Geoff D'Alessandro v Gallery Homes Pty Ltd T/A Gallery Homes

[2017] FWC 5440

[2017] FWC 5440

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Geoff D’Alessandro
v
Gallery Homes Pty Ltd T/A Gallery Homes
(U2017/3095)

COMMISSIONER GREGORY MELBOURNE, 20 OCTOBER 2017

Application for relief from unfair dismissal – jurisdictional objection – genuine redundancy.

Introduction

[1] Mr Geoff D’Alessandro was first employed by Gallery Homes Pty Ltd T/A Gallery Homes (“Gallery Homes”) in January last year and worked as a Business Development Manager in the newly established Melbourne office. He was required in this role to secure land for house and land packages and to prepare packages for marketing. In February of this year he took on a different role involving land acquisition on a six week trial period. However, on 1 March he was informed that his job was no longer required to be performed, and his employment was terminated with immediate effect.

[2] Mr D’Alessandro subsequently made application under s.394 of the Fair Work Act 2009 (Cth) (“the Act”) claiming he has been unfairly dismissed. However, Gallery Homes opposes the application and submits his dismissal was a case of “genuine redundancy,” as defined by s. 389 of the Act, and therefore Mr D’Alessandro has not been unfairly dismissed. It also submits, in the alternative, that if the Commission finds his termination was not a “genuine redundancy” then it was not in any case “harsh, unjust or unreasonable”.

[3] Mr D’Alessandro appeared on his own behalf. Ms Corrina Dowling of FCB Workplace Law was granted leave to appear on behalf of Gallery Homes under s.596(2)(a) of the Act as the matter involved a degree of complexity and her involvement might enable it to be dealt with more efficiently.

The Issue to be Determined

[4] Section 385 of the Act provides:

“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.” 1

[5] Section 389 continues to state:

“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.” 2

[6] The Commission is accordingly required to determine, firstly, whether Mr D’Alessandro’s dismissal was a case of “genuine redundancy,” as defined by s.389 of the Act, in which case he cannot have been unfairly dismissed under s.385. However, if the Commission finds his dismissal was not a case of “genuine redundancy” then it must determine whether Mr D’Alessandro has been unfairly dismissed on the basis that his dismissal was “harsh, unjust or unreasonable.”

The Submissions and Evidence

Gallery Homes

[7] Gallery Homes designs and builds homes. It generally works in conjunction with land developers, who remain responsible for the sale of the land. Gallery Homes receives its revenue primarily through the design and build of the home, although it also receives referral fees from developers from time to time. These are provided as an incentive for the business to choose one developer over another. Gallery Homes is based in Queensland but opened an office in Melbourne in December 2015 in an endeavour to develop the business in the Victorian market.

[8] Mr D’Alessandro was employed in January last year in the newly established Melbourne office in the role of Business Development Manager. A Draughtsperson and an Estimator were also employed in the Melbourne office. Mr D’Alessandro’s duties included identifying land for sale by external developers and determining how Gallery Homes’ designs could be best sited on that land with the intention of developing house and land packages that would be attractive for prospective purchasers. He was also involved in preparing and developing third-party referral agent partnering of agreements.

[9] However, on 15 January 2017 Mr Adam Barclay, the General Manager of Gallery Homes, sent an email to all employees advising that the sales results across the business in the second half of 2016 were not sufficient for it to remain profitable in the next 12 months. It was accordingly necessary to either reduce overheads by reducing staff levels, or to increase the sales efforts in order to achieve better sales outcomes. It was then decided in the following month that further action was required, and in the period from February to April five positions were made redundant, including Mr D’Alessandro’s position in the Melbourne office.

[10] Gallery Homes continues to submit that it made this decision because it had decided it would no longer seek to obtain new home building projects in Victoria, therefore the role of Business Development Manager was no longer required. The two remaining Estimator and Draughtsperson positions in the Victorian office were retained in the short-term in order to complete the existing building projects that were still pending.

