Gregory Pinnock v Federation Training

[2016] FWC 5745

[2016] FWC 5745

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gregory Pinnock
v
Federation Training
(U2016/6074)

COMMISSIONER BISSETT MELBOURNE, 16 AUGUST 2016

Application for relief from unfair dismissal – applicant unfairly dismissed.

[1] Mr Gregory Pinnock has made an application seeking relief from unfair dismissal. Mr Pinnock was employed by Federation Training as a Work Placement Officer (WPO). He commenced in the position on an on-going part-time basis on 11 February 2013. His employment was terminated on 24 March 216. Federation Training says that Mr Pinnock’s employment was terminated by reason of redundancy. Mr Pinnock claims it was not a genuine redundancy and that he was unfairly dismissed.

[2] Mr Pinnock also held a position of casual teacher regularly teaching First Aid courses with Federation Training. He commenced in this position in 2011 on contract with his most recent contract being for the period of 12 January 2015 until 31 December 2015. That contract was not renewed when it expired on 31 December 2015.

Legislation

[3] Section 385 of the Fair Work Act 2009 (the Act) states:

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.

[4] In this case Mr Pinnock claims that his dismissal was not a genuine redundancy.

[5] Section 389 of the Act states:

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.

Evidence and submissions

[6] Mr Pinnock says that his dismissal was not a case of genuine redundancy as there were at least two casual teaching positions available at the time he was dismissed he could have been redeployed into. He says he has the skills to do the teaching work as he had done it in the past. The two positions available at the time of his redundancy were a casual First Aid teacher and a casual Victorian Certificate of Applied Learning (VCAL) teacher at the Sale campus.

[7] Mr Pinnock says that he is aware of people who had been offered casual teaching contracts since the commencement of 2016.

[8] Mr Pinnock’s says that he had understood in 2015 that his position might be under threat but he was not advised until the meeting of 22 March 2016 that his position was to be abolished and that he would be dismissed because of redundancy. He says that if he had known prior to 22 March 2016 that his position was to be made redundant he would have actively sought other positions with Federation Training.

[9] Mr Pinnock considers casual teaching positions to be reasonable redeployment as he says he has earned more from his casual teaching work in the last 12 months than he has from his position as WPO.

[10] Mr Pinnock provided the Commission with a list of vacancies at Federation Training notified in April 2016. He says he could have undertaken the administrative or casual teaching positions.

[11] Mr Pinnock says that he did not accept the position in student support services offered to him in mid 2015 as his manager, Mr Shelton, had said he did not want to lose him from his team. He says he did not accept an alternative position offered to him in early 2016 because he asked Mr Shelton about his conditions and Mr Shelton never got back to him.

[12] Ms Sharon Junker is the Human Resources Operations Manager at Federation Training. Her evidence is that in March 2016 she had a number of discussions with Mr Pinnock’s manager with respect to the on-going sustainability of the WPO position occupied by Mr Pinnock. She says that on 7 March 2016 a request was made to the CEO to enter into a redeployment and redundancy process in line with the business’ policy.

[13] Her evidence is that at the time Mr Pinnock was advised that his position was to be made redundant, it was deemed by Federation Training that there were no suitable positions for him to be redeployed in to. She says that the process applying in such circumstances allows Federation Training to move straight to redundancy without going through the redeployment process and this is what occurred in this instance.

[14] She says that the VCAL teaching position in Sale was not considered suitable redeployment as it was a casual position. She also says that Mr Pinnock’s casual training hours in First Aid were highly variable.

[15] Further, Ms Junker says that it had been decided that available teaching hours would be allocated to existing under-utilised staff and not to casual staff.

[16] Ms Junker says that whilst the student support services position offered to Mr Pinnock in 2015 was a fixed term position, if it had not continued past the end of 2015 Mr Pinnock would have moved back to the WPO position, but it was expected the position would continue into 2016.

[17] Mr Mark Shelton is the Education Manager – General Education. Mr Pinnock worked in his area of responsibility.

[18] His evidence is that prior to 2015 there were two WPO positions – one based in Sale and the position occupied by Mr Pinnock in Bairnsdale. The Sale position was abolished in early 2015. He says that at the time of the abolition of the Sale WPO position he told Mr Pinnock that it was unlikely that his position would remain. He says that he encouraged Mr Pinnock to find alternative work through 2015 and told him he would do everything he could to keep Mr Pinnock in employment.

[19] Mr Shelton says that Mr Pinnock was a valuable member of his team but he had to find efficiencies. The WPO functions previously performed by Mr Pinnock have now been taken on by teachers, through Student Support Services and Skills and Job Centre.

