John Barnes v The Salvation Army

[2019] FWC 231

[2019] FWC 231

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Barnes
v
The Salvation Army
(U2018/7231)

COMMISSIONER WILSON MELBOURNE, 17 JANUARY 2019

Application for an unfair dismissal remedy.

[1] John Barnes was employed by The Salvation Army (Victoria) Property Trust as Trustee for The Salvation Army (Vic) Social Work in one of its organisational units known as Westcare between 10 November 2014 and 30 June 2018. This decision concerns Mr Barnes’ application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) following his termination of employment by the Respondent, referred to in this decision either as The Salvation Army or Westcare.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. One of those matters is the question of whether or not the dismissal was a genuine redundancy within the meaning of the Act with that question being determined by me below. Neither party put forward that the three remaining initial matters required such consideration. In relation to the elements within s.396, I find that Mr Barnes’ application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code do not arise.

[3] Prior to the commencement of proceedings I sought the views of the parties regarding the form which the proceedings should take (s.399) and indicated to them that I considered appropriate for the matter to proceed by way of a Determinative Conference rather than through a more formal hearing process. Neither party objected to my suggestion.

[4] Mr Barnes was represented in the proceedings by his friend and accountant, Peter Jess. The Salvation Army was represented by Paula Thomson of the Australian Federation of Employers and Industries.

[5] For the reasons set out below, I have found that Mr Barnes’ termination of employment was a genuine redundancy within the meaning of the Act and that accordingly his application for unfair dismissal remedy must be dismissed.

BACKGROUND

[6] Evidence in this matter was provided by the Applicant, Mr Barnes and two character references Vincent Campisi and Danny Coomber, and on behalf of The Salvation Army, by Alison Levings, HR Business Partner. In forming my views about the matters in contention between the parties I have had regard not only to the evidence of each of these people, but also to matters set out in the submissions from the respective parties.

[7] Between November 2014 and June 2018 Mr Barnes was engaged by Westcare as a casual reliever in one of its residential care services providing assistance to young people. The casual nature of Mr Barnes’ employment is stated in a brief “Casual Employment Form” signed by him, undated, but apparently from around the time he was first engaged. The Respondent describes Westcare as operating in the northern and western regions of Melbourne for young people who are considered at highest risk in the community. Ms Levings, gave evidence that:

“6. Westcare delivers various programs in the northern and western regions of Melbourne for babies, children, and young people who are not able to reside with their families, and young people who are considered being at highest risk in the community. Westcare has historically provided both home-based care services, and residential care services.

7. Residential services provided by the respondent included support and accommodation to young people between the ages of 12 and 18 who have been removed from home by the Department of Health and Human Services Protective Services due to protection and care issues.” 1

[8] While it is stated by both parties that Mr Barnes’ was employed by Westcare between November 2014 and June 2018 there must be at least some question about the extent to which there was an employment contract in operation at the ostensible date on which his employment ended on 30 June 2018. This is because Mr Barnes’ was employed as a casual employee and, due to the circumstances referred to below regarding an investigation into Mr Barnes’ behaviour, he did not perform any work with The Salvation Army after 17 January 2017.

[9] Ms Levings’ evidence records that between 10 November 2014 and 17 January 2017 that Mr Barnes performed residential care work of a variable amount from as little as 8 hours per fortnight to as much as 86 hours per fortnight. 2 These engagements were predominantly at one of Westcare’s residential units known as “Cornwall”. However, after January 2017 allegations of misconduct were made against Mr Barnes which required an investigation to be conducted by the Victorian Department of Health and Human Services (DHHS) and which resulted in Mr Barnes’ ceasing to receive further work pending the outcome of that review.3

[10] As a result, no work was performed by Mr Barnes for The Salvation Army after 17 January 2017. On 27 January 2017 The Salvation Army wrote to Mr Barnes in the following terms:

“Dear John,

As you are aware The Salvation Army, Westcare is currently unable to offer you any further shifts as a casual staff member at this time as you are the subject of a Quality of Care matter.

