Gambhir Singh v Win Win Recruiters Pty Ltd

[2020] FWC 6190

[2020] FWC 6190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gambhir Singh
v
Win Win Recruiters Pty Ltd
(U2020/3964)

DEPUTY PRESIDENT BOYCE SYDNEY, 7 DECEMBER 2020

Application for an unfair dismissal remedy — whether dismissal for reasons of genuine redundancy — applicant asserts his job still exists because his duties are still being performed by other employees in the business — applicant asserts that he was selected for redundancy due to complaints he made to the respondent about alleged underpayments of wages — evidence discloses genuine operational requirements as the reason for the applicant’s dismissal — evidence discloses genuine consultation — no redeployment opportunities available at time of dismissal — applicant’s job in excess to business needs — application dismissed.

Introduction

[1] Mr Gambhir Singh (Applicant) has filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). By way of that Application, the Applicant claims that he was dismissed from his employment with Win Win Recruiters Pty Ltd (Respondent) on 23 March 2020, and that his dismissal was “unfair” within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).

[2] In the Form F3 Employer Response filed with the Commission, the Respondent asserts that the Applicant’s dismissal was a case of “genuine redundancy” within the meaning of s.389 of the Act.

[3] Following the receipt of submissions and evidence in accordance with directions made, I held a hearing in Sydney to resolve the Application. Mr G Foster of Counsel, instructed by Mr A Sirohi (Solicitor, Harish Prasad & Associates), appeared with permission for the Applicant. Mr Mukul Dey (Solicitor, Associated Legal) appeared with permission for the Respondent.

[4] Having had regard to the evidence and submissions before me, I have determined that the Applicant’s dismissal was a case of “genuine redundancy” within the meaning of the Act. Accordingly, the Application is to be dismissed. My reasons for making this determination follow.

Representation by lawyer or paid agent

[5] Both parties sought to be represented by a lawyer in this matter. Neither party opposed the other being represented. Pursuant to the discretion afforded to me under s.596 of the Act, I granted such permission to both parties. I did so having regard to the fact that the proceedings concerned a question of genuine redundancy, being a matter that has previously been considered by this Commission to be “complex”. 1 Further, given the parties sought to cross-examine one another, I took the view that the Commission would be in a position to conduct the proceedings more efficiently with the assistance of legal representatives.

Facts not in dispute

[6] Up until November 2019, the Respondent operated three food outlets, namely:

(a) Taj Indian Sweets in Harris Park, New South Wales;

(b) Taj Bhawan in Harris Park, New South Wales; and

(c) Taj Indian Masala in Parramatta, New South Wales.

[7] From 27 August 2018, the Applicant was employed by the Respondent as an “Executive Chef”. The Applicant’s employment was subject to a subclass 457 visa arrangement. The Applicant’s annual salary was $96,000.00. The Applicant was responsible for operations at Taj Bhawan, a 125 seat “dine-in” restaurant.

[8] On 2 December 2019, the Respondent closed the Taj Bhawan, which had seen a significant drop in sales in the months prior. The Applicant was relevantly made aware that the Taj Bhawan was to be closed. After the closure, the Applicant agreed to be assigned to continue work at the Taj Indian Sweets outlet in Harris Park (on the same annual salary).

[9] The Respondent provided a letter to the Applicant dated 9 March 2020 (Termination Letter). Relevantly, the Termination Letter:

(a) advised the Applicant that his employment with the Respondent will be ending on 23 March 2020;

(b) stated that the Applicant was “aware” that the Respondent’s situation had “changed”, including that the Taj Bhawan closed in December 2019; and

(c) referred to a proposed future (new restaurant) project in Canberra, which had been delayed indefinitely due to the COVID19 pandemic.

Relevant law

[10] Section 385 of the Act qualifies a claim for unfair dismissal:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[11] Before the Commission can consider issues of harshness, etc, sub-section 396(d) of the Act requires that the Commission decide whether the dismissal was a case of genuine redundancy:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[12] Section 389 provides the statutory definition as to what qualifies as a genuine redundancy:

“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”.

[13] In view of s.389 of the Act, and for the Commission to be satisfied that a dismissal was a case of genuine redundancy, there are three questions that need to be answered:

(a) Was the Applicant’s job no longer required to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise?

(b) Did the Respondent comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy?

(c) Would it have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise, or an associated entity of the Respondent?

