Jose Figueira v Portugal Madeira Sydney Social and Cultural Sports Club Ltd t/as Portugal Madeira Club Ltd

[2016] FWC 4041

[2016] FWC 4041

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Jose Figueira
v
Portugal Madeira Sydney Social & Cultural Sports Club Ltd t/as Portugal Madeira Club Ltd
(U2015/16495)

DEPUTY PRESIDENT SAMS SYDNEY, 21 JUNE 2016

Application for an unfair dismissal remedy – Office Administrator of small community based Club – whether dismissal a case of genuine redundancy – financial difficulties – role no longer required – consultation – other alternative positions – genuine redundancy established – objection made out – application dismissed.

[1] As its name suggests, the Portugal Madeira Sydney Social & Cultural Sports Club t/as the Portugal Madeira Club (the ‘Club’) is a small community based organisation providing licensed club facilities and associated services for the Sydney Portuguese community. It has about 800 members. Like other community organisations of its kind, the Club has experienced financial difficulties in recent years, with declining membership and falling income. Financial records for the Club disclose that for the financial years 2014 and 2015 the Club’s net losses were $67,182 and $160,185 respectively. Poker machine revenue was down 60% and function revenue down 25%.

[2] At the time, the Club had reduced the number of its employees from 9 to 4 (although I note this number is disputed). A number of other cost saving measures were introduced by a new Board of Directors elected on 27 September 2015 with Mr Daniel Gouveia as President. These measures included:

• increasing the price of meals;



• replacing the Chef;



• extending the Club’s opening hours;



• roster changes; and



• volunteers undertaking work previously performed by employees.

[3] Mr Jose Dinarte Figueira was the Club’s Office Administrator from 29 September 2010 until his employment was terminated for reasons of alleged redundancy on 16 November, 2015. A letter of termination dated 12 November 2015, from the Club’s solicitors, Capogreco & Associates was expressed in the following terms:

‘As you are aware, the club has been in a steady decline for some time and has had to source loans in order to meet its obligations.

The newly elected directors have looked at all operations of the club to determine where costs may be saved in order to make the club viable. A decision was made that overheads and wages were to be slashed and as a result the committee regrets that your position has been made redundant.

The Redundancy will be effective from 16 November 2015.

As you have been employed with the club for five years you will be paid 4 weeks in lieu of notice plus a further week because you are over 45 in accordance to the award.

The clubs accountant will be working out your other entitlements such as long service and holiday pay and will be providing you with a severance notice.

Your employment and last day of service will be the 13 November 2015.

The directors and committee wish you the best for the future.’

[4] On 3 December 2015, Mr Figueira filed an application, under s 394 of the Fair Work Act 2009 (the ‘Act’) in which he denied his termination of employment was a case of genuine redundancy (presumably under s 389 of the Act), and claimed that his dismissal was ‘harsh, unjust and reasonable (and vindictive)’.

[5] Unsurprisingly, the Club filed an objection to the unfair dismissal application on the grounds that Mr Figueira’s dismissal was a case of genuine redundancy. While the Club is a small business (as defined) the question as to whether the Small Business Fair Dismissal Code (the ‘Code’) applies only becomes relevant if the Club’s objection is dismissed. For present purposes, however, the only contest before the Commission is whether Mr Figueira’s dismissal was a case of genuine redundancy.

[6] Notwithstanding attempts at settling the matter, the Club’s objection was heard on 11 and 12 April 2016. Mr Kaufmann of Counsel appeared with Mr J Capogreco, Solicitor for the Club and Mr A Duc, Barrister, appeared with Ms K Figueira for Mr Figueira. Mr Kaufmann, Mr Duc and Mr Capogreco were granted permission to appear pursuant to s 596 of the Act.

THE EVIDENCE

[7] The following persons gave written and/or oral evidence in the proceeding:

• Mr Daniel Gouveia, the President of the Club;



• Mr Jack Santos, the Secretary of the Club;



• Mr Daniel Pereira, a member of the Club; and



• the applicant, Mr Jose Dinarte Figueira.

I note that the Club’s financial records for the years 2014 and 2015 were also tendered in evidence.

For the Club

Mr Daniel Gouveia

[8] Mr Gouveia has been involved with the Club as a Board member and employee for over thirty years. He was elected the Club’s President in September 2015. In written evidence, he explained that following his election as President, he met with Mr Manuel Batista (the Club’s Accountant), Mr Jack Santo (the Club’s Secretary) and Mr Antonio Nobrega (the Club’s Treasurer) to discuss the Club’s financial position. It emerged that the Club’s net loss for 2015 was $160,185 and $67,182 in 2014.

[9] Mr Gouveia said that after this meeting, he had a conversation Mr Figueira in terms similar to the following:

Mr Gouveia:	As you know, the Club’s Manager has left, would you be interested in the role?
Mr Figueira:	No, the members are too hard to deal with and I don’t want to be responsible for the licensing.

[10] Mr Gouveia said that at a meeting of the Board of Directors on 27 October 2015, the reasons for, and the options to remedy the Club’s poor financial situation were discussed, including having Mr Figueira work part time in the office and the bar. Mr Gouveia annexed minutes of this meeting to his witness statement. The poor financial state of the Club was attributable to fewer new members, reduced poker machine revenue and lower function revenue. At a further Board meeting on 2 November 2015, which Mr Figueira attended, the option of him working in the bar and the office was raised again. Mr Figueira was not happy with this arrangement. In addition, some members did not think it was appropriate, given that Mr Figueira would be paid the same wage and there would be no net cost savings.

[11] Mr Gouveia said that at a further meeting of the Board, it was decided that the role of Office Administrator would be made redundant and that Board members would perform the office duties on a voluntary basis. This would result in an estimated saving of $60,000 per year. The letter at para [3] above from Mr Capogreco, the Club’s solicitor, dated 12 November 2015, was provided to Mr Figueira.

[12] A further letter from Mr Santos, dated 13 November 2015 was forwarded to Mr Figueira and was expressed as follows:

‘We regret to inform you that we must terminate your employment with us as of 13 November 2015.

The Board have looked at the operations of the club to determine where costs may be saved in order to make the club more viable. We have made a decision to reduce our overheads in particular the club’s wages expense. As a result the Board regrets that your position has been made redundant.

We confirm that the club can redeploy you on a casual basis in the bar area as previously verbally discussed.

We have attached your termination payment calculations. We respectfully request you to sign a copy and return to the Board.

We are sorry that this course of action has been necessary and wish you all the best in your future employment [my emphasis].’

[13] It was Mr Gouveia’s evidence that Mr Figueira had rejected an offer to redeploy him to a part time position in the bar. Mr Gouveia accepted that the duties Mr Figueira had previously performed still existed, but the role of Office Administrator did not. No one had been employed to undertake the administration duties. The Club’s accountant now performed payroll duties. The Club’s chef had been replaced and a new chef was paid less. In oral evidence, Mr Gouveia confirmed that the Directors of the Club were performing the administrative functions since the termination of Mr Figueira’s employment. The Club now only employed seven employees, with only three full time.

[14] In cross examination conducted through an interpreter, Mr Gouveia agreed that his solicitor, Mr Capogreco, had drafted his witness statement. He had spoken to Mr Capogreco in Portuguese and Mr Capogreco had written it in English. Mr Gouveia confirmed he had sworn the statement before Mr Capogreco.

[15] Mr Gouveia said that he had met with Mr Batista about one week after being elected President in September 2015. He believed this meeting had taken place on a Sunday - maybe on 10 or 12 November 2015. He could not now recall the exact figures that the Club had lost in the previous two years. Mr Gouveia described the Club’s current position as ‘okay’. He said that he had opened the Club in 1988. Since then, he had done his best for the Portuguese community, through the Club. However, he was getting old and the Club did not bring in enough money.

[16] Mr Gouveia said that in the conversation he had with Mr Figueira in October 2015 (see para [9]) he had asked him if he was interested in the vacant Club Manager’s position. Mr Figueira had replied that he could take on that job, but not ‘the alcohol part’ (meaning he did not want the licensee’s responsibility). He could not recall Mr Figueira having said that he would take the role.

[17] Mr Gouveia claimed that a Mr Ferrao had taken the minutes of the Board meeting on 27 October 2015 by hand and typed them up later. He would sometimes compare the handwritten minutes with the typed copy, but not every time. He recalled discussion at the meeting about improving the restaurant, having more functions and opening the Club on Saturday and Sunday as possible options to improve the financial position of the Club. The Board had discussed changing Mr Figueira’s hours, and also the possibility of making both him and the cleaner redundant. While this was not recorded in the minutes, he believed it was noted in the diary at the Club.