Westcare will endeavour to have this matter dealt with in a timely manner. You will be required to be interviewed in the near future.

If you have any queries I can be contacted on the numbers below.

Many Thanks,

Stephen Clark

Program Manager, Residential Services” 4

[11] The DHHS investigation took its time, with it being unclear when it concluded, 5 and with Ms Levings giving evidence that the outcome of the DHHS investigation included:

“…that there was substantiated physical abuse by the applicant towards a child in the respondent's care. The DHHS advised the respondent that as a result of this finding, the applicant would be referred to a suitability panel.”

[12] Ms Levings’ evidence is that a suitability panel exercises powers under relevant Victorian legislation and is responsible for determining whether a person will be disqualified from performing care work. 6 Ms Levings’ evidence is that the suitability panel hearing for Mr Barnes is yet to be held and that the dates of not yet been confirmed.7

[13] The residential care services undertaken by The Salvation Army Westcare unit was entirely funded by the DHHS and in March 2018 The Salvation Army was notified by the DHHS that funding for the Westcare residential and intenstive case management services would be withdrawn by the Department from 30 June 2018. Until that time it employed a significant number of people in different functions. Ms Levings evidence about the situation is that:

“10. Through Westcare residential services, the respondent employed 156 staff in various roles, including residential care workers (youth workers), case managers, unit manager, shift coordinator, for the provision of its residential and intensive case management services at various locations.

…

25. On 7 March 2018, the respondent was notified by the Deputy Secretary Western Division of the Victorian DHHS that it would not be funding the Westcare Residential and Case Management Services from 30 June 2018.

26. Due to the Department's withdrawal of funding, the respondent could not continue to provide residential care and intensive case management services from 30 June 2018.”

[14] On 7 March 2018 staff were advised that Westcare would be meeting with DHHS to discuss the future of its residential services and that a meeting would be held on 8 March 2018 with employees to discuss the outcome of those discussions. Mr Barnes gave evidence during the hearing that he did not attend the meeting because he was unaware of it taking place owing to there being some confusion surrounding whether Mr Barnes’ had access to a company email account at the time or not in order to receive notification of the meeting. 8 At the meeting representatives of Westcare, including its General Manager, Peter Mulholland attended and explained:

“that DHHS had made the decision to withdraw funding from Westcare as of 1 July 2018 in relation to provision of residential care services, and that Westcare would no longer be providing services in residential care. I don't know whether the applicant attended this meeting.

[15] Following the meeting on 8 March 2018 an email was sent to affected employees on the same day which communicated:

“Westcare Communication

What’s today’s announcement about?

We are aware that DHHS have made a statewide decision to re-purpose case management of high risk clients as of 1/7/18. What this means is that case management of High Risk Clients will go back to Child Protection (Statewide) on that date.

DHHS have also made the decision to withdraw funding from Westcare as of 1/7/18 in relation to provision of Residential Care and Intensive and Case Management Services (I&CMS).

Funding for Transitional Services and Westcare Fostercare has not been affected by these decisions.

Impact on Westcare?

This decision means that Westcare’s funding will be reduced by $11.5 million as of 1/7/18.

The structure of Westcare will change dramatically in the future.

Westcare will no longer provide services in Residential Care and I&CMS.

How will this impact me?

All staff in currently employed in Residential Services and I&CMS are affected by these decisions.

Once a new provider of residential services is in place, the Department will work with them to ensure current staff at Westcare will be given first opportunity to apply for roles.

Decisions regarding ongoing employment at Westcare will be determined by the restructure that we will be working on in the coming weeks. Consultation of these changes will take place with staff as required.

What’s the impact to Kids?

Westcare is committed to minimising the impact on our kids.

As of next week the Department will be in contact with kids and families affected by this decision.

It’s anticipated that kids will stay in Westcare’s Residential homes and a new organisation will eventually provide Residential care to the kids.

What will happen next?

