no forewarning of what was coming and no opportunity to put a case to compete for the positions that would be available. He had been given no warnings or was otherwise informed that his work performance was unsatisfactory. On the contrary the Applicant received a promotion and a pay increase for his good work whilst at the RSL.
[74] The Applicant’s evidence was he was on good terms with all kitchen staff and carried out his duties skilfully and efficiently. This is generally consistent with the evidence of other witnesses who spoke positively of the Applicant’s skills and competence. It appears on the basis of a comment in the report of the consultant the Respondent made a decision not to consider the Applicant for either of the new Executive Chef or the Chef de Partie roles. The consultant’s view about the Applicant was contrary to the other evidence and based on a short visit to the site. On the basis of this evidence I am not satisfied the Respondent has a valid reason for dismissal related to the Applicant’s capacity and conduct, which I am required to consider as set out in s.387(a).
[75] The decision of the Management Committee regarding the restructure was not conveyed when it should have been however the Applicant was advised almost immediately upon the decision of the Committee to terminate him being made.
[76] The Respondent claims the decision to make the job the Applicant was performing redundant in no way related to his capacity or conduct. However it is clear the Respondent acted on the advice of the external consultant not to offer the Applicant ongoing employment. By not engaging with the Applicant earlier, the Respondent has denied the Applicant the opportunity to explore redeployment, or even a lengthier period to attempt to explore the possibility of other employment.
[77] From the evidence it would appear there was no opportunity for the Applicant to have made arrangements to have a support person present as he had no warning of the meeting.
[78] The Respondent has I understand from the evidence in the order of 60 staff. Its size is not a significant factor that assists the Respondent in this case. The Club does not have its own human resources specialist but does have a management restructure with access to Clubs Queensland and its specialist advice. It could reasonably have been expected that a Club of this scale would comply with the consultation provisions in the Award.
[79] Finally I make the observation that the manner in which the termination was effected was also regrettable given the Applicant had just returned from a period of leave on his honeymoon. On the basis of all of the evidence I conclude that the dismissal was harsh, unjust or unreasonable.
Remedy
[80] It was put for the Applicant that the remedy he sought is compensation 101 and on that basis I have not given consideration to reinstatement. The Applicant took leave from his employment as previously arranged for his wedding and honeymoon from 11 May 2011 until 1 June 2011. He was paid one weeks’ pay in lieu at the time of his dismissal.
[81] In determining an amount for the purposes of an order for the payment of compensation there is no evidence an order will effect the viability of the employer’s enterprise. The Applicant worked for the Respondent from 19 June 2010 until 8 June 2011.
[82] There is a level of uncertainty regarding the question of the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed as it is unknown whether a different outcome may have occurred had the Applicant been properly consulted about the changes occurring. While there is a real possibility the termination could have been avoided, it is also possible it may not have been. On the basis of the evidence I believe the Applicant had a strong claim for one of the two new positions. If anything the consultant’s report on which the Respondent relied was more critical of Mr Van Wissen who ultimately was re-deployed to the new Chef de Partie role than it was of the Applicant. I have decided on a period of 20 weeks due to the uncertainty associated with this case.
[83] The Applicant was successful in mitigating his loss as a result of the dismissal 102 by gaining other employment almost immediately after his termination by the Respondent.103 The Applicant says he now earns on average $64.00 per week less in gross income than what he earned whilst employed by the RSL, and he earned this level of remuneration from employment during the period between the dismissal and the hearing of this matter.
[84] Despite the fact that it was quite evident to me that the Applicant was distressed by the circumstances of his dismissal, section 392(4) states that the amount ordered by FWA to be paid to a person must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal. Therefore I have no capacity to compensate for matters of this nature raised on the Applicant’s behalf.
[85] I have had regard to the payroll information supplied by the Applicant as attachments to his statement and compare his income of $1064.00 for a 38 hour week at the Respondent to his income of $1,000.00 for a 38 hour week at the Western Suburbs Leagues Club.
[86] I intend to issue an order that the Respondent pay to the Applicant the sum of $1280 taxed according to law, being made up of the sum of $64 multiplied by 20 which is the difference in earnings between the former and current employment over a period of 20 weeks. An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr Van Dyk for the Applicant.
Mr Porter for the Respondent.