[18] When asked whether the next Board meeting took place on 3 November or 2 November, Mr Gouveia could not recall the exact date. He could not recall what was said to Mr Figueira at this meeting. He believed that it may have been suggested that Mr Figueira work part time in the office and part time in the bar. Mr Gouveia had even proposed closing the Club’s doors. However, the Secretary, the Accountant and the Board of the Club had decided that the Club should stay open. The question of whether the role of Office Administrator should be made redundant was carried by a vote conducted by a show of hands. He acknowledged that this vote was not referred to in the minutes. He could not recall having input into the letters to Mr Figueira of 12 or 13 November 2015 or what terms and conditions the Club placed on offering him redeployment.

[19] Mr Gouveia claimed that he and Mr Santos were currently undertaking the Club’s administrative functions. He estimated that the assets of the Club were worth approximately $4 million. Mr Gouveia agreed that he had not provided any information to Mr Figueira about the Club’s financial circumstances. While Mr Gouveia believed that the Club needed renovations, he could not say how much it would cost.

[20] In re-examination, Mr Gouveia explained that the Club employed only three full time employees. The others are part time or casual.

[21] Mr Gouveia agreed that at a meeting on 6 November 2015, the Board had been advised that the Club’s expenses were too high and there was a risk of insolvency. He recalled it being said that the bar position could be offered to Mr Figueira, on the same salary. Mr Gouveia maintained that Mr Figueira’s termination was based solely on the Club’s difficult financial position. Mr Gouveia’s guess that the Club’s assets were worth $4 million was based largely on the property which the Club owned, and the Club’s plant and equipment (the financial records disclosed the total assets of the Club, including property, plant, equipment, furnishings and vehicles is approximately $6 million).

[22] Mr Gouveia was shown the minutes of the Board meeting on 27 October 2015 at which it had been agreed that the Club’s restaurant had had a good result due to the reduction in its wages’ bill. He also recalled it being said that the Club risked a provisional loss of $130,000 in twelve months, if no changes were made. Mr Gouveia could not recall, in the meeting on 2 November 2015, Mr Figueira responding in words to the effect of, ‘Shut up, you guys don’t understand anything about this. If you guys force me, I will call the Union’.

Mr Jack Santos

[23] Mr Santos has been a member of the Club for approximately six years and was elected Secretary of the Club on 27 September 2015, as a member of a new Board of Directors.

[24] Mr Santos said that shortly after his election, he and Mr Gouveia had met with Mr Manuel Batista, the Club’s Accountant and Mr Antonio Nobrega, the Club’s Treasurer, to discuss the Club’s financial position, about which he had not previously been aware. At this meeting they were advised that the Club had incurred a loss of $160,185 in the 2015 financial year and that the Club needed to curb its spending or face closure. As Mr Santos had wanted to familiarise himself with the Club’s operations, he had asked Mr Figueira on three separate occasions to provide a written schedule of the tasks he performed at the Club. Mr Figueira never did so.

[25] Mr Santos deposed that it ‘soon became apparent’ that the work performed by Mr Figueira could be performed over three or four hours per day. He believed this was because there were now fewer members of the Club. On or about 15 October 2015, he had informed Mr Figueira that the Board was considering having him work in the bar three days a week for four hours. Mr Figueira had replied that this would not leave him enough time to do his work in the office. As there was no final decision, he told Mr Figueira that the Club was still considering its options.

[26] Mr Santos said that the rostering implications of having Mr Figueira work both in the bar and the office were discussed at a Board meeting on 2 November 2015. Mr Figueira was called into the meeting and options relating to these issues were tabled. When the amount of work required in the office was raised, Mr Figueira had angrily responded in words to the effect of:

‘Shut up, you don’t understand anything about this, if you guys force me I’ll call the Union.’

[27] Mr Santos had observed that having Mr Figueira work both in the office and the bar would not assist in resolving the financial issues faced by the Club, as it would still be paying him the same wage. At a further Board meeting, a resolution was passed that Board members would perform the work of the office role on a voluntary basis and the office role be made redundant.

[28] Mr Santos expressly denied having told Mr Figueira on 6 November 2015 that he should not go to the bar on 9 November. He also denied telling him that the Directors were considering dismissing him and performing the office work themselves on a voluntary basis.

[29] In referring to the two letters provided to Mr Figueira dated 12 and 13 November 2015 respectively (see paras [3] and [12]), Mr Santos said that both letters were provided to Mr Figueira on 16 November 2015. Because these letters were provided to him later than they were dated, he had been paid a further week’s pay.

[30] Mr Santos claimed that Mr Figueira had refused the offer of part time employment in the bar. Since his termination of employment, members of the Board had been performing the office duties on a voluntary basis. Mr Batista does payroll duties. The Club was not planning to employ a secretary and had not replaced the Manager of the Club, who had resigned. However, he agreed the Club had subsequently employed a kitchen hand to wash dishes on weekends.

[31] In cross examination, Mr Santos could not recall the date on which he met with the Club’s Accountant and Treasurer after his election as Secretary. Nevertheless, he recalled it being said that the Club had incurred a loss of over $160,000. He understood the loss would have been greater, but for a tax credit.

[32] Mr Santos could not recall the dates on which he had asked Mr Figueira for a time schedule of his work. He had not recorded these dates. He went to Mr Figueira’s office ‘two or three times’ to seek a written schedule of his work, because the Board had not been aware of how work in the office was being performed. Mr Figueira had suggested he just tell him about how the administration work was performed, but he had wanted this information in writing.

[33] Mr Santos explained that he had come to the conclusion that Mr Figueira’s role could be performed on a part time basis on advice from Mr Batista. He believed the Club was not making enough money and unless some of the work was performed on a voluntary basis, the Club might be forced to close.

[34] When asked how he could remember he had spoken to Mr Figueira on 15 October 2015 (see para [25]), Mr Santos believed he may have written it down somewhere. He had also told Mr Figueira that redundancy was possible and that the Club needed to reduce its wages bill. Mr Santos acknowledged having forgotten to mention this in his written statement.

[35] Mr Santos had formed the view, on the basis of two or three short conversations with him, that Mr Figueira’s work could be performed within 25 hours per week. Mr Figueira had agreed to provide a written schedule of his work, but in the end they had just talked. Mr Figueira had outlined the secretarial duties, that he did the banking a couple of times a week and maintained the membership records.

[36] It was Mr Santos’ evidence that at the Board meeting of 2 November 2015 there was no discussion about changing Mr Figueira’s hours of work. He was invited to this meeting and the question of his working in the bar was mentioned. However, no real decision was made as to whether Mr Figueira would work a combined role in the office and in the bar. Mr Santos said that Mr Figueira had been rude to a Board member who had asked what work he would perform in the office. While Mr Figueira may have agreed to work in the bar, Mr Santos had never agreed, because it did not result in any savings for the Club.

[37] Mr Santos said that there had been a vote of the Board as to Mr Figueira’s redundancy. Some of the Board members had voted in favour of him working in the bar and the office, but he had voted for the redundancy. There had been separate and different votes on these points on both 2 and 6 November 2015. Mr Santos agreed that Mr Figueira had never been asked if he would consider reducing his wage and this had not been discussed by the Board.

[38] Mr Santos maintained that he had not told Mr Figueira on 6 November 2015 not to go to the bar on 9 November and/or that the Board was considering making him redundant. He had just passed on the request from the Board to meet with him, although he could not recall what time he had done so. The meeting took place at approximately 4:00pm that day.

[39] Mr Santos stated that another letter addressed to Mr Figueira dated 11 November 2015, was prepared by the Club’s solicitor at his direction. Mr Santos had first seen this document on 13 November when he picked it up from the solicitor’s office. He acknowledged that the letter referred to wages being ‘slashed’. However, this meant ‘reduced’. He initially said that the General Manager had also been dismissed, but acknowledged that he had resigned. He agreed he had sent another letter, dated 12 November 2015 (see para [3]). He could not say why the original document included the words, ‘We have made a decision to reduce our overheads’ and the second letter had said, ‘We have made a decision that overheads and wages would be slashed.’ He had given another letter to Mr Figueira on 16 or 18 November 2015.

[40] Mr Santos was asked about the reference in the second letter of 13 November 2015 to casual, rather than part time employment in the bar. While this had been discussed, the letter was not signed. Mr Santos’ position had always been Mr Figueira’s employment should be terminated to save money. Other changes included engaging a casual employee on $20 per hour for three or four hours to wash dishes and the floor in the kitchen. There was also a cleaner employed for two or three hours. A new Chef had been employed at a lower rate of pay.

[41] Mr Santos acknowledged that when Mr Figueira’s redundancy was being considered, he had not written to him directly. However, he had talked to him about the issues around the reasons for his redundancy. He conceded he had not provided him with any financial statements. They had talked about family and the keys of the Club. While he claimed he had discussed the possibility of redundancy with him a few times, he could not say why he had not referred to these other occasions in his witness statement.

[42] Mr Santos was asked to pinpoint the date on which the Board decided to make Mr Figueira redundant. He thought it was the second of two meetings. It was decided that the only way to stop the Club shutting its doors was to terminate his employment. There was no new Manager, as the role was now performed on a voluntary basis.