If you have any further questions a meeting is planned for Tuesday 13 March 18 at 11.30am at the Westcare office. This meeting is not compulsory but will take place in order for you to ask any further questions.

We have on site EAP services available for you to access today or alternatively you can access them at anytime via [phone number removed].

Peter Mullholland will be available to all staff to answer any questions directly or you may contact him via telephone or email. [contact details removed]

Who can I speak with to discuss my personal circumstances?

Employees will have available to them a number of different support persons to assist them through the change process.

The first point of contact is a Senior Manager.

Employees can access EAP services through [contact details removed]. EAP will be on site for employees to access a counsellor.” 9

[16] As set out in the above communication a further meeting of staff was scheduled on 13 March 2018. At that second meeting:

“…Westcare residential services employees had an opportunity to provide feedback and raise any concerns about the changes, which they did. I don't know whether the applicant attended this meeting.” 10

[17] At various stages during this process Mr Barnes’ put forth that representatives of the Australian Services Union were in attendance. Mr Barnes was a member of the union and attended one or more meetings with the union, and may have even organised one of them, however it is unclear whether any of those meetings are the ones referred to above. 11

[18] On 18 May 2018, The Salvation Army sent Mr Barnes a letter drawing his attention to the loss of funding and that he would not be engaged after 30 June 2018. Mr Barnes thinks he received the letter, 12 which is partly in the following terms:

“Dear John,

ID: [redacted]

Workplace Change- Westcare

As advised 8th March 2018, the Department of Health and Human Services announced that they will no longer fund The Salvation Army (TSA) to provide Westcare Residential and Case Management Services beyond 30 June 2018. As a result, TSA will be ceasing its provision of Westcare Residential and Intensive Case Management Services on 30 June 2018.

I confirm that after 30th June 2018 we will not be engaging you on further casual work within the Westcare residential services and no further shifts can be offered after that date.

Between now and the 30th June 2018, The Salvation Army will support you in seeking other suitable employment opportunities within the organisation.

As per our Code of Conduct, TSA will continue to honour our commitment to the privacy and confidentiality of your information. You are also reminded that your obligation in regard to maintaining privacy, confidentiality and intellectual property extends beyond the employment period.

In addition if there any are further suggestions you would like TSA to consider which may mitigate the impact of this decision and process on you, then please do.so by contacting your HR Business Partner.” 13

[19] Also during May 2018, The Salvation Army commenced a process of telephoning individual affected employees. 14 An endeavour was made to call Mr Barnes about the situation on 28 May 2018 when:

“37. My colleague Natalie Luhrs informed me that she made a call at 3.11pm on 28 May 2018 to the phone number listed for the applicant in the respondent's records and left a message for the applicant to call her.”

[20] When it became clear to Ms Levings that there may have not been sufficient contact with Mr Barnes, further contact was attempted:

“38. On 30 May 2018, when reviewing the master spreadsheet Ms Luhrs and I identified that no response had been received from the applicant. I arranged for a letter to be posted to the address listed in the respondent's records as being the applicant's residential address. A copy of the letter posted on 30 May2018 is annexed and marked '8.'

39. If the applicant had contacted Westcare reception after 30 May 2018 and asked to speak with the HR business partner, he would have been put through to me, as Westcare is in my portfolio, and I was stationed at the Westcare location at the time.

40. The applicant did not at any time contact me about the letter posted to him on 30 May 2018.”

[21] After receiving no contact from Mr Barnes, Ms Levings arranged for an Employee Leaving Advice form to be provided to Mr Barnes confirming that his last day of employment would be 30 June 2018 as well as providing him with a centre link employment separation certificate. 15

[22] Finally, it is Ms Levings’ evidence that;

“Since 30 June 2018, the respondent's Westcare organisational unit has not been in the business of providing residential care and intensive case management services, and has not employed staff in positions associated with such.”

[23] In relation to the possibility of redeployment elsewhere in the organisation, Ms Levings gave the following evidence;

“THE COMMISSIONER: … Tell me about whether it would have been reasonable to consider a redeployment of Mr Barnes either within WestCare or in something connected with the trust or elsewhere in the trust?

