Gail Gordon v Newtrain Incorporated
[2011] FWA 5698
•2 SEPTEMBER 2011
[2011] FWA 5698 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Gail Gordon
v
Newtrain Incorporated
(U2011/7642)
COMMISSIONER RAFFAELLI | SYDNEY, 2 SEPTEMBER 2011 |
Termination of employment - jurisdiction - redundancy.
[1] On 5 May 2011, Ms Gail Gordon (the Applicant) applied for an unfair dismissal remedy.
[2] Section 385 of the Fair Work Act 2009 (the Act) provides that an unfair dismissal occurs if the person has been dismissed and the dismissal was harsh, unjust unfair or unreasonable and the dismissal was not consistent with the Small Business Fair Dismissal Code and the dismissal was not a case of genuine redundancy.
[3] In this matter it is not disputed that the Applicant was dismissed by her former employer, Newtrain Incorporated (the Respondent) and that the issue of the Small Business Fair Dismissal Code did not apply.
[4] The issue before me concerned whether this was a case of genuine redundancy and if it was not, whether the dismissal was harsh, unjust or unreasonable.
[5] Those questions were the subject of proceedings before me in Tamworth on 17 April 2011. The Applicant represented herself and gave evidence. The Respondent was represented by Ms Forward of Jobs Australia.
[6] The evidence and submissions of the Applicant largely focussed on the fact that the work she used to perform in the financial department in Tamworth was transferred to the Respondent’s other location in Lismore. The role performed formerly by her in Tamworth was now largely carried out by another employee in Lismore. Given that, it could not be said that the Respondent no longer required her job to be performed by anyone. (Section 389(1)(a))
[7] The Applicant’s evidence contained a large amount of material which, while not strictly relevant to the issues at hand, does provide some background to her predicament. I have considered what she has said but have not found it necessary to repeat it.
[8] What is of more critical importance is her evidence that she was telephoned on 8 April 2011 by a consultant to the Respondent, Mr Evan Gill, who informed her that she was being terminated due to redundancy. He informed her that her functions would now be performed in Lismore. The Applicant said that she was too surprised and distressed to question the decision.
[9] She agreed that she worked over the following two weeks. In that time she obtained a reference.
[10] In response to the fact that she did not seek to have further discussions with the Respondent, she said that she felt it would have been futile. In any case, Mr Gill never attended her workplace over the period. She also said that she saw the Respondent’s chief executive officer, Ms Caroline Cuckson only fleetingly over the period. There was no real opportunity to engage with the Respondent over its decision.
[11] While she agreed that she may have told Mr Gill in the past that she would not wish to move to Lismore, she was never asked at or about the time of her termination. Further, she indicated that she would have been prepared to move to Lismore if she had been asked at the time of her termination. (PN 351)
[12] The evidence of Ms Cuckson, the Respondents Chief Executive Officer, referred to the decision to move financial functions over time from Tamworth to Lismore. At the time of the Applicant’s termination, there were no suitable vacancies in Lismore.
[13] The evidence of Mr Gill included that he had telephoned the Applicant on 8 April 2011 to inform her that her position was redundant.
[14] It was his evidence that at the time of the Applicant’s termination there were no redeployment opportunities available.
[15] Although some weeks after the Applicant’s termination, it was decided to bring payroll function back “in-house” this had not been considered at the time of the Applicant’s departure. In any case, the Applicant would not have been considered for any payroll positions.
[16] Mr Gill agreed that the Applicant had never been informed as to the possibility of the closure of the Tamworth finance department prior to 8 April 2011.
[17] In determining whether there has been a genuine redundancy, section 389 of the Act provides a meaning of that term. It 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.”
[18] In respect of section 389(1)(a), the Applicant’s view as to the meaning of the words used is too restrictive.
[19] The jurisprudence that has developed over many years by courts and industrial tribunals establishes that a job is redundant even if it is shared among other employees or if it is transferred to other locations where it may be performed by someone.
[20] That is consistent with the Explanatory Memorandum to the Fair Work Bill 2008 which provides examples as to when a dismissal will be a case of genuine redundancy:
- A machine is now available to do the job performed by the employee;
- The employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or
- 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.”
“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 the 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 possible examples of a change in the operational requirements of an enterprise:
[21] In my view, given the operational decision of the Respondent, the Applicant was left with no duties to discharge, resulting in the Applicant’s job (including it being undertaken at Tamworth) being no longer required to be performed by anyone at Tamworth.
[22] Although the Applicant indicated a suspicion that the Respondent was planning to close down the finance functions at Tamworth and move them to Lismore as early as 2010, I accept the evidence of Ms Cuckson that the decision was made at or about March 2011.
[23] I find that the requirement in section 389(1)(a) is satisfied.
[24] As to what is required by section 389(1)(b), it seems that the parties accepted that the Labour Market Assistance Industry Award 2010 [MA000099] (the Award) probably applied to the Applicant.