[43] In answer to a question from me, Mr Santos said that the Club had about 800 members. He had been a member for about six years. He had attended the meeting at which a new Board was elected because someone had asked for his help. The former Board had resigned in June 2015 because the Club was ‘dead’. In re-examination, Mr Santos clarified that in saying that the Club was ‘dead’, he meant that it had significant financial difficulties. He had only become aware of this in about September 2015. He noted that a Club member, Mr Pinto, had lent the Club about $70,000. Suppliers were owed about $100,000 and the Club had exhausted its loan facility from the bank.

[44] When he was shown the minutes of the Board meetings of 27 October and 2 and 6 November 2015, Mr Santos agreed the minutes reflected his recollections of those meetings.

For Mr Figueira

Mr Daniel Pereira

[45] Mr Pereira has been a member of the Club for over 30 years and frequently attends its premises. He was not required by the Club for cross examination.

[46] In his statement, Mr Pereira explained that Mr Figueira had asked him to sit in on a meeting on 18 November 2015. Also present were Mr Gouveia, Mr Santos and Mr Batista. The meeting discussed outstanding entitlements owed to Mr Figueira. Mr Figueira had asked Mr Gouveia whether he had advised the Directors that he had accepted the Club Manager’s position. When Mr Gouveia replied he had not, Mr Santos added words to the effect of, ‘We are not going to be replacing the manager’s position’.

[47] Mr Pereira stated that on 2 April 2016, he was surprised to see a sign on the billiard room wall in the Club, which contained the following words:

‘Directors and members – more respect between members, staff and directors is needed and soon we will have a new club manager.’

There was also a plan (dated November 2015) affixed to the wall in front of the members’ seating area setting out proposed renovations to the bar, restaurant and kitchen areas of the Club.

Mr Figueira

[48] In written evidence, Mr Figueira said that he had been employed by the Club as an Office Administrator from 29 September 2010 until 17 November 2015. His duties included invoice payments, membership and payroll duties. He also performed extra tasks like shopping, rostering, banking, engaging tradespersons and work health and safety duties. While he believed he had done more than what was required of him, he enjoyed his work. He had been a member of the Board when the Club had first opened.

[49] Mr Figueira denied that Mr Santos have ever asked him for a schedule of his tasks. Rather, Mr Santos had attended the office one day and said that he wanted to observe his work and he had done so.

[50] It was Mr Figueira’s evidence that on 15 October 2015, Mr Santos had told him that the Board considered that there was not enough work in the office and in order to save money, it was proposed that he work in the bar for four hours a day, three days a week. He had responded that this would only give him 25 hours to get his other work done, which was ‘not a lot of time’. Mr Santos had said that this should be enough time and said that ‘the Board have already made up their mind’. While he had told Mr Santos he would need training, he was still concerned about getting his office duties completed in the time. He asked when the new duties would start. Mr Santos said he would get back to him.

[51] Mr Figueira said that on the same day, the Club Manager gave notice of his resignation. Mr Gouveia had approached him the following day and asked if he would be interested in the role. He was unenthusiastic, as he found the Board difficult to work with. Nevertheless, he said he would think about it. He discussed it later that evening with his family. The following day he advised Mr Gouveia that he would take the role, ‘but only because you’re the Club President. You know how I feel about the Club and I want it to succeed.’ Mr Gouveia said he would inform the Board the following evening and that they would then talk, ending the conversation by saying, ‘let me know’. He waited to hear back from Mr Gouveia. Mr Figueira emphasised that he had never refused the General Manager’s role.

[52] Mr Figueira did not accept Mr Gouveia’s evidence as to the Board meeting on 27 October 2015. The only communication he received from the Board at that stage in relation to his role, was about changing his hours between the bar and the office. There was no real consultation; he was merely advised that the Board was communicating a decision it had already made. Nor was there any discussion as to redundancy or redeployment to part time employment. The phrase ‘part time’ was used in relation to the possibility of him working ‘partly’ in the office and ‘partly’ in the bar.

[53] Mr Figueira claimed that on 29 October 2015, Mr Gouveia approached him and said that after discussions with the Club’s Treasurer, it was proposed that he work in the bar four hours a day, five days a week. He had already raised concerns with Mr Santos when it was proposed that he work in the bar three days a week and he asked why it had been increased to five days. Mr Gouveia had replied that he did not understand what he was saying and said that they would talk further. There was no further discussion for the next week, although he noted that Mr Gouveia had approached him on 2 November to ‘talk about the hours’. He was interrupted and he asked Mr Figueira to wait. At 5:30pm, Mr Gouveia told him to attend a Board meeting the following afternoon.

[54] Mr Figueira deposed that when he attended the Board meeting on the afternoon of 3 November, Mr Santos informed him that the Board had decided that he would need to work four hours in the office and four hours in the bar. He reluctantly agreed, but observed that it would be difficult to do all of the office work, four hours in the bar, as well as doing the shopping and banking. Mr Santos had replied that he would have to make time. When he protested, Mr Santos said, ‘You need to do this’. He was concerned as to whether he would have enough hours in the office to perform his duties and frustrated that the proposed hours in the office and the bar kept changing. Mr Santos advised him that this arrangement was to start on 9 November 2015. Mr Figueira expressly denied that any other options were discussed by the Board. He was simply advised that the Board had resolved that he would work partly in the bar and partly in the office. He provided minutes of this meeting to support his version of events.

[55] Mr Figueira wrote to Mr Fernando Ferrao, the Vice Secretary of the Club on 4 and 6 November after seeking advice from his Union. He asked for a roster before the change was due to start. He received no response to either email. However, during a discussion on 6 November, Mr Santos had told him not to work in the bar on 9 November. When he asked what had changed, Mr Santos told him that the Board was considering dismissing him and having his work performed on a voluntary basis by the Board members. However no final decision had been made. He had been so shocked, that he did not respond.

[56] On 8 November 2015, Mr Figueira received a text message from Mr Ferrao advising of a new computer password. When he commenced work in the office on 9 November, he was unable to log in to the computer system, even with the new password. He unsuccessfully attempted to contact the Directors. At approximately 4:30pm, Mr Nobrega (the Club’s Accountant) told him that the Club had changed the banking system, so that payments could be undertaken at home. He asked why he had not been advised of the change, given he had payments to make. Mr Nobrega told him that it would be fixed soon and that he would advise him when this occurred.

[57] Mr Figueira said that on 9 November 2015, Mr Gouveia approached him while he was having coffee with friends in front of the Club. He asked Mr Figueira if his friend still owned a taxi van and whether he still had a taxi licence. When he replied that he did, Mr Gouveia said, ‘Oh, that’s good’ and walked away.

[58] On 10 November 2015, Mr Figueira had asked Mr Santos, in the presence of Mr Gouveia, about performing payments and payroll duties, without access to the system. Mr Santos told him it would be fixed shortly and went on to say:

‘Dinarte, we have made a decision and you will be dismissed from your position. We have decide [sic] that you role will be done voluntary by the Board. … We have got some casual work that we can offer you at 2 days at 7 hours a week in the bar, we also have a letter coming.’

He claimed that this was the first official advice he had received about his role. He was so shocked, he did not ask any questions. He denied that he had ever been offered part time employment, at the time. There was no mention of a finishing date.

[59] Mr Figueira attempted to run payroll on 11 November 2015, but was unable to do so. Mr Santos unsuccessfully attempted to get the system working that afternoon. Payroll was run two days late and because the accounts were set up incorrectly, all payments were then paid into a Director’s account, resulting in further delays. Staff were advised that payroll would be run from a Director’s home. Mr Figueira was embarrassed and annoyed when staff asked him about his job, as he could not answer them.

[60] Mr Figueira claimed that it was not until 16 November 2015 that he was issued with written advice of his termination from the Club, when Mr Santos called him into his office and handed him the letter dated 12 November 2015 (see para [3]) and he did not understand the letter properly. Mr Santos did not explain the contents of the letter. Mr Figueira did not say anything to Mr Santos as he was disappointed, annoyed and upset. He also said that the reference to a ‘previously verbally discussed’ offer of casual employment in the bar was untrue. As a casual, he would not accrue personal or annual leave and could be employed on an ‘ad hoc’ basis. Mr Figueira claimed that two of the Club’s suppliers he spoke to on 17 November told him that they had been made aware of his dismissal a couple of weeks earlier. He believed he should have been offered further support or additional meetings.

[61] Mr Figueira described this experience, together with the manner of his dismissal and being locked out of the Club’s systems, as unfair, embarrassing, humiliating and unjust, especially given his 30 year connection to the Club as one of its founders. He did not accept that there had been any genuine redeployment offers or consultation. He was told that the casual employment, previously offered to him, had been taken up by someone else who had been employed the week before. The Board had not offered him a witness/support person in the relevant meetings and had never sought to confirm if he understood what was being put to him.