[20] Mr Shelton say that Mr Pinnock was advised before the end of 2015 that there would be no more sessional teaching offered to him after the end of the year.

[21] Ms Trudy Walker is the Manager Student Support Services (known as the Bubble). Her evidence is that in May 2015 she approached Mr Shelton to ask if he had any staff based in Bairnsdale who could work in the newly established area. She approached Mr Pinnock who declined to move into the role. She says that she answered all of Mr Pinnock’s questions about the conditions that would apply to the position.

[22] Ms Walker says the position offered to Mr Pinnock in the Bubble did roll over to 2016 and is expected to continue into 2017.

Consideration

[23] In this case, the first matter to decide is if Mr Pinnock’s dismissal was a genuine redundancy.

[24] Federation Training is an amalgamation of East Gippsland Institute of TAFE and Advance TAFE. As a result of that amalgamation a number of positions have been made redundant with many positions being abolished through natural attrition. Federation Training says that there may be a further 5-10% decline in staffing over the coming year.

[25] I am satisfied that the work previously done by Mr Pinnock is no longer required to be done by anyone because of change in the operational needs of the business. While I accept that the functions or tasks performed by Mr Pinnock are still being done, this work has been distributed amongst other staff and the job he did no longer exists as a discrete position.

[26] Mr Pinnock made no submissions that Federation Training had not met its requirements to consult in accordance with the relevant award or agreement. I am not convinced that they have met this requirement but no submissions were made on the matter. Given my findings below it is not necessary that I reach a concluded view on this.

[27] The matter to be determined is if it would have been reasonable to redeploy Mr Pinnock into one of two casual teaching positions.

[28] The evidence before the Commission supports the conclusion that Mr Pinnock was formally advised that his position was to be made redundant at a meeting with Ms Junker and Mr Shelton on 22 March 2016. There is no evidence that he was provided with any formal advice that this was likely prior to this date, although I accept that Mr Shelton did warn Mr Pinnock of the possibility.

[29] Mr Pinnock finished work of 22 March 2016. Federation Training had decided, prior to the meeting with him, that there were no suitable positions into which he could be redeployed. There was no consultation with Mr Pinnock about whether he was aware of any positions into which he would like to be considered for redeployment and Federation Training denied Mr Pinnock the eight week period provided for under the relevant enterprise agreement within which he might investigate suitable redeployment options.

[30] Mr Pinnock demonstrated during the hearing of his application that he had a level of flexibility in terms of the work he would be prepared to perform. To remain employed with Federation Training he was willing to move into a causal teaching position. Federation Training however provided no opportunity for him to express such a view or to allow him to explore what might be available.

[31] By denying Mr Pinnock this opportunity, I am satisfied that Federation Training did not make a proper assessment of whether it was reasonable in all the circumstances to redeploy Mr Pinnock. The decision as to suitable redeployment options, when there are positions available, is not one to be made by the employer alone without good grounds, for example, where the vacant positions are at level well removed from that of the affected employee in responsibility and salary or where the positions are well outside the skill set of the employee. Options for redeployment may well be known to an employee. In this case, by making the decision without speaking to Mr Pinnock, Federation Training has made an unfounded decision as to the reasonableness of redeployment.

[32] The actions of Federation Training in not exploring all options for redeployment in conjunction with Mr Pinnock have denied him an opportunity to find a suitable position for redeployment.

[33] For this reason, I must find that the dismissal of Mr Pinnock was not a genuine redundancy.

[34] I therefore find that Mr Pinnock has been unfairly dismissed.

Remedy

[35] I am satisfied that Mr Pinnock was protected from unfair dismissal and that he was unfairly dismissed. It is therefore necessary to consider a remedy for that unfair dismissal.

[36] Mr Pinnock does not seek reinstatement and I am satisfied that reinstatement is inappropriate in the circumstances. I shall therefore consider appropriate compensation.

[37] Section 392 of the Act states:

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) 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.

Compensation cap

(5)  The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6)  The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

[38] I am not satisfied that I have received full submissions from the parties, and in particular Federation Training, with respect to compensation. I therefore require that:

1. Mr Pinnock provide any further submissions with respect to compensation addressing the matter set out above in s.392(2) of the Act by close of business 31 August 2016;

2. Federation training provide any further submissions with respect to compensation by close of business on 14 September 2016

3. Mr Pinnock provide any submissions in reply by close of business on 21 September 2016.

4. Parties are asked to indicate at the time of making submissions if they wish to be heard on the submissions or if they are satisfied for the Commission to make a decision on the basis of the papers.

COMMISSIONER

Appearances:

G. Pinnock on his own behalf.

M. Potter for Federation Training.

Hearing details:

2016.

Bairnsdale:

August 9.

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