MS LEVINGS: In relation to WestCare, from 30 June there were no longer any residential youth worker positions because we ceased providing residential support. In relation to SalvoCare Eastern, which is the only other entity within - that I'm aware of within The Salvation Army Trust in Victoria, the residential houses are in the south eastern suburbs and down onto the Mornington Peninsula. During the time we were very - I was very aware during the time of - following the announcement until closure that any jobs that became available in anything that would remotely be suitable for any redeployees was sent to me, and they were emailed out and also on the newsletter. The Salvation Army has an internal and external website for vacancies and any roles that were there that were suitable for any potential employees in WestCare were disseminated out, so please have a look at this.

THE COMMISSIONER: I'm sorry, what did you say about the job site, was that internal or - - -

MS LEVINGS: There is an internal but it's also on The Salvation Army. There's a vacancy careers section in there. I am aware of one position that came up which was a house supervisor in the SalvoCare Eastern area. I wouldn't have thought that that would have been a suitable redeployment for Mr Barnes.” 16

LEGISLATION

[24] The legislative provision relevant to whether Mr Barnes’ termination of employment was a genuine redundancy are set out in s.389 of the Act, which is 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.”

CONSIDERATION

[25] As set out above, the meaning of genuine redundancy is set out within s.389 of the Act. Three relevant tests are set out within the section; firstly a person’s employer must no longer require their job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; secondly the employer must have complied with any obligation in a modern award or enterprise agreement to consult about the redundancy; and thirdly it is the case that a matter is not a genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed either within the employer’s enterprise or that of an associated entity.

[26] The evidence supports findings in respect of the first and third of these elements. That is, in relation to the first element, it is demonstrably the case that The Salvation Army no longer required Mr Barnes’ job to be performed by anyone because of the loss of funding for the Westcare service from DHHS. In relation to the third element relating to the potential for redeployment, the evidence allows a finding that it would not have been reasonable in all the circumstances for Mr Barnes to be redeployed, with Ms Levings giving evidence that there was no longer any residential youth worker positions within Westcare once the residential support care funding ceased from DHHS. While Westcare is part of a larger trust being The Salvation Army (Victoria) Property Trust as trustee for The Salvation Army Victoria Social Work there is only one other entity within the Trust which provides residential support and it is located in the south eastern suburbs and Morning Peninsula. Ms Levings evidence was that following the announcement of the closure of the residential support services at Westcare ‘any jobs that became available in anything that would remotely be suitable for any redeployees was sent to her, and were both emailed out to employees and published in the newsletter. 17 This evidence was uncontested by Mr Barnes.

[27] In relation to the second of the elements, going to the question of compliance with the consultation provisions of an applicable modern award or enterprise agreement, Mr Barnes employment was subject to the Westcare Enterprise Agreement 2015 (the Agreement), 18 with the Agreement applying only to The Salvation Army but also to:

“3.2 All employees employed by the Employer engaged in an occupation classification covered by the Social, Community, Home Care & Disability Services Industry Award 2010 ("the Award") schedule B levels 1 to 8 inclusive or as otherwise provided under this Agreement, in an employment category specified at clause 9.1.1.”

[28] Clause 9 of the Agreement sets out three categories of employment including casual employment with those terms to be as provided for in the modern award. The Award provides:

•  Firstly that it covers residential care work; and

•  Secondly that it covers casual employees.

[29] The combination of these matters allow a finding that Mr Barnes was covered by the Agreement, which provides the following in relation to consultation:

“7. Consultation

7.1 This term applies if:

a. the employer has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to the Employer; and

b. the change is likely to have a significant effect on employees of the Employer.

7.2 The employer must notify the relevant employees of the decision to introduce the major change.

7.3 The relevant employees may appoint a representative for the purposes of the procedures in this term.

7.4 If:

a. a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

b. the employee or employees advise the employer of the identity of the representative;

the employer must recognise the representative.