Whether the Applicant’s job was no longer required to be performed by anyone because of changes in the Respondent’s operational requirements

[14] Subparagraph 389(1)(a) of the Act provides that a person’s dismissal was a case of genuine redundancy if 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.

[15] These words have long been used and applied in industrial tribunals and courts as a practical definition of redundancy. 2 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 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:

•  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”.

[16] Further, it has been held that a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee”. It has also been held that:

“what is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant”. 3

[17] Put another way, the test is not whether the person’s duties survive. The test is whether the job previously performed by an employee still exists. 4

[18] The Applicant submits that s.389(a) cannot be satisfied because the Applicant’s duties were still required to be performed by other employees after his dismissal. Further, the Applicant submits that his dismissal was not due “changes in the operational requirements” of the Respondent’s business, but rather because the Applicant had made complaints about underpayments to Mr Ramesh Sharma (Director, Respondent).

[19] The Respondent submits that the Applicant’s labour became excess because the Respondent decided to close the Taj Bhawan, and the Applicant’s role (and duties) at the Taj Indian Sweets outlet was supernumerary to its needs.

[20] It is not uncommon for an Applicant contesting the genuineness of their redundancy to assert there was an ulterior motive for their dismissal, being a reason(s) other than “changes in operational requirements”. I am not without sympathy for why this argument is frequently put to the Commission. A person who has been made redundant may attempt to rationalise why their role has been selected by their employer for redundancy. Such a person may wonder as to whether their selection was because of spiteful or malicious reasons. However, if an employee is to displace an employer’s assertion that their dismissal was for reasons of operational requirements, the employee needs to bring evidence to support their positive case in this regard. Suspicion, speculation and/or conjecture are not proper evidentiary foundations to make findings that an employee’s selection for redundancy has fallen afoul of s.389(1)(a) of the Act.

[21] In this matter, the Applicant has only really highlighted the proximity of his dismissal with his complaints about underpayments. At its highest, the Applicant may have demonstrated why he was selected, but his evidence does not go so far as to reveal that the Respondent’ reason for dismissing him was because of those complaints (and not because of genuine operational requirements, which are clearly supported on the evidence). In the facts and circumstances of this case, I do not accept that the complaints made by the Applicant motivated the Respondent’s decision to dismiss him.

[22] By way of contrast, the Respondent’s case is that the Applicant was dismissed because there was an excess of labour for the three-come-two food outlets that it operated. The Applicant was the highest paid individual in the Respondent’s employ. His dismissal would naturally result in lower overheads for the Respondent’s business. The Applicant’s job at the Respondent has not been replaced. It is an ordinary course of action to look to save on staffing costs when part of a business closes, and a paradigm example of “changes in operational requirements”.

[23] I note that during the hearing Mr Foster engaged in a lengthy dialogue about the proper construction of s.389(1)(a) of the Act. 5 In summary, Mr Foster focused on the words “the person’s employer no longer required the person’s job to be performed by anyone” (his emphasis). Mr Foster put to the Commission that the Respondent could not satisfy s.389(1)(a) of the Act because another person or persons were still performing the same duties that the Applicant used to be perform. For completeness sake, I reject Mr Foster’s submissions in this regard. The argument is contrary to the long-settled authorities I have already cited. Mr Foster advances a pars pro toto, in which he conflates a person’s individual duties with their job. However, as far as s.389(1)(a) is said to operate, a part does not make the whole (i.e. individual duties are not the same as the whole of a “job”).

[24] In view of the foregoing, I find that the Applicant’s job was no longer required to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise. I therefore find that the Respondent has satisfied s.389(1)(a) of the Act.

Whether the Respondent satisfied the cl.8 of the Restaurant Industry Award 2010

[25] The parties agree that the Applicant was covered by the Restaurant Industry Award 2010 (Award) during the course of his employment with the Respondent. I am equally satisfied that this was so. That being the case, s.389(1)(b) of the Act raises a question as to whether the Respondent complied with any award obligation to consult about redundancy.

[26] In summary, cl.8 of the Award requires an employer to notify employees of major operational changes in writing, and discuss those changes with affected employees. In other words, the Award requires an employer to genuinely consult with employees about restructures involving redundancies.

[27] The Applicant submits that he was not advised that his employment would be terminated prior to 23 March 202, and that there was no consultation in regard to same prior to him being issued with the Termination Letter.