[11] The decision to dismiss Mr D’Alessandro, together with four other employees, was accordingly a consequence of the need to make operational changes to maintain the ongoing viability of the business. In addition, two other employees have since resigned and those positions have not been replaced. It also emphasises in its submissions that the decision was not in any way related to Mr D’Alessandro’s work performance.

[12] Gallery Homes also rejects the suggestion that Mr D’Alessandro’s employment was covered by the Real Estate Industry Award 2010. 3 It submits that the Award is industry-based and covers employers engaged in the real estate industry in respect of those employees covered by a classification contained in the Award. In its submission the description of the industry in Clause 3 of the Award does not extend to housing design and construction. While the business works in conjunction with land developers, it is not involved in providing services associated with the sale and acquisition of real property, such as those cited in the Award, which include real estate agency, broking services, buyers agents, and evaluation agencies. In addition, there is no classification in the Award that covers Mr D’Alessandro’s role of Business Development Manager, and he was not in any way involved in the listing or sale of real estate, or responsible for the supervision of a real estate sales team.

[13] Gallery Homes also refers to an email sent by Mr Barclay to all employees on 15 January of this year advising of the serious financial position confronting the business, and noting that if increased sales were not achieved some positions might need to be made redundant. The same email was then re-sent on 25 January, followed by a staff meeting involving all staff, including Mr D’Alessandro, which discussed the current situation and the possible need to restructure the business in response. A meeting was subsequently held with Mr D’Alessandro on 1 March to discuss the changes and how they would impact on him, however, he refused to participate in the discussion. There was also no realistic opportunity for any redeployment options to be considered, given the overall reduction in the total “headcount” 4 across the business.

[14] Gallery Homes continues to submit that it was not subject to the consultation obligations contained in s.389 of the Act, given that Mr D’Alessandro’s employment was not covered by a Modern Award or enterprise agreement. However, he was in any case put on notice in the emails forwarded on 15 and 25 January, and in the meeting on the same day, that his job could be in jeopardy due to the current sales performance of the business. He also had a further opportunity to discuss these circumstances in the meeting on 1 March 2017, but instead abruptly left the meeting shortly after it commenced.

[15] It submits, in conclusion, that the uncontested evidence indicates that the financial circumstances confronting the business meant that operational changes needed to be made in order to maintain the ongoing viability of the business. It also submits that Mr D’Alessandro’s termination did not result from issues associated with his work performance, and his belief or view that redundancy was given as the reason for his termination in order to avoid the fact that he was dismissed on performance grounds, is not correct.

[16] Mr Adam Barclay is the founder and General Manager of Gallery Homes. The business primarily builds custom-designed homes on land held by external land developers. The developers are then involved in selling the house and land as a package. In 2015 Gallery Homes decided to expand into Victoria, and in January 2016 Mr D’Alessandro was employed as a Business Development Manager in the new Melbourne office.

[17] Mr D’Alessandro’s employment was governed by an employment contract dated 22 January 2016. Mr Barclay indicated that his duties specifically included:

“(a) Siting houses on external land developers’ lots to provide packages to their marketing staff; this is achieved by obtaining details about the available land price, size and dimensions and then siting a house on that block. This then allows us to nominate a package price and then add it to the stock list which is then sent to Referral Partners.

(b) Preparing and developing third-party referral agent partnering agreements (executed by myself) to drive marketing and sales efforts under an initial sales target of 60 packages in Victoria per annum. These agreements set out the responsibilities and payment terms between Gallery Homes and the Referral Partner.” 5

[18] Mr D’Alessandro was also told at the time he was employed about the importance of the referral fees paid by land developers. He was also told that any such fees were to be nominated in the name of Mr Ivan McRobb. Mr Barclay said that Mr D’Alessandro told him that he understood the value and nature of these arrangements.

[19] Mr Barclay also indicated that all staff were regularly involved in discussions about the state of the business and how it was performing. His evidence also detailed the emails sent to all staff on 15 and 25 January. In addition, all staff, including Mr D’Alessandro, participated in a discussion about the state of the business on the afternoon of 25 January. Mr D’Alessandro participated in the discussion by telephone.

[20] His evidence also detailed the following sequence of events.