[62] Mr Figueira said that as he was not paid his entitlements on the due date, he had to chase it up with Mr Santos. He was then paid in cash. He handed over the keys and petty cash to Mr Batista, Mr Gouveia and Mr Santos. He asked them why others had been advised of his termination before he knew about it. Mr Santos expressed surprise, but Mr Gouveia did not reply. He then asked Mr Gouveia if he had told the Board that he had agreed to accept the Manager’s role. Mr Gouveia said he had not and Mr Santos said that the Board had decided not to employ another Manager. Mr Santos gave him another letter dated 13 November 2015 (see para [12]), but the date of this meeting was actually 18 November 2015. Mr Pereira had attended this meeting with him. He asked to be paid in cash for the extra two days he had worked and he was paid on 20 November 2015. He had not been paid an additional week’s pay to compensate for the lack of proper communication, as had been stated by Mr Santos.

[63] Mr Figueira claimed that the Club continued to employ new staff. It was not possible that the administrative work was no longer required. He understood that a waitress now checks the security cameras and the accountant runs payroll. The Club had set up its payroll and supplier payments to run from a Director’s home. Accordingly, he did not accept that the duties of his job were being performed voluntarily.

[64] Mr Figueira understood that the Board was intending to employ a secretary who would perform the duties of his own role. He believed that this person would be paid ‘off the books’. He maintained that the Club continued to employ seven staff. He named four employees who commenced after his redundancy and the Cook who replaced the Club’s Chef. He stated that when he attended the Club on 2 April 2016, there was a handwritten note on the billiard room wall, which read, ‘Directors and members please have some consideration and respect of one another soon we will have a new manager.’

[65] Mr Figueira denied having ever refused offers of alternative employment or extra duties. He had not signed a deed of release in this matter. He is 61 years old and is supporting his wife, who has recently undergone major surgery.

[66] In cross examination, Mr Figueira said that he had not had assistance in preparing his statement. He had discussed its contents with his daughter and she had typed it out. He conceded that he did not know the meaning of the words, ‘ad hoc’, which appeared in his statement.

[67] Mr Figueira agreed that he had always performed the role of Office Administrator alone and that membership had declined from the 2014 to the 2015 financial years.

[68] Mr Figueira could not recall if Mr Santos had spoken to him on 15 October 2015 about the Club considering options to save money. About a week later, Mr Santos had raised the prospect of him working in the bar. He had responded that this would not leave him enough time to perform the office duties. He did not accept that this constituted a discussion of other employment opportunities for him within the Club. It was a two or three minute discussion and no start date was mentioned. Mr Santos had not told him that the Club was considering making him redundant. He initially accepted that Mr Santos had not said, ‘The Board have already made up their mind’ on 15 October 2015, but later insisted that it was said to him.

[69] Mr Figueira’s evidence now was that he initially said ‘no’ to Mr Gouveia on the day he had asked whether he would be interested in the General Manager’s position. He had discussed it with his family that night. He approached Mr Gouveia later that night in the Club and advised him he would accept the position. Mr Gouveia said he would discuss it with the Board members. While he had had reservations about accepting licensing responsibility, he accepted the offer nevertheless. He considered that Mr Gouveia had made a formal offer to him, although there was no discussion about pay or hours of work.

[70] Mr Figueira acknowledged that as he had not attended the meeting of 27 October 2015, he could not attest to what had been said at that meeting. He maintained that a Board meeting took place on 3 November, not 2 November and said he remembered this because he had contacted a Union Organiser on 4 November, who advised him to ask for the roster. The Board has asked if he could work a few hours in the bar. They did not believe there was a need for someone to be in the office full time. He had been upset, because he was being bombarded with questions by the Directors. He admitted he had said, ‘Shut up, you don’t understand anything about this. If you guys force me I’ll call the Union.’ He was frustrated with one of the Directors in particular, as he believed him to be ignorant about his role. This Director had a criminal record and had previously caused trouble in the Club, including damaging property. He insisted that he had agreed to the reduction of his office administration hours.

[71] Mr Figueira denied there were any options discussed at the Board meeting on 2 or 3 November. It was simply proposed that he would work part time in the bar and part time in the office and he had agreed to this proposal. This was why he had written to the Vice Secretary the following day seeking a roster. He accepted that the Board had discussed his lunch break arrangements, ‘if this option were to proceed’. However, he understood that he had no alternative but to accept this proposal, as the Board had already made up its mind and it was agreed he would start on 9 November 2015.

[72] Mr Figueira was questioned about the reference in his statement to Mr Gouveia having requested that he work five days in the bar on 29 October 2015. He had not discussed this ‘for a day or a week’. Mr Gouveia had not come back to him to discuss the issue. Rather, he had directed him to attend the Board meeting on 3 November. In any event, he would not have accepted casual work, because it was two days a week totalling seven hours.

[73] Mr Figueira did not believe that an award of compensation would place a significant financial burden on the Club as he believed it was ‘operating okay at the moment’. The Club employed seven people, including during periods which attracted penalty rates. He conceded he did not have any direct knowledge of the Club’s finances, since his employment was terminated. However, he had observed the operations of the Club by his frequent attendances on the premises. He did not believe that the people performing administration duties were working on a voluntary basis. He had seen the people working there and believed four more employees had been employed after he had left.

[74] In answer to a question from me, Mr Figueira said that he knew that certain people were working for the Club ‘on the books’ because they had been paid by the Club when he worked there. He assumed they were still ‘on the books’.

[75] In re-examination, Mr Figueira clarified that the only option put to him in the meeting on 3 November 2015 was that he work four hours in the bar and four hours in the office, five days a week, commencing on 9 November, 2015.

SUBMISSIONS

For the Club

[76] In written submissions, Mr Capogreco, said that the Club is an incorporated body under the Corporations Act 2001, which employs four employees. Mr Figueira was employed by the Club as the Office Administrator until that role was made redundant on 17 November 2015.

[77] Mr Capogreco submitted that Mr Figueira’s dismissal was a case of ‘genuine redundancy’, within the meaning of ss 385 and 389 of the Act. The Club had undertaken a number of cost saving measures to address its difficult financial circumstances; one of which being the redundancy of the Office Administrator. This measure saved the Club $61,225.24p.a.

[78] Mr Capogreco contended that the Club no longer required Mr Figueira’s job to be performed by anyone. The duties of the Office Administrator were being performed on a voluntary basis by members of the Board and the Club’s accountant was performing payroll duties. While Mr Figueira’s duties had been redistributed, it did not follow that the job previously performed by him still existed; See: Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt [2010] FWA 674. The reference to the employer not requiring ‘the person’s job to be performed by anyone’, within the meaning of s 389(1)(a), should be read as meaning ‘anyone employed by the employer’; See: Suridge v Boral Windows Systems Pty Ltd T/A Dowell Windows [2012] FWA 3126.

[79] Mr Capogreco put that the Club had complied with its obligations to consult with Mr Figueira through the conversations between him, Mr Gouveia and Mr Santos (s 389(1)(b)). Mr Figueira had refused an offer by the Club that he be redeployed in the bar (s 389(2)).

[80] In the alternative, Mr Capogreco submitted that if the Commission was not satisfied that the Club had complied with its obligation to consult with Mr Figueira, it should find that proper consultation, if it had taken place, would have resulted in the same outcome and the Commission would not find that the dismissal was unfair; See: Maswan v Escada Textilvertrieb T/A ESCADA[2011] FWA 4239 (‘Maswan’).

[81] Mr Capogreco addressed the criteria for determining whether a dismissal was ‘harsh, unjust or unreasonable’. The Club was facing liquidation. Had this eventuated all of the Club’s employees would have been made redundant. This was a valid reason for Mr Figueira’s dismissal (s 387(a)). He was made aware of the reasons for his dismissal in the letter dated 12 November 2015 (s 387(b)). Mr Capogreco claimed that Mr Figueira had not requested a meeting after being notified of his impending redundancy and had not requested a support person (s 387(d)). Mr Capogreco said that the Commission should take into account the fact that the Club employed four employees and had seven Board members, most of whom spoke English as a second language and had limited understanding of employment law (s 387(f)). The Club did not have access to specialist human resources experts (s 387(g)).

[82] In oral submissions, Mr Kaufmann explained that the Club had made an $67,000 loss in the 2014 financial year and a further $160,000 loss in the 2015 financial year. The Board had resolved that Mr Figueira’s role should be performed on a voluntary basis, by the Directors. They were not paid by the Club. This fact was not seriously challenged by Mr Figueira. The Club had considered what action to take and, having considered that the bar, restaurant and gaming operations generated income, while the administrative operations did not, took appropriate remedial action.

[83] Mr Kaufmann submitted that the Club had made a definite decision to reorganise its workforce at the time of the meeting held on 2 November 2015 and appropriate consultation took place almost immediately after this date. The relevant consultation clause was to be found at cl 8.1 of the Registered and Licensed Clubs Award 2010 [MA000058]. The level of consultation was what could be expected in a small Club run by largely non-English speaking Directors, with few employees; although Mr Kaufmann maintained that the process was consistent with cl 8.1(b) of the Award. When it was suggested on 2 November 2015 that Mr Figueira work some hours in the bar, his response had been, ‘Shut up, no, you don’t understand.’ Concerns raised by him had been considered by the Board, notwithstanding that he refused to properly engage with the Board.