7.5 As soon as practicable after making its decision, the employer must:

a. discuss with the relevant employees:

(i) the introduction of the change; and

(ii) the effect the change is likely to have on the employees; and

(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and

b. for the purposes of the discussion- provide, in writing, to the relevant employees:

(i) all relevant information about the change including the nature of the change proposed; and

(ii) information about the expected effects of the change on the employees; and

(iii) any other matters likely to affect the employees.

7.6 However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

7.7 The employer must give prompt ·and genuine consideration to matters raised about the major change by the relevant employees.

7.8 If a term in this Agreement provides for a major change to production, program, organisation, structure or technology in relation to the Employer, the requirements set out in subclauses (2), (3) and (5) are taken not to apply.

7.9 In this term, a major change is likely to have a significant effect on employees if it results in:

a. the termination of the employment of employees; or

b. major change to the composition, operation or size of the employer's workforce or to the skills required of employees; or

c. the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

d. a significant alteration to hours of work; or

e. the need to retrain employees; or

f. the need to relocate employees to another workplace excluding relocations to workplaces or units which are operated or the responsibility of the Employer; or

g. the restructuring of jobs.

7.10 In this term, relevant employees mean the employees who may be affected by the major change.”

[30] To the extent that Mr Barnes was an employee of The Salvation Army in the period of March to June 2018 (and I make no findings on the subject), he was entitled to the consultation process which is set out in the foregoing clause. The provision requires that the relevant employees, being those employees who may be affected, must be notified of the change and that following the notification that the employer must discuss with them the matters set out in clause 7.5(a) and provide them with written information about the matters set out in clause 7.5(b). Further The Salvation Army was under an obligation to give prompt and genuine consideration to matters which may be raised by the relevant employees about the change.

[31] The evidence shows conclusively that The Salvation Army complied with these obligations. Firstly the obligation on The Salvation Army is to notify and inform and discuss with the “relevant employees”. The use of the term in the plural leads to the conclusion that the obligation may reasonably be satisfied by taking those steps in relation to the employment cohort generally. While this matter is about Mr Barnes individually, it was reasonable for The Salvation Army to approach the matter as one affecting the cohort generally. That is, because a large group of employees were involved, it was reasonable that its dealings were perhaps more general than might be required where there was a singular redundancy in question.

[32] In any event, The Salvation Army took steps individually in respect of Mr Barnes when it became apparent that he may not have been aware of the change in Westcare circumstances. It endeavoured to telephone him about the situation on 28 May 2018 and then wrote to him on 30 May 2018. There is no ambiguity within the correspondence to Mr Barnes; the change in circumstances of Westcare was fully and properly communicated to him and he was given an opportunity to provide further suggestions to The Salvation Army about the impact of the decision, which he ultimately did not respond to.

[33] As a result of the foregoing, I am satisfied that the termination of Mr Barnes by The Salvation Army was a genuine redundancy. It therefore becomes necessary to dismiss Mr Barnes’ application for unfair dismissal remedy.

[34] An order dismissing Mr Barnes’ application will be issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr P. Jess, paid agent for the Applicant.

Ms P Thomson, for the Respondent.

Hearing details:

2018.

Melbourne;

23 November.

Printed by authority of the Commonwealth Government Printer

<PR703864>

 1   Exhibit R3, Witness Statement of Alison Levings.

 2 Ibid, [15]-[16].

 3   Ibid, [19].

 4   Ibid, Attachment 4.

 5   Transcript, PN 857 – 862.

 6   Exhibit R3, [22].

 7   Ibid, [23].

 8   Transcript, PN620-630.

 9   Exhibit R3, Attachment 7.

 10   Ibid, [31].

 11   Transcript PN445-451.

 12   Ibid, PN446 – 447.

 13   Exhibit R3, Attachment 8.

 14   Ibid, [35].

 15 Ibid, [41] – [42].

 16   Transcript, PN849 – 852.

 17   Transcript, PN850.

 18   AE416047.