• In the week prior to 21 February 2017 two full-time sales employees in the Queensland office were made redundant.



• On 26 February, Mr Barclay sent an email to his two most senior staff indicating that it was necessary to discuss how to reduce the current wages bill. It was subsequently decided that the staff in the Victorian office needed to be reduced from three full-time employees to two. It was then decided that the roles of Draughtsperson and Estimator were required to complete the ongoing building projects, but that the Business Development Manager position would be made redundant. Other possible redeployment options were considered, but it was decided that there were no vacant positions in either the Queensland or Victorian offices.



• On 27 February it was decided that five positions, including the role of Business Development Manager in Victoria, would be made redundant. This subsequently occurred in the period from February to April.



• On 28 February, Mr McRobb from Chatham Homes was asked to arrange a meeting with Mr D’Alessandro.



• That meeting took place on 1 March. It involved Mr McRobb, Mr D’Alessandro and Mr Barclay, who participated by telephone. Mr D’Alessandro was told it had been decided his position was to be made redundant and he then left the meeting abruptly before anything further could be discussed. He was subsequently provided with a termination package, which included four weeks’ redundancy pay. The position of Business Development Manager in the Melbourne office has not since been replaced. 6

[21] Mr Barclay also said it was discovered on 10 April, after reviewing emails in Mr D’Alessandro’s email account, that he had personally claimed and received referral payments from various land developers. He was not entitled to receive these payments and would have been dismissed if this had been known about. Clause 24 of his employment contract required him to promptly notify Gallery Homes about the receipt and value of all pecuniary or other benefits he received from third parties, including clients and suppliers of goods and services.

[22] Mr Mark Dimou is the Financial Controller at Gallery Homes and commenced in that position in February 2017. After reviewing the businesses’ financial operations he discussed his analysis with Mr Barclay on 21 February and advised that a reduction in overheads of approximately 15% across-the-board was required to restore cash flow to sustainable levels. This equated to around five employees being made redundant out of the total workforce of 35.

[23] Mr Barclay subsequently told him he had decided to make five positions redundant, including Mr D’Alessandro’s position. In addition, since then there has been one further employee made redundant and two employees, who have resigned, have not been replaced.

[24] Mr Dimou did not attend the meeting on 1 March 2017, although he was aware it was occurring. He was subsequently contacted later that afternoon by Mr D’Alessandro, who directed various accusations at him. Mr D’Alessandro subsequently contacted him again later that evening about a number of other issues. On 2 March 2017 Mr Dimou emailed the termination letter to Mr D’Alessandro and forwarded the payments associated with his termination, including the redundancy component.

[25] Mr Dimou concluded by indicating that Mr D’Alessandro’s position was terminated due to genuine redundancy, however, on 10 April, he advised Mr Barclay that he had discovered from Mr D’Alessandro’s email account that he had accepted payment from land developers he was not entitled to.

[26] Mr Ivan McRobb is a Director of Scalta Developments Pty Ltd, which trades as Chatham Homes, a home design and building business operating in Victoria. In June 2015 he met with Mr Barclay and agreed to provide assistance to Gallery Homes as part of a joint venture arrangement associated with it establishing an office in Victoria. This assistance included the face-to-face management of the employees of Gallery Homes in Victoria, and the provision of office space for those employees.

[27] Mr McRobb was contacted by Mr Barclay on 28 February 2017 and told the business was no longer able to sustain a Business Development Manager position in Victoria, and that budget cuts were required in order to be able to maintain the operation of the business in Victoria. Mr Barclay said he would be in further contact on the following day. He was then asked to arrange a meeting with Mr D’Alessandro to inform him about his position being made redundant. The meeting was subsequently arranged for 2 p.m. on the afternoon of 1 March. Mr D’Alessandro met with Mr McRobb in his office and Mr Barclay joined the discussion by telephone. Mr Barclay then informed Mr D’Alessandro that his position was no longer sustainable and was to be made redundant. Mr McRobb said Mr D’Alessandro responded by throwing down the papers in his hand and storming out of the office. Mr McRobb said he followed him out of the office and, after further discussion, it was eventually agreed he would hand over his company vehicle, and one of the supervisors then drove him home. Mr McRobb also denied he had told Mr D’Alessandro that his employment was terminated “due to his personal performance or misconduct”. 7 He also indicated that he was not the decision maker in the circumstances, and was only involved in passing on information relayed to him by the principles of the business in Queensland.