[84] Mr Kaufmann conceded that the Club had not complied with its obligation under cl 8.1(b)(iii) to provide relevant information about the changes to Mr Figueira, in writing. He distinguished Cameron v Transfield Services Australia Pty Ltd[2012] FWA 3799 (‘Cameron v Transfield’) at paras [60]-[63] on the basis that the respondent in that case was a very large, well-resourced organisation. Mr Kaufmann also submitted that there was no requirement to put this information, in writing, in circumstances where the Directors were not fluent in English. The purpose of providing advice, in writing, was to assist discussion and provide relevant information. In this case, Mr Figueira was provided with the relevant information concerning the financial difficulties of the Club and the proposed restructure. However, Mr Figueira would not engage in proper discussions with the Club.

[85] In answer to a question from me, Mr Kaufmann acknowledged that the Club had not consulted with Mr Figueira’s Union. In any event, Mr Figueira had not sought to arrange a meeting between the Club and the Union.

For Mr Figueira

[86] In written submissions, Mr Duc said that the Club’s jurisdictional objection that Mr Figueira’s dismissal was a case of ‘genuine redundancy’, should be dismissed. In setting out Mr Figueira’s evidence, he submitted that options were open to the Club, other than his redundancy.

[87] Mr Duc put that Mr Gouveia and Mr Santos were not credible witnesses and their evidence should be given little weight. Both of them had acknowledged not writing their own statements and had demonstrated limited knowledge of what was in them. In particular, Mr Santos could not answer questions about the preparation of a letter signed by him. He had produced a letter identical to that dated 12 November 2015, except it was dated 11 November 2015. Mr Pereira’s evidence supported a finding that the second letter was given to Mr Figueira on 18 November 2015. There was no satisfactory explanation as to why this was so; why this letter was only given to him on 13 November, or why the letter dated 13 November, was given to him on 18 November 2015.

[88] Mr Duc submitted that the Club still required Mr Figueira’s job to be performed. While it was said that the Board members performed the work, the Club had provided no specific evidence as to the nature of the work being performed by them. The job of Office Administrator still needed to be carried out and it was not open to the Club to split the job up between other employees.

[89] Mr Duc claimed that there was insufficient evidence of the Club’s operational requirements which led to a conclusion that the job was no longer required. Mr Santos had not provided costings, or other material, as a basis for his view that the redundancy of the Office Administrator role would save $60,000. Mr Gouveia had said he would consider improving the restaurant and changing opening hours. Mere statements that the Club was ‘dying’ would not ground such a finding either. Neither Mr Gouveia or Mr Santos had referred to the financial statements adduced by the Club in their evidence.

[90] In any event, Mr Duc said that the redundancy of Mr Figueira’s role was not necessary to pursue the Club’s objectives, as there was another solution – that he work partly in the bar; See: Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370; [1996] IRCA 282.

[91] Mr Duc put that the ‘perfunctory’ consultation process of the Club had not complied with the relevant consultation provisions under cl 8 of the Award. Not only did this mean that Mr Figueira’s dismissal was not a ‘genuine redundancy’, it was also relevant to a finding that Mr Figueira’s dismissal was ‘harsh, unjust or unreasonable’, within the meaning of the Act (see s 387(h)). Mr Figueira’s evidence as to consultation should be preferred as the Club’s witnesses were vague as to what was said and when. Mr Figueira had agreed to a change in his role on 2 November, but he was then simply informed on 6 November that the Board was considering making his role redundant. In these circumstances, it could not be said that genuine consultation was undertaken. In any event, the Club had not complied with the requirements to notify him of the change, in writing.

[92] Mr Duc asserted that meaningful, bona fide consultation would have made a material difference to the outcome of this matter. The evidence demonstrated a split on the Board as to what should occur in relation to Mr Figueira’s role.

[93] Mr Duc said that the Club could have redeployed Mr Figueira as Club Manager, or to a split Office Administrator/Bar role or to a job working in the bar. It had changed its mind on these options a number of times. Mr Santos’ evidence that an offer was made to redeploy him in a part time bar role should be rejected.

[94] Mr Duc turned to the question of whether Mr Figueira’s dismissal was ‘harsh, unjust or unreasonable’ within the meaning of s 387 of the Act. He put that there was no sound, defensible basis for his dismissal (s 387(a)). He was not notified of the reason for the termination of his employment – rather, he was offered a number of roles (s 387(b)). Mr Figueira was not offered a support person. Given that he had not been aware that his employment was to be terminated, he was likely to have needed a support person (s 387(d)). Other factors the Commission should take into account included Mr Figueira being from a non-English speaking background, his five years of service, his work as a carer for his ill wife and his humiliation and exclusion from his main point of social contact with the community.

[95] Mr Duc submitted that in this case, reinstatement was inappropriate. Mr Figueira sought compensation for his dismissal.

[96] In oral submissions, Mr Duc acknowledged that while the Directors and other staff at the Club spoke English as a second language, the Club engaged a solicitor, who had drafted the termination letter.

[97] Mr Duc observed that the word ‘redundancy’ does not appear in the minutes of the meeting on 2 November 2015. He did not accept that this was the date on which a definite decision was made by the Board. Rather, the decision occurred on 6 November. This was evidenced by Mr Figueira emailing the Club on 4 and 6 November seeking a revised roster for his changed role. Mr Figueira had not contacted his Union about redundancy at this time, because he was not aware that it was an option.

[98] Mr Duc said that the letter dated 13 November 2015 was ‘far more conciliatory’ than the one dated 12 November. There was no adequate explanation as to who prepared the correspondence and why Mr Gouveia had a letter dated 11 November (in the same terms as that of 12 November). In the earlier letter, there is reference to ‘slashing’ wages and overheads, but the only thing that was ‘slashed’ was Mr Figueira’s role. Given that there were other options available, his redundancy did not arise due to operational requirements. It was purely a decision of the Board.

[99] Mr Duc claimed that there was no consultation with Mr Figueira, because the evidence demonstrated that the decision was made on 6 November, and it was impossible for consultation, meaningful or otherwise, to have occurred. It was possible that Mr Figueira may still have a job today if proper consultation had occurred.

[100] In relation to redeployment, Mr Duc did not accept that Mr Figueira having said, ‘Shut up, you don’t know what you’re talking about’ was a rejection of a redeployment option. The minutes of the meeting produced by the Club revealed that Mr Figueira had agreed to take on the change in his hours. Mr Figueira had said that he would consider a part time role in the bar, but not the casual position mentioned in the letters. Mr Duc put that there was, in fact, no offer of part time work in the bar and this was a more recent invention on the part of the Club.

[101] In reply, Mr Kaufmann observed that the minutes of the meeting of 2 November 2015 record that, ‘In the opinion of all present, there is no need for a full time person in the office due to low level of work required.’ This is when a definite decision to restructure the job was made. It was not correct to say that the decision was made on 6 November. Mr Kaufmann submitted that there was no need for the Club to use the word ‘redundancy’ in its discussions with Mr Figueira, because everyone understood what was being proposed, including Mr Figueira.

[102] Mr Kaufmann suggested that there was doubt as to who had drafted Mr Figueira’s written evidence. However, he had not taken an issue as to credit (as Mr Duc had with Mr Gouveia and Mr Santos). Both parties’ witnesses spoke limited English and both parties had difficulty recalling events of many months ago. In any event, Mr Figueira had accepted that some of the conversations recorded in his statement were either incorrect or incomplete.

[103] Mr Kaufmann said that Mr Figueira could not have been redeployed into the Club Manager’s role as it had not refilled this position. The prospect of redeploying him to the split office/bar role was put to him in the meeting of 2 November 2015, but he was unwilling to engage in any discussion on the matter. He had refused to countenance casual work offered to him in the bar. In these circumstances, he could not be reasonably redeployed to anything.

CONSIDERATION

Relevant statutory and Award provisions

[104] Section 385 of the Act defines an unfair dismissal as follows:

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.

[105] Section 396 of the Act sets out a number of matters that the Commission must determine prior to considering the merits of an application for a remedy for unfair dismissal. As will be evident, ss 396(c) and (d) sit in harmony with ss 385(c) and (d) of the Act. It is as expressed as follows:

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.

[106] The following findings were not disputed:

(a) Mr Figueira was a national system employee and the Club is a national system employer, as defined (ss 13, 14);
(b) Mr Figueira was dismissed by the Club on 17 November 2015 (s 385(a)) and his application for an unfair dismissal remedy was filed on 3 December 2015. Mr Figueira’s unfair dismissal application was lodged within the 21 day statutory time period set out in s 394(2)(a); and
(c) Mr Figueira was a person protected from unfair dismissal (s 382) in that:

(i) the Club is a Small Business Employer, as defined and he had completed the minimum employment period of 12 months (s 383);
(ii) Mr Figueira was covered by the Registered and Licensed Clubs Award 2010 (s 382(b)(i)).