[28] The Respondent submits that it did consult with the Applicant in satisfaction of cl.8 of the Award. The Respondent relies upon Mr Sharma’s witness evidence in cross-examination, whereby Mr Sharma gave evidence that he had “various meetings” with the Applicant, and made him aware that his employment would need to be terminated if the Taj Bhavan was to close. 6 In summary, Mr Sharma says he kept the Applicant employed for as long as possible to allow the Applicant to find alternative employment and a new sponsor for his visa (however, flagging that their employment relationship would have to end somewhat soon due to the closure of the Taj Bhawan).7 Moreover, the Respondent submits that the Applicant was provided notice in writing, by way of the Termination Letter.

[29] Having regard to the evidence before me, I am satisfied the Respondent consulted with the Applicant regarding both the operational changes flowing from the closure of Taj Bhawan, and the consequences this closure would have for both the business and the Applicant.

[30] If anything, the Respondent’s approach is a prime example of proper consultation. In circumstances where the Respondent could have dismissed the Applicant after the closure Taj Bhawan (in December 2019), it paused the dismissal for months so as to keep the Applicant employed for as long as possible thereafter, including because of the effect that the dismissal would have on the Applicant’s visa status. I accept that the conversations in relation to the Applicant’s redundancy, between Mr Sharma and the Applicant, were ongoing from around 2 December 2019, and that the Applicant was aware that the Respondent would struggle to keep him employed in circumstances where he was a high cost to the Respondent’s ailing business, and in excess to its ordinary labour requirement at the Taj Indian Sweets outlet.

[31] Having regard to my findings on the evidence above, I am satisfied that the Respondent has complied with the consultation requirements under s.389(1)(b) of the Act.

Whether the Applicant could have been redeployed

[32] The Applicant submits that he ought to have been retained or redeployed rather than being terminated, since he was clearly a very useful, experienced and valued worker. The Applicant gestures to the work he performed at Taj Bhawan and Taj Indian Sweets in this regard.

[33] I do not need to have regard to the Respondent’s submissions to resolve the issue at hand. The Applicant has not identified a role that he could have been redeployed to. At most, the Applicant has said that there are other employees performing the same duties that he used to perform. But duties are not a job. Even if there remain other cooks or chefs working in the Respondent’s business, the Applicant’s job was one more than the Respondent required (and he was the most expensive wage earner of all of the cooks and chefs employed). There is no evidence that a stand-alone position was available that Applicant could have been redeployed into at the time of his dismissal, let alone offered redeployment into.

[34] Having regard to the evidence, I find that s.389(2) of the Act has no application in this matter.

Conclusion

[35] The Respondent has discharged its onus to prove that the Applicant’s dismissal was for reasons of genuine redundancy within the meaning of the Act. The Application is therefore dismissed. An order to that effect will follow the publication of this decision.

DEPUTY PRESIDENT

Appearances:

Mr G Foster of Counsel, instructed by Mr A Sirohi (Solicitor, Harish Prasad & Associates) appeared for the Applicant.

Mr Mukul Dey (Solicitor, Associated Legal) appeared for the Respondent.

Printed by authority of the Commonwealth Government Printer

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 1   See: CEPU v UGL Resources Pty Limited [2012] FWA 2966 at [23] (Richards SDP).

 2   Ulan Coal Mines Limited v Henry Jon Howarth & Ors[2010] FWAFB 3488 at [15] (Boulton J, Drake SDP, and McKenna C), citing R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Cooperative Limited (1977) 16 SASR 6; Termination, Change and Redundancy Cases (1984) 8 IR 34 and (1984) 9 IR 115; Short v F.W. Hercus Pty Limited (1993) 40 FCR 511.

 3   Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308 (Ryan J), cited with approval in Ulan Coal Mines Limited v Henry Jon Howarth & Ors[2010] FWAFB 3488 at [17] (Boulton J, Drake SDP, and McKenna C). See also: Dibb v Commissioner of Taxation (2004) 136 FCR 388; [2004] FCAFC 126 at [43]-[44] (Spender, Dowsett, and Allsop JJ).

 4   Kekeris v A. Hartrodt Australia Pty Ltd[2010] FWA 674 (Hamberger SDP) at [27].

 5   Transcript PN364 to PN395.

 6   Transcript at PN172.

 7   Transcript at PN170, PN172 to PN173, PN190.