Mr D’Alessandro

[28] Mr D’Alessandro states that he was employed in the role of Business Development Manager with Gallery Homes in the newly established Melbourne office, but was essentially working as a house and land package manager. In this role he was responsible for securing land for house and land packages, siting houses on lots, preparing packages for marketing, and securing house and land package sales. His employment agreement provided for commission incentive payments based on the number of sales. He submits that his employment was governed by both his employment contract and the Real Estate Industry Award 2010.

[29] His submissions refer, in particular to sub clause 3.1 of the Award which states that it extends to include:

“[s]ervices associated with sales, acquisitions, leasing and/or management of residential, commercial, retail, industrial, recreational, hotel, retirement and any other leasehold or real property and/or businesses.” 8

[30] He continues to submit that Gallery Homes acknowledges that it works in conjunction with external land developers to design and build homes to fit on particular home sites, and regularly receives referral fees as part of this arrangement. It is therefore providing services associated with the sale and acquisition of real property, and comes within the ambit of the Award.

[31] He also submits that the work involved in his position is covered by the classification of Property Sales Supervisor in B.1.3 of Schedule B to the Real Estate Industry Award 2010.

[32] He continues to submit that Gallery Homes did not comply with its consultation obligations under the Award, and there was no consultation with him at any time about possible redeployment opportunities, or the possibility of his position being made redundant. Therefore, his termination cannot be a case of “genuine redundancy” within the meaning of s.389(1) of the Act. He continues to submit that his dismissal was unfair as it is apparent that the actual reason for dismissal was because of alleged poor performance, in circumstances where he was never provided with any warnings about performance issues, or provided with any opportunity to improve his performance in response to these alleged deficiencies.

[33] Mr D’Alessandro states in his evidence that he performed well in his role of Business Development Manager and regularly achieved sales which enabled him to earn commission incentives in accordance with his employment agreement. However, in December 2016, he received the email from Mr Barclay, directed to all employees, concerning the overall poor sales performance of the business and the need to achieve sales targets. However, given that his performance or conduct was never directly addressed by the Gallery Homes, he assumed these emails were directed to other employees, and not to him.

[34] In February 2017 he was advised that because of the increased workflow in the Melbourne office he was to choose a position in either sales or land acquisition. He subsequently selected land acquisitions and was placed on a six week trial period.

[35] On 1 March he was called into Mr McRobb’s office. He understood that Mr McRobb was the Melbourne director of Gallery Homes. He was told that his job was no longer required in the Melbourne office and he had not been achieving sufficient sales in order to retain his position. Mr D’Alessandro said that because he had not been provided with any prior notice about his possible redundancy, or any issues to do with his performance he said words “to the effect of this was bullshit and walked out of Ivan’s office.” 9

[36] He subsequently had a further discussion with Mr McRobb as he was leaving the office, who told him he had only achieved limited sales results and this was not sufficient for him to retain his position. He believed that incorrect sales data was used to justify his termination and his dismissal was actually related to alleged underperformance. Mr D’Alessandro also said that while he rejects the assertion that his position was made redundant, even if this was the case, he was never consulted about the possibility of redundancy prior to the meeting on 1 March when his employment was terminated.

[37] He also indicated in cross examination that he was not employed by Gallery Homes as a real estate agent and received commissions on every sale that resulted in a home being built. In addition, the receipt of commissions was not dependent on him achieving his overall budget target. He also acknowledged that he received the emails from Mr Barclay in December and January about the overall poor sales performance of the business, but did not believe they were directed towards him personally. He did, however, acknowledge that they made it clear some jobs in the business might be at risk because of the overall sales performance. He also acknowledged that he attended the meeting on 25 January with all employees that was called to discuss the overall performance of the business.