[107] Importantly, the definition of ‘genuine redundancy’, is set out in s 389 of the Act 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.

[108] Pursuant to s 389(1)(b), the relevant provisions of the Award dealing with consultation are found at cl 8 and are set out as follows:

8. Consultation

8.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.

[109] The meaning of the word ‘consult’, was considered by the Full Bench in Consultation Clause in Modern Awards [2013] FWCFB 10165 (‘Consultation Clause in Modern Awards’). At paras [30]-[33], the Full Bench said:

‘[30] The word ‘consult’ means more than the mere exchange of information. As Young J said in Dixon v Roy :

“The word ‘consult’ means more than one party telling another party what it is that he or she is going to do. The word involves at the very least the giving of information by one party, the response to that information by the other party, and the consideration by the first party of that response.” [citations omitted]

[31] The right to be consulted is a substantive right, it is not to be treated perfunctorily or as a mere formality. Inherent in the obligation to consult is the requirement to provide a genuine opportunity for the affected party to express a view about a proposed change in order to seek to persuade the decision maker to adopt a different course of action. As Logan J observed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (QR):

“... A key element of that content [of an obligation to consult] is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.

To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that ?”. Only in the latter case is there “consultation. ...”

[32] We respectfully adopt his Honour’s observations. Similar to the obligation to accord a person procedural fairness, the precise content of an obligation to consult will depend on the context. The extent and significance of a proposed change, in terms of its impact on the affected employees, will have a bearing on the extent of the opportunity to be provided. Hence a change of limited duration to meet unexpected circumstances may mean that the opportunity for affected employees to express their views may be more limited than would be the case in circumstances where the proposed change is significant and permanent. It is also relevant to note that while the right to be consulted is a substantive right, it does not confer a power of veto. Consultation does not amount to joint decision making.

[33] Some of the ordinary incidents of a requirement to consult are reflected in s.145A(2), that is:

• to provide information about the change; and

• to provide an opportunity for affected employees to give their views about the impact of the change; and

• to consider any views about the impact of the change that are given by the employees [footnotes omitted].’

[110] In Maswan, Watson VP held at para [39]:

‘[39] In my view a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in the procedure such that renders the termination unfair in the circumstances. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation had occurred.’

Meaning of redundancy

[111] As mentioned earlier, s 389 of the Act expressly defines ‘genuine redundancy’ (see para [109] above). The Explanatory Memorandum to the Fair Work Bill 2008 explained the meaning of ‘genuine redundancy’ as follows:

Clause 389 – Meaning of genuine redundancy

1546.            This clause sets out what will and will not constitute a genuine redundancy.  If a dismissal is a genuine redundancy it will not be an unfair dismissal.

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.

1549.            It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise. 

1550.            Paragraph 389(1)(b) provides that it will not be case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy.  This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy. 

1551.            Subclause 389(2) provides 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 employer’s enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).

1552.            There may be many reasons why it would not be reasonable for a person to be redeployed.  For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience. 

1553.            Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy.  However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.

[112] The meaning of the term ‘redundancy’ may vary, depending on the particular industrial context and/or the text of an applicable industrial instrument. In Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10, Gleeson CJ and McHugh J [12] held that:

‘In the industrial context, redundancy of position is not a concept of clearly defined and inflexible meaning.’

[113] More recently, a Full Bench of this Commission in Construction, Forestry, Mining and Energy Union and others v Spotless Facility Services Pty Ltd[2015] FWCFB 1162 said at para [66]:

‘[66] The meaning of the word ‘redundancy’ is not fixed and the term will take colour from its context. However, in any relevant context it is the abolition of a position which leads to that position being redundant. The cause of the abolition of the position – whether business restructure, technological advance, loss of contract/ordinary turnover or otherwise – is a separate matter, albeit one which may determine the entitlements of the redundant employee.

[114] Further, in Hodgson v Amcor Ltd; Amcor Ltd & Ors v Barnes & Ors [2012] VSC 94, Vickery J (‘Hodgson v Amcor’), after summarising the various authorities, arrived at the following conclusions:

‘In essence, subject to any qualification or re-statement found in the relevant contract of employment or any applicable statute, the common law concept of “redundancy” comes down to the following propositions:

(a) A job becomes redundant when the job of the employee ceases to exist because the employer, for whatever reason, whether by reason of reorganisation, mechanization, change in demand or other reason, no longer desires to have it performed by anyone;

(b) This can occur either when the role no longer exists or the duties have so changed that for all practical purposes the original role no longer exists;

(c) However, redundancy is not limited to the circumstance where the employer, no longer desires to have the work previously performed by the terminated employee done by anyone;

(d) A redundancy may also arise upon the redistribution of job functions, where the duties performed by an employee are redistributed among other employees.In this case the employer still requires the duties to be performed, but the re-organisation may give rise to a redundancy. In this event, although the duties remain to be performed, “for all practical purposes the original role no longer exists” because the duties are divided and assigned amongst others. In such a case the question is whether any function or duty remains to be performed by the employee. A redundancy will occur if, after the reorganisation, the employee in question is left with no duties to discharge;and

(e) Redundancy will not arise where the termination of employment is carried out solely because of any personal act or default of the employee terminated or for any consideration peculiar to that employee [endnotes omitted, emphasis added].’

[115] In Ulan Coal Mines Limited v John Howarth and others[2010] FWAFB 3488 (‘Ulan Coal v Howarth’), a Full Bench of the Commission held at paras [19]-[20] that:

‘[19] In the present case, the Commissioner appears not to have drawn an appropriate distinction in his reasoning between the “jobs” of the mineworkers who were retrenched and the functions performed by those mineworkers or take proper account of the nature of the restructure at the mine which led to an overall reduction in the size of the non-trades mineworker workforce. The Company restructured its operations in various ways including by outsourcing certain specialised, ancillary and other work and increasing the proportion of trade-qualified mineworkers in underground development and outbye crews. As a result, it was identified that there were 14 non-trades mineworker positions which were surplus to the Company’s requirements. The mineworkers whose employment was to be terminated were determined according to the seniority principle as provided in the Agreement. This did not mean that the functions or duties previously performed by the retrenched mineworkers were no longer required to be performed. It also did not mean that the positions of some of these mineworkers (e.g. in underground crews) did not continue, although those positions might after the restructure be filled by more senior non-trades mineworkers transferred from other parts of the operations or by trade-qualified mineworkers. However fewer non-trades mineworker jobs were required overall at the mine as a result of the operational changes introduced and, for this reason, the jobs of the 14 mineworkers selected for retrenchment could be said to no longer exist.

[20] These circumstances readily fit within the ordinary meaning and customary usage of the expression in s.389(1)(a) of the Act where a job is no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise [my emphasis].’

[116] The Full Bench in Ulan Coal v Howarth, after considering relevant authority and the Explanatory Memorandum to the Fair Work Bill 2008, concluded that:

‘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 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 (at 308):

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 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 [my emphasis].’ 

[117] In Dibb v Commissioner of Taxation (2004) 136 FCR 388; [2004] FCAFC 126 (‘Dibb’) referred to above the Federal Court said at 404-405:

‘43. The difficulty in this case has been caused by the aphorism which appears in both paras 12 and 42 of TD 94/12 to the effect that the job, not the employee, becomes redundant. However s 27F speaks of the “bona fide redundancy of the taxpayer”. We consider that it is more accurate to say that an employee becomes redundant when his or her job (described by reference to the duties attached to it) is no longer to be performed by any employee of the employer, though this may not be the only circumstance where it could be said that the employee becomes redundant. Reallocation of duties within an organisation will often lead the employer to consider whether an employee, previously employed to perform specific functions assigned to a particular “job”, will be able to perform any available “job” existing after such reallocation. Even if the employee’s job, defined by reference to its duties, has disappeared, he or she may be able to perform some other available job to the satisfaction of the employer. In that case, no question of redundancy arises. It is only if the employer considers that there is no available job for which the employee is suited, and that he or she must therefore be dismissed, that the question of redundancy arises. If, in good faith, the employer:

• has reallocated duties;
• considers that the employee is not suitable to perform any available job, defined by reference to those reallocated duties, existing after the re-allocation; and
• for that reason, dismisses the employee,

then, for the purposes of s 27F, the employee is dismissed by reason of his or her bona fide redundancy. In the above discussion we have used the word “available” as meaning “vacant”, and the word “suitable” as meaning “within the employee’s capacity”.

44. In the present case, the employer redistributed the duties previously performed by its District Managers and at the same time, added further duties. The job, described by reference to its duties as previously performed by Mr Dibb, ceased to exist. The employer no longer wished to have that job performed by anybody. The work was to be differently distributed. The result was that there was no job for which his skills qualified him. He was “surplus to [AVCO’s] personnel needs”. We consider that the respondent was in error in concluding that Mr Dibb’s dismissal was not by reason of his bona fide redundancy. As a result, the respondent also erred in failing to address the matters prescribed by s 27F. These errors have inevitably deprived Mr Dibb of the benefit conferred by Subdiv AA upon a person receiving a bona fide redundancy payment as part of an ETP.’

