Jason Wheatley v A Carter and Sons Pty Limited

[2010] FWA 7129

[2010] FWA 7129

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Wheatley
v
A Carter & Sons Pty Limited
(U2010/8216)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 14 SEPTEMBER 2010

Termination of Employment.

[1] This application was heard in Sydney on 4 August 2010 and 2 September 2010.

[2] Mr Wheatley represented himself. Mr Gerard Abood of Ledlin Partners, solicitor, appeared for A Carter & Sons Pty Limited (Carters).

[3] Carters submitted that it had had no complaints concerning Mr Wheatley’s conduct or performance. Carters’ position was that Mr Wheatley was not unfairly dismissed, but that Mr Wheatley’s termination of employment was a case of genuine redundancy.

[4] In a recent Full Bench decision of this Tribunal, there is an extensive discussion of relevant considerations in an application involving a consideration of “genuine redundancy”:

“[2] The relevant provisions of the Act are ss.385 and 389. Section 385 sets out when a person has been unfairly dismissed. One of the requirements in the section is that Fair Work Australia (FWA) must be satisfied that “the dismissal was not a case of genuine redundancy” (s.385(d)). Section 389 sets out what will and what will not constitute a genuine redundancy. It provides:

“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.”

...

[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.

[18] In Kekeris v A. Hartrodt Australia Pty Ltd[2010] FWA 674 Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:

“When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists.” (at par [27])”

[5] I have considered and relied on the supplementary statement of Colin South, the General Manager of Carters. 1

[6] Mr South’s evidence in relation to Mr Wheatley’s role was that:

“30. When Mr Wheatley was made redundant in April, there was nobody employed by Carters to replace him, either at that time, shortly thereafter or to this date.

31. Mr Wheatley’s position as the 3rd EID run off-sider had become redundant and all of Carters efforts to re-employ him with the business were futile, as there was no meaningful work for him to perform.”

[7] I accept Mr South’s evidence. I am satisfied that there was a decrease in the work generally available at Carters and that there was no longer a position available for Mr Wheatley. I am satisfied that Carters made Mr Wheatley aware of the decreasing opportunities for work. I am satisfied that Mr Wheatley’s termination of employment arose from a genuine redundancy. This is not any reflection on Mr Wheatley or his evidence.

[8] Mr Wheatley’s application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr J Wheatley, on his own behalf.

Mr G Abood, solicitor, for the respondent.

Hearing details:

2010.

Sydney.

August, 4 and

September, 2.

 1   Exhibit Abood 2, 2 September 2010

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