Consideration

[38] As indicated at the outset the definition of what constitutes “genuine redundancy” is contained in s.389 of the Act, which has been set out at an earlier point in this decision.

[39] The meaning of the term in section 389 was considered by a Full Bench of Fair Work Australia in Ulan Coal Mines Limited v Henry Jon Howarth[2010] FWAFB 3488 (‘Ulan Cole Mines’), a decision referred to in the Applicant’s outline of submissions. The Full Bench in that matter considered the meaning and application of the relevant statutory provisions, including the words:

“the person’s employer no longer required the person’s job to be performed by anyone …” 10

[40] It indicated:

“[15] These were the circumstances in which it was necessary to consider the meaning and application of the relevant statutory provisions and, in particular, the expression “the person’s employer no longer required the person’s job to be performed by anyone” in s.389(1)(a) of the Act. These words have long been used and applied in industrial tribunals and courts as a practical definition of redundancy (see e.g. 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). They have also been adopted in the National Employment Standards provided under the Act in dealing with entitlements to redundancy payments (see s.119).” 11

[41] The Full Bench continued:

“[16] 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.” 12

[42] The Full Bench continued:

“[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said 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…” (at p.308)

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.” 13

[43] The first issue to be considered against this background in regard to the definition in s.389 is whether “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.” 14 I am satisfied, in response, that the evidence establishes that this issue can be dealt with relatively quickly. The evidence makes clear that it had become obvious to the management of Gallery Homes in late 2016 that the business was on an unsustainable trajectory, and could not continue on that same course if it was to survive. These issues were highlighted in an email provided to all staff by Mr Barclay in December 2016. Further emails were sent to the staff in January, and a staff meeting was then held with all staff on 25 January to discuss the problems confronting the business, and what might be done in response.

[44] Mr Dimou that arrived on the scene in February in the role of Financial Controller and confirmed, after a review of the current business model, that the business could not be sustained on its current footing. A decision was subsequently taken by Mr Barclay to reduce overheads across the business by 15%, which involved five employees being made redundant.

[45] The evidence also indicates that Mr D’Alessandro was included among that number because Gallery Homes had decided it was not going to continue to pursue further business opportunities in Victoria, and would instead simply complete the homes in Victoria that were now under construction, before stepping back from its expansion into the Victorian market. As a consequence it no longer required a Business Development Manager in Victoria.

[46] However, Mr D’Alessandro submits that the decision to make him redundant was in effect a smokescreen designed to cover up the fact he had been dismissed on performance grounds, in circumstances where he had not been provided with any prior warnings, or any opportunity to improve his performance. He therefore submits he was unfairly dismissed. I can find no evidence to substantiate this submission. The evidence of Mr Barclay and Mr Dimou is that Mr D’Alessandro’s dismissal had nothing to do issues about his work performance. Clearly, the business would have liked to have been generating additional revenue from its operations in Victoria. However, the submissions and evidence indicate that the prevailing business conditions confronting Gallery Homes in Victoria, and indeed elsewhere, were primarily derived from other factors, such as issues concerning financing, the circumstances involving international buyers, and the competition faced from other competitors in the local market, rather than being sheeted home to any deficiencies in Mr D’Alessandro’s work performance.

[47] I am satisfied, in conclusion, that the evidence makes clear that the decision by Gallery Homes to step back from its recently established Victorian operations meant it no longer required the role of Business Development Manager in Victoria to be performed by anyone because of changes in its operational requirements.

[48] The second limb of s.389 requires that “the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy. 15 Mr D’Alessandro submits his employment was covered by the Real Estate Industry Award 2010 and Gallery Homes has not complied with the consultation obligations contained in the Award. Gallery Homes submits, in response, that the Award did not extend to cover his employment but, in any case, it did consult with him prior to the decision to make his position redundant. The determination of this issue first requires consideration about whether the Real Estate Industry Award 2010 covered his employment.