[118] A consistent theme that emerges from the above extracts is the employer’s prerogative to rearrange the structure of its business by breaking up the functions, duties and responsibilities of a single position and distributing them among the holders of other positions, including newly created ones. In these examples, the work required to be performed does not change, but the means by which the work is organised does change. While it was unusual in this case that the work of Mr Figueira was said to be performed by the Board members on a voluntary basis, I do not think that this changes the essential characteristics of a redundancy as reflected in the above authorities.

[119] As I do not understand there to be any associated entity of the Club to which Mr Figueira could have been redeployed, the focus then is whether there were any alternative positions available at the Club to which Mr Figueira could have been redeployed and whether Mr Figueira unreasonably refused to accept redeployment.

[120] In Ulan Coal Mines Limited v Honeysett and others[2010] FWAFB 7578 the Full Bench set out the obligations on an employer in regard to the redeployment under s389(2)(b). At para 27, 28 and 34 the Bench said:

[27] Secondly, it is implicit in the terms of s.389(2)(b) that it might be reasonable for an employee dismissed by one employer to be redeployed within the establishment of another employer which is an entity associated with the first employer. It follows that an employer cannot succeed in a submission that redeployment would not have been reasonable merely because it would have involved redeployment to an associated entity. Whether such redeployment would have been reasonable will depend on the circumstances. The degree of managerial integration between the different entities is likely to be a relevant consideration.

[28] Thirdly, the question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. 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.

[34] It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.

[121] In Technical and Further Education Commission T/A TAFE NSW v Pykett[2014] FWCFB 714, a Full Bench of the Commission held:

‘[36] We have earlier set out the submissions of the appellant and the respondent as to the proper construction of s.389(2) (see paragraphs [15] to [18] above). We accept the respondent’s submissions. For the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding. Such an interpretation is consistent with the ordinary and natural meaning of the words in the subsection; the Explanatory Memorandum and Full Bench authority. We acknowledge that the facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee. If an employer wishes to rely on the ‘genuine redundancy’ exclusion then it would ordinarily be expected to adduce evidence as to the following matters:

(i) that the employer no longer required the dismissed employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;

(ii) whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and

(iii) whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employer.’

State of the Evidence

[122] Unfortunately, this case had a messy evidentiary foundation. It was difficult for the Commission to resolve many areas of confusing and conflicting evidence, particularly that of Mr Gouveia and Mr Figueira. Aspects of both parties’ cases were perplexing. Regrettably, I am not entirely convinced that the evidence of Mr Gouveia and Mr Figueira was their own words or that they realistically comprehended what they had attested to. Given the evidentiary deficiencies in both parties’ cases, it was just as well that they were represented by competent practitioners. This case demonstrates, yet again, that the representation of parties by legal practitioners, even when the issues may not be apparently complex, will invariably assist the Commission in an efficient proceeding which focuses on the relevant issues to be determined by the Commission; See: Applicant v Respondent[2014] FWC 2860.

[123] Mr Gouveia’s oral evidence was ‘all over the place’. Notwithstanding the services of an interpreter, he appeared bemused and unfocused in the witness box. He appeared to have difficulty understanding what he was being asked, which resulted in most of his evidence being disjointed and unresponsive. Most answers he gave were unconnected to the question. He seemed more determined to make statements, rather than answering questions directly.

[124] I found it odd that the Club’s solicitor wrote to Mr Figueira on the 12 November advising him that his position was redundant effective 16 November 2015. Yet the very next day, Mr Santos wrote to him advising that his redundancy was effective 13 November and confirming the Club’s offer of casual work in the bar. At best, these two communications were sending mixed messages. Then there appeared to be third letter, dated 11 November 2015 from the solicitor, which was different in wording from the letter of 12 November. I could not quite get to the bottom of why Mr Figueira’s dismissal was handled in this clumsy way.

[125] Mr Duc invited the Commission to make adverse credit findings against Mr Gouveia and Mr Santos. Unfortunately, I did not find Mr Figueira’s evidence to be any better. He conceded that some of the conversations recorded in his statement were incorrect or incomplete. For example, he didn’t know what ‘ad hoc’ meant, yet it appeared in his statement. Nevertheless, while the evidentiary cases of both sides were less than satisfactory, I stress I do not consider there to have been a deliberate attempt by any of the witnesses to be untruthful or to mislead the Commission.

[126] While Mr Gouveia was confused about the dates of Board meetings and what was discussed at them, I do not consider that his evidence undermined the general thrust of the Club’s case. Most of the examples of conflicting evidence between Mr Figueira and Mr Gouveia and Mr Santos were about dates, times or who said what and when. However, these conflicts in evidence do not detract from the fundamentally relevant elements of this case. It may also be reflective of the unsophistication of the process of notification and consultation with Mr Figueira over the Club’s financial circumstances and its impact on him. In my view, all of the witnesses were so keen to demonstrate their respective positions, in an unfamiliar court environment, that they stumbled over their evidence and created a confusing evidentiary case which was difficult to disentangle. But as I have said, if I set aside irrelevant point scoring over evidentiary conflicts, it is still possible to determine this matter on the fundamental underpinning facts and circumstances.

Was Mr Figueira’s job no longer required to be performed by anyone?

[127] There can be no doubt the Club was undergoing difficult financial circumstances in 2014 and in 2015. There was no serious attempt by Mr Duc to challenge the Club’s evidence that these circumstances arose from:

a) falling Club membership;
b) reduced income from poker machine usage and less functions booked at the Club; and
c) losses incurred by the Club of $67,182 in 2014 and $160,185 in 2015.

Given this harsh reality, including the possibility of the Club closing its doors, it was hardly surprising that a new Board of Directors elected in September 2015, was very much focussed on cost saving measures. The resignation of the General Manager was a convenient opportunity to review the administrative functions performed by the Office Administrator, Mr Figueira.

[128] It seems a matter of simple logic that falling membership, reduced poker machine income and fewer functions would result in less time needed to perform the duties of the Office Administrator. This was certainly the view of Mr Santos. While expressing some misgivings about the correct balance between bar and office work, Mr Figueira himself must have accepted this reality, as he had discussions about the dual role.

[129] Unsurprisingly, Mr Duc was critical of the Club for not providing any document or financial records to demonstrate the imperative of making Mr Figueira’s position redundant. However, in my view, it is reasonable to assume that Mr Figueira would have been better placed than most (other than perhaps to the General Manager) to observe and appreciate the deterioration in the Club’s financial position, particularly as Mr Figueira spent a considerable amount of time at the Club as both employee and member. Moreover, Mr Figueira’s own evidence was that he knew what was going on in the Club, who was doing what and what was required. He even questioned the judgement of the Board members, particularly Mr Santos, to assess what he did and how long it took him to perform his administrative tasks. I accept that Mr Santos had requested Mr Figueira to provide him with a report on his duties, but he failed to do so. This reluctance tends to imply that Mr Figueira was reluctant to disclose to the Board how much time his office duties had been reduced.

[130] Mr Duc claimed that there was insufficient evidence of the Club’s operational requirements which would lead to a conclusion that the job of Office Administrator was no longer required or that Mr Santos had not provided any basis for his view that Mr Figueira’s redundancy would save $60,000. I reject this submission.

[131] In considering various cost saving measures the Board was very much constrained in its options by the small workforce. After all, someone had to work the Bar, someone had to cook, someone had to clean and someone had to be in charge. A focus on reduced office functions seems obvious. It was self-evident that abolishing that role and distributing some of its duties and functions amongst volunteers, and with payroll responsibilities directed to the Club’s Accountant, would result in the saving of the salary and on costs of Mr Figueira’s position.

[132] Mr Duc submitted further that Mr Figueira’s duties still had to be carried out and it was not open to the Club to split the job up between other employees. In my view, the first leg of this submission is undoubtedly correct. However, it does not follow that the Club could not split up the job and distribute its tasks and functions to other employees, including volunteers. Helpfully, but perhaps unintentionally, Mr Figueira’s statement evidence at para 30 details which employees were performing the tasks he had previously undertaken. With respect, this is a classic redundancy scenario. It is entirely consistent with the Explanatory Memorandum (para 1548) and the relevant authorities; see: Ulan Coal v Howarth; Hodgson v Amcor and Dibb.

[133] In my opinion, the evidence in this case plainly established that Mr Figueira’s job as Office Administrator was abolished and its functions were redistributed to other employees, including volunteers. Consequently, Mr Figueira’s position was redundant. I am satisfied that the requirements of s 389(a) of the Act have been met.

Did the club comply with its Award obligation to consult about the redundancy?