[25] I have examined the Award and noted the functions performed by the Applicant. I am satisfied that the Award applied to the employment of the Applicant.
[26] In that regard, 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 this 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 changes.
(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 interest.”
[27] It is clear that the Respondent’s decision to close down its financial operations in Tamworth and to concentrate such in Lismore amounted to major change in that it had the consequence of leading to the termination of employment of the Applicant. It also can be said to represent a major change “in the composition, operation or size of the employer’s workforce”, “the elimination or diminution of job opportunities, promotion opportunities or job tenure” and “the restructuring of jobs” (clause 8.1(b)).
[28] Given that, clause 8.2 imposed several obligations on the Respondent. It had to:
- discuss with the Applicant the change;
- discuss with the Applicant measures to avert or minimise the adverse effects of the changes on the Applicant;
- give prompt consideration to any matters raised by the Applicant;
- enter into such discussions as early as practicable after making its decision to transfer the functions from Tamworth to Lismore;
- provide relevant information in writing.
[29] All that the Respondent seems to have done is to make a phone call to the Applicant informing her of the changes and that this would result in her retrenchment.
[30] That does not amount to meaningful discussion. It was not the evidence of the Respondent that it discussed measures to mitigate the adverse effects of the decision on the Applicant. There is no evidence that the Respondent provided any relevant material in writing.
[31] The Respondent’s case partially rests on the argument that the Applicant worked on for two weeks and raised no concerns. All she sought was a reference.
[32] That is no answer. There is a positive obligation on the Respondent to carry out the directives of clause 8.2. As to the Applicant’s seeming acquiescence, the evidence was that Mr Gill was the Respondent’s representative in its dealings with the restructure and the Applicant. He never attended the Tamworth site. There was no real opportunity for the Applicant to engage with Mr Gill.
[33] I find that the Respondent has not complied with obligations under the Award to consult about the redundancy.
[34] As a result of that finding, the dismissal was not a case of genuine redundancy as defined in section 389.
[35] In determining whether the dismissal of the Applicant was unfair, that leaves for consideration whether the dismissal was harsh, unjust or unreasonable.
[36] Firstly, I find that the termination of the Applicant was for a valid reason given that the work carried out by her at Tamworth was no longer available.
[37] The Applicant was notified of that fact.
[38] As to whether the Applicant was given an opportunity to respond, I consider that the communication by telephone by Mr Gill and his failure to attend the workplace after that amounts to the Applicant not being given a real opportunity to respond.
[39] As to the provisions of section 387(d), (e) (f) and (g), I consider that they are matters not particularly relevant to the circumstances at hand.
[40] As to any other matters of relevance, given that the transfer of financial functions had been occurring over some time, the almost immediate actions terminating the Applicant’s employment seems unduly hasty.
[41] Taking all the matters into consideration I find that the Applicant’s dismissal was harsh, unjust or unreasonable.
[42] Division 4 of Part 3-2 of the Act provides for remedies for unfair dismissal. I am satisfied that reinstatement of the Applicant is not appropriate because there does not seem to be a position available for her.
[43] I have however decided that an order for compensation is appropriate.
[44] Section 392(2) of the Act sets out criteria for deciding the amount of compensation.
[45] As to section 392(2)(a) there was no evidence that an order of compensation would impact on the Respondent’s viability.
[46] The Applicant was employed with the Respondent for a period of about 18 months. This period of service neither detracts from awarding compensation nor does it invite additional consideration.
[47] As to the remuneration that the Applicant would have received but for the termination, several matters need to be considered. It may be that if some real discussion had occurred the Applicant would have expressed her willingness to move to Lismore. Given that soon after payroll functions were brought back in-house, some employment opportunities may have emerged for the Applicant. On the other hand, no alternative employment may have been found. There is also the evidence of the Applicant which points to some displeasure at the conduct of her managers. In that respect I note the Applicant’s comments about the CEO at the bullet point from page 9 and 10 in Exhibit G2. Even if she had continued to be employed, she may not have remained for much longer.
[48] I am satisfied from the evidence that the Applicant made efforts to mitigate her loss by applying for jobs, including in locations far from her home.
[49] The Applicant does not seem to have earned any remuneration since her dismissal. I was informed that she received about $800 in benefits from Centrelink. I have also taken into consideration the payments made by the Respondent to the Applicant at her termination.
[50] The matters referred to in section 392(2)(f) and (g) does not invite any material consideration.
[51] The consideration of an amount of compensation is invariably speculative, particularly the question as to remuneration that would have been earned but for the unfair dismissal.
[52] In that context I have decided to award an amount of eight weeks compensation.
COMMISSIONER
Appearances:
G. Gordon, Applicant
J. Forward, for the Respondent
Hearing details:
2011
Tamworth:
August 17.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR513791>
0
0
0