[49] The definitions contained in Clause 3 of the Award include the following:

“real estate industry means the provisions of services associated with sales, acquisitions, leasing and/or management of residential, commercial, retail, industrial, recreational, hotel, retirement and any other leasehold or real property and/or businesses. Such services include:

• real estate agency;

• business and hotel broking

• strata and community title management (or similar service however described);

• stock and station agency;

• buyers agency; and

• real estate valuation.” 16

[50] Clause 4 continues to indicate, “This award covers employers in Australia engaged in the real estate industry in respect to their employees engaged in classifications in clause 14—Minimum weekly wages to the exclusion of any other modern award.” 17 Clause 14.1 then sets out the classifications in the Award. Mr D’Alessandro submits his position was covered by the Property Sales Supervisor classification contained in that list.

[51] Clause 13 “Classifications” also indicates at 13.1 that Schedule B in the Award contains a definition for each classification in Clause 14.1. Schedule B—Classifications then sets out what are described as the “Role definition” and “Indicative tasks” for each of the classification levels. The following is contained in Schedule B in regard to the Property Sales Supervisor classification:

“B.1.3 Property Sales Supervisor

(a) Role definition

(i) A Property Sales Supervisor is employed to perform a broad range of skilled applications and the provision of leadership and guidance to others engaged in Property Sales classifications.

(ii) The role involves significant initiative, judgment, decision-making and problem solving in relation to the listing, marketing and selling or commercial leasing of real property or businesses.

(iii) This person is responsible for the overall leadership and supervision of a sales team in accordance with legislative and business requirements.

(iv) The position may also involve contribution towards the development of a broad business plan/strategies and budgets and having the accountability and responsibility for self and others in achieving the outcomes.

(b) Indicative tasks

The indicative tasks for a Property Sales Supervisor are as follows:

(i) Provide leadership in the workplace;

(ii) Supervise and/or manage work team(s);

(iii) Ensure compliance with the various obligations imposed under relevant real estate law;

(iv) Implement and/or supervise quality customer service;

(v) Develop and/or supervise operational plans;

(vi) Manage personal work priorities and professional development of self and others in the work team(s);

(vii) Facilitate change and innovation;

(viii) Resolve customer complaints;

(ix) Develop and implement customer service strategies;

(x) Involvement in selling of real property or businesses, or leasing of commercial property; and

(xi) Responsibility for the overall supervision of the office as a licensed real estate agent and as required under real estate law.” 18

[52] The submissions and evidence make clear Gallery Homes is primarily involved in designing and building homes. Its revenue is principally derived from this design and build work, although it also receives referral fees from developers as an incentive to encourage the business to work with them. The evidence indicates that in his role as Business Development Manager Mr D’Alessandro was principally involved in pitching design and build sales to developers by identifying land for sale, and looking at how Gallery Homes’ designs could be situated on that land in order to put together an attractive package for potential house and land purchasers.

[53] Gallery Homes also submits that while it is involved in housing design and construction, with an overall objective of enabling land developers to sell that house and land package, it is not directly involved in providing services associated with real property in the sense described in the definition of the “real estate industry” in Clause 3 of the Real Estate Industry Award 2010.

[54] Mr D’Alessandro submits his role was covered by the Award, given that Gallery Homes works with land developers to design and build houses to fit particular sites, and regularly receives referral fees from developers as part of this arrangement. Therefore, in his submission it is providing services associated with the sale and acquisition of real property in the manner contemplated in the Award. He also submits that the Property Services Supervisor classification in the Award encompasses the work he performed in the role of Business Development Manager, although he also described his role as encompassing that of a “house and land package manager.” 19

[55] The services Gallery Homes provides to land developers in siting, designing and building homes in a way that is intended to be attractive to prospective home and land package purchasers is obviously intended to generate those house and land sales. In this sense the services Gallery Homes provides can be said to be assisting in the sale of real property. However, the same could be said about the services provided by a landscape architect or a landscape gardener, which enhance the appearance of a property, and ultimately make it more appealing to prospective purchasers. However, I am not satisfied that either Gallery Homes, or the landscape architect, can be said to actually be involved in providing real estate services associated with the sale of real property as envisaged by the definition of the “real estate industry” in clause 3 of the Real Estate Industry Award 2010. This is emphasised by the fact that Gallery Homes is certainly not providing any of the services set out in the dot points contained in the definition of the “real estate industry” in Clause 3, being “real estate agency; business and hotel broking; strata and community title management (or similar service however described); stock and station agency; buyers agency; and real estate valuation.” 20