[134] Mr Kaufmann submitted that the Club had complied with its consultation obligations under the Award, except that Mr Figueira had not been provided, in writing, with all relevant information about the Club’s proposed redundancy and its impact on him. This exception was obviously an appropriate concession based on the undisputed evidence to that effect.

[135] There was evidentiary conflict as to when the Club had made a definite decision to make Mr Figueira redundant. Various dates were postulated – 2, 3, 6, 10, 17 November 2015. Mr Figueira claimed that he was officially told on the 10 November 2015 that his position would be made redundant on 17 November 2015. Mr Kaufmann referred to the following note in the minutes of the Board meeting on 2 November 2015, at which Mr Figueira later attended, ‘in the opinion of all present, there is no need for a full time person in the office due to low level of work required’. Mr Kaufmann submitted that this was the date of the ‘definite decision’ as this was the date the decision was firmly made.

[136] On either version of events, the date of advice to Mr Figueira to the date of his redundancy, was still relatively short. Nevertheless, is also clear from Mr Figueira’s own evidence that from about the middle of October 2015, he was interacting with Mr Gouveia and Mr Santos in relation to his future with the Club. He was aware of the Board’s view that there was not enough office work to sustain his full time Office Administration position. While the word ‘redundancy’ was not expressly stated at the time, the imputations would have been apparent to everyone involved. In the subsequent weeks there were further conversations about shared duties and the vacant General Manager’s position. I will come back to this later.

[137] It seems clear enough that the process of consultation was haphazard, unstructured and informal. But this does not necessarily lead to a conclusion that the consultation was inadequate or the Club was merely paying ‘lip service’ to consultation. It was also evident that Mr Figueira was invited to Board meetings. He was actively considering options and strongly expressing his opinions.

[138] In my judgement, the consultation process – such as it was – was entirely understandable and predictable. It is unsurprising that it was less than pristine. It should also be stressed that ‘consultation’ does not mean agreement; See: Consultation Clause in Modern Awards. The Club is a very small enterprise with no industrial or human resources expertise. Its Directors, the decision makers, were mostly non English speaking community volunteers. I agree with Mr Kaufmann that the purpose of providing information is to assist in the consultation process. Rarely, in very small businesses would the process of consultation include information being put, in writing. The norm would be for discussions to occur between the employer and the employee, in circumstances where both would be so close to the business that they would well know the difficulties the enterprise was experiencing. Moreover, there was no evidence that Mr Figueira was disadvantaged or prejudiced as to the Club’s failure to provide information, in writing. As I said earlier, he was well placed to have been very much aware exactly why the proposed changes were necessary. I note that Mr Duc relied on Bissett C’s decision in Cameron v Transfield. However, that decision can be plainly distinguished for the following reasons:

• Transfield is a very large, well-resourced employer which would ordinarily be expected to strictly comply with its Award/Agreement obligations to consult.



• The Commission’s primary finding as to the redundancy of Mr Cameron ‘not being a genuine redundancy’ was because of Transfield’s failure to source redeployment opportunities for him. Indeed the Commissioner said at para [92]:

‘[h]ad the only failure of Transfield been that it did not provide the required information to the affected employees in writing (instead of orally as was done) I may have found differently.’

[139] Thus, while I acknowledge that while cl 8.1(b)(iii) was not strictly complied with, in that the information was not provided in writing, the real question is, whether this defect would have made any difference? I very much doubt it for the reasons I have earlier expressed.

[140] In any event, even if I was to make a finding that Mr Figueira’s dismissal was not a case of genuine redundancy, only because of the non-compliance with the requirements of s389 due to the Club’s failure to provide information to Mr Figueira, in writing, I do not consider that such a failure would result in Mr Figueira’s dismissal being found to be ‘harsh, unreasonable or unjust’, within the meaning of s 387 of the Act; See: Maswan.

Options for redeployment

[141] There was no consensus about the numbers of employees at the Club, or whether they were part time, casual, full time or volunteers. Mr Figueira believed that after his dismissal, the Club had seven employees, four of whom had been hired after his dismissal. Mr Capogreco’s submission was that the Club has four employees. Mr Figueira alleged, without any corroborating evidence, that some employees were paid ‘cash in hand’. This allegation did not impress me and Mr Duc wisely did not pursue this matter in submissions. Nor do I think that unsubstantiated claims about the wages now paid to the Chef and to others, takes Mr Figueira’s case very far. I ask: How could he possibly know? If this was a pertinent matter, pay records could have been requested under a notice to produce. In any event, without necessarily resolving the precise numbers of employees and their status, it is clear the Club has a very small workforce. Given this fact, the options of redeployment for Mr Figueira were limited. Even so, various options were raised and considered. The final proposition put in the redundancy letter, was an offer to Mr Figueira to work, on a casual basis, in the bar. Understandably, Mr Figueira did not accept this option as being reasonable.

[142] Moreover, like other aspects of this case, the evidence as to what was discussed about redeployment options was less than satisfactory. Again, while nothing was put in a formal way, the discussions with Mr Figueira were ad hoc and informal. Nevertheless, what is clear, is that Mr Figueira was engaged in robust conversations about what might be acceptable reemployment. In fact, the following options had been raised, at various times, and for whatever reason, were then not pursued:

• working in the bar for 4 hours a day five days a week;



• a full time combined office/bar position;



• the vacant General Manager’s position.

[143] It has been difficult to firmly establish whether Mr Figueira had rejected the first two options. It seems plain that he preferred to maintain a full time position, so it is likely (and as Mr Duc submitted) this first option would not have been accepted. Mr Figueira appeared to have been initially interested in the combined office/bar position. Otherwise, why would he have contacted the Union about rosters for such a position. However, he was concerned that his office duties would take longer than was proposed. The Club did not proceed with this option, presumably because it would not result in any savings. It appeared the Board concluded that Mr Figueira would remain on the same salary. In addition, Mr Santos gave evidence that the option of the split position was put to Mr Figueira on 2 November 2015, but he was unwilling to engage in any discussion on the matter. He demonstrated this unwillingness by his comment ‘shut up, you don’t know what you are talking about’. This comment was not denied.

[144] As to the General Manager’s role, the evidence is that Mr Gouveia had raised the prospect of Mr Figueira working in the role quite early in the process, but nothing came of it. In any event, Mr Figueira was worried that, as General Manager, he would be responsible for licencing. As it transpired, the evidence is less than satisfactory as to whether the Board actually intended to fill the vacant General Manager’s position. Mr Santos’ evidence was that it did not, but there was contrary evidence about a sign in the billiard room (see paras [47] and [64] above). In any event, this option did not ultimately come to pass.

[145] In summary, it would appear to me that the Club and Mr Figueira changed their minds a number of times as to these options. That said, even if Mr Duc’s submission is correct, that Mr Figueira would have accepted the split office/bar position, he hardly demonstrated any enthusiasm, let alone willingness, in his comment to the Board, ‘shut up, you don’t know what you’re talking about’.

[146] As the authorities make clear, one of the matters the Commission may take into account is whether a redundant employee is co-operative and willing to meaningfully engage with the Club as to any options for redeployment. As was said by the Industrial Commission of South Australia in Appeal Session in Re Milk Processing and Cheese Manufacturing &c. Award. (Appeal) Case (1978) CurrentReview 670 (‘Re Milk Processing Award’):

‘Like the Australian Commission, we agree that, if employment of a suitable nature and returning a comparable remuneration can no longer be found or is not arranged for the employee by the employer, then it is appropriate to require special provision to be made. It goes without saying that any employee who unreasonably either declines such employment or fails to co-operate in mitigating any disadvantage in an appropriate manner can scarcely be heard to seek the same special treatment as those who do.’

[147] In Clothing & Allied Trades Union of Australia v Algray Pty Ltd (1989) 31 IR 365, Merriman J, in reference to the aforementioned decision said at page 366:

‘… [I]n a redundancy situation where the employer is genuinely attempting to find alternative employment an employee should cooperate in every way to accommodate the alternative employment efforts.’

See also: Forster Tuncurry Golf Club Ltd t/as Forster Tuncurry Golf Club [2016] FWC 170.

[148] For the above reasons, I am satisfied that it would not have been reasonable, in all the circumstances, for Mr Figueira to be redeployed to any other position within the Club. In my assessment, Mr Figueira’s actions and conduct did not evince an intention by him of being willing to positively engage with the Club about the limited redeployment opportunities at the Club.

[149] It follows from the foregoing, that I am satisfied the Club’s objection to Mr Figueira’s unfair dismissal claim has been made out. As Mr Figueira’s dismissal was a case of ‘genuine redundancy’ within the meaning of s 389 of the Act, his application for an unfair dismissal remedy must be dismissed. An order to that effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Mr A Duc of Counsel with Ms K Figueira for the applicant.

Mr A Kaufmann of Counsel with Mr J Capogreco for the respondent.

Hearing details:

2016.

Sydney.

April 11, 12.

Printed by authority of the Commonwealth Government Printer

<Price code G, PR581880>