Hearing details:
Bundaberg
22 August 2011
24 October 2011
1 Transcript PN 530
2 Exhibit 1 Statement of Mr Rankin dated 12 October 2011
3 Transcript PN 158
4 Transcript PN 164
5 Bundaberg & District RSL & Citizens Trading Statement 31 December 2010
6 Transcript PN 172
7 Transcript PN 173
8 Exhibit 2 Bundaberg & District RSL & Citizens Trading Statement 31 December 2010
9 Exhibit 1 Statement of Mr Rankin dated 12 October 2011 Attachment A
10 Transcript PN 238 -292
11 Transcript PN 416
12 Transcript PN 473
13 Transcript PN 475
14 Exhibit 6 Statement of Mr McIntosh dated 19 August 2011
15 Exhibit 5 Statement of Ms Embrey dated 21 September 2011 paragraph 1
16 Transcript PN 658
17 Transcript PN 661
18 Transcript PN 662
19 Transcript PN 683 -685
20 Exhibit 3 Statement of Mr Meagher dated 22 September 2011 paragraph 18 and 18
21 Exhibit 1 Statement of Mr Rankin dated 12 October 2011 paragraph 5
22 Transcript PN 166
23 Transcript PN 179
24 Exhibit 3 Statement of Mr Meagher dated 22 September 2011 Attachment B Bundaberg RSL Report and Recommendations
25 Exhibit 3 Statement of Mr Meagher dated 22 September 2011 Attachment B Bundaberg RSL Report and Recommendations page 6
Transcript PN 235
26 Transcript PN 235
27 Transcript PN 187
28 Exhibit 1 Statement of Mr Rankin dated 12 October 2011 paragraph 5 and 6
29 Exhibit 1 Statement of Mr Rankin dated 12 October 2011 paragraph 7
30 Transcript PN 334-335
31 Transcript PN 177
32 Transcript PN 178
33 Transcript PN 185
34 Transcript PN 351
35 Transcript PN 387 - 389
36 Transcript PN 298
37 Transcript PN 300
38 Transcript PN 443
39 Transcript PN 301
40 Transcript PN 303
41 Transcript PN 417
42 Transcript PN 418
43 Transcript PN 419- 421
44 Transcript PN 425
45 Transcript PN 427
46 Transcript PN 439
47 Transcript PN 441
48 Transcript PN 451
49 Transcript PN 452 - 455
50 Transcript PN 458
51 Transcript PN 462
52 Transcript PN 471
53 Transcript PN 472
54 Transcript PN 478
55 Transcript PN 482
56 Transcript PN 482
57 Transcript PN 527
58 Transcript PN 533
59 Transcript PN 527 - 552
60 Transcript PN 569
61 Transcript PN 558
62 Transcript PN 566 - 567
63 Exhibit 4 Statement of Mr Schiffke dated 16 September 2011
64 Transcript PN 596
65 Transcript PN 590 - 591
66 Transcript PN 600
67 Transcript PN 592
68 Transcript PN 593
69 Exhibit 5 Statement of Ms Embrey dated 21 September 2011
70 Exhibit 5 Statement of Ms Embrey dated 21 September 2011 paragraph 1
71 Exhibit 5 Statement of Ms Embrey dated 21 September 2011 paragraph 7
72 Transcript PN 618
73 Transcript PN 635
74 Exhibit 7 Statement of Mr Bourke dated 13 September 2011
75 Exhibit 7 Statement of Mr Bourke dated 13 September 2011 paragraph 1
76 Transcript PN 714 - 717
77 Transcript PN 722
78 Transcript PN 734 - 736
79 Transcript PN 733 - 735
80 Exhibit 3 Statement of Mr Meagher dated 22 September 2011 paragraph 4
81 Transcript PN 186
82 Transcript PN 347
83 Transcript PN 350
84 Transcript PN 393
85 Transcript PN 334 - 335
86 Transcript PN 208
87 Exhibit 1 Statement of Mr Rankin dated 12 October 2011 paragraph 8
88 Transcript PN 210
89 Exhibit 3 Statement of Mr Meagher dated 22 September 2011 paragraph5
90 Transcript PN 516
91 Exhibit 3 Statement of Mr Meagher dated 22 September 2011 Attachment A
92 Transcript PN 524
93 Transcript PN 542 -546
94 Exhibit 4 Statement of Mr Schiffke dated 16 September 2011 paragraph 7
95 Exhibit 6 Statement of Mr McIntosh dated 19 August 2011 paragraph 6
96 Transcript PN 731
97 Exhibit 7 Statement of Mr Bourke dated 13 September 2011 paragraph 5
98 [C33838 of 2000] National Tertiary Education Industry Union and University of Adelaide PR T2282
99 Exhibit 3 Statement of Mr Meagher dated 22 September 2011 paragraph 14
100 Exhibit 1 Statement of Mr Rankin dated 12 October 2011 paragraph 5
101 Transcript PN 112
102 Transcript PN 532
103 Transcript PN 101 - 107
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