[56] Mr D’Alessandro also submits that his role is encompassed within the “Property Sales Supervisor” classification in the Award. Schedule B in the Award provides more detailed role definitions and indicative tasks in respect of that particular classification. The description in the “Role definition” in the Schedule indicates that the classification is particularly related to a role of providing leadership and guidance to others engaged in property sales classifications. The list of indicative tasks also makes clear that it is a classification associated with the sale of property as a real estate agent. Again, for the reasons set out above I am not satisfied that Gallery Homes, or Mr D’Alessandro’s role as an employee of Gallery Homes, involved work that was covered under the scope of the Real Estate Industry Award 2010. In addition, the evidence indicates that Mr D’Alessandro’s employment was not covered by an enterprise agreement.

[57] It follows as a consequence that Gallery Homes was not under any obligation created by a Modern Award or enterprise agreement to consult with Mr D’Alessandro about his position being made redundant, regardless of any consideration of whether any such discussion or communication might have occurred.

[58] Section 389(2) also indicates that a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the business, or with an associated entity of the business.

[59] The question of what is required in terms of the obligations imposed by section 398(2) has also been considered by this Tribunal and its predecessor. In Ulan Coal Mines Limited v Honeysett and Others a Full Bench of the Tribunal held in regard to section 389(2):

“The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.” 21

[60] Mr D’Alessandro was working with a small team in the Victorian office and there is no suggestion that redeployment to another position was a realistic option in Victoria. In addition, the evidence of Mr Barclay and Mr Dimou indicates that a number of other employees were also made redundant around the same time as Mr D’Alessandro and, in addition, two other employees who voluntarily resigned from their employment were not replaced. The evidence also indicates that any possible discussions about this option were curtailed when Mr D’Alessandro abruptly left the meeting when told his position was to be made redundant. However, leaving this aside the submissions and evidence do not indicate that it would have been reasonable, in all the circumstances, for Mr D’Alessandro to be redeployed to another position within Gallery Homes, or any associated entity.

Conclusion

[61] I have considered what is required in s.389 of the Act for a person’s dismissal to be considered to be a case of “genuine redundancy.” I have also had regard to the submissions and evidence I consider relevant in all the circumstances to the determination of this matter. I am satisfied, in conclusion, that Mr D’Alessandro’s dismissal was a case of “genuine redundancy” as defined by s.389 of the Act. Section 385 of the Act continues to provide that if an employee’s dismissal is in a case of “genuine redundancy” then the employee has not been unfairly dismissed. The application is accordingly dismissed.

COMMISSIONER

Appearances:

G D’Alessandro on his own behalf.

C Dowling for the Respondent.

Hearing details:

2017.

Melbourne:

July 18.

 1   Fair Work Act 2009 (Cth) s 385.

 2   Fair Work Act 2009 (Cth) s 389.

 3   MA000106.

 4   Respondent’s submissions as to jurisdictional objection, dated 22 May 2017, at [3.8].

 5 Exhibit GH1 at [11].

 6   See GH1 at [16]-[29].

 7 Exhibit GH4 at [13].

 8   Real Estate Industry Award 2010 at cl 3.1.

 9 Exhibit GD1 at [10].

 10   Fair Work Act 2009 (Cth) s389(1)(a).

 11   Ulan Cole Mines[2010] FWAFB 3488 at [15].

 12 Ibid at [16].

 13 Ibid at [17].

 14   Fair Work Act 2009 (Cth) s.389(1)(a).

 15   Fair Work Act 2009 (Cth) s 389(1)(b).

 16   Real Estate Industry Award 2010 at cl 3.1.

 17   Real Estate Industry Award 2010 at cl 4.1.

 18   Real Estate Industry Award 2010 at sch B.1.3.

 19 Exhibit GD1 at [1].

 20   Real Estate Industry Award 2010 at cl 3.

 21   [2010] FWAFB 7578 at [28].

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