Julianne Downes Michelle Srnecv Workpac Pty Ltd T/A JP Nurseforce
[2010] FWA 5164
•22 JULY 2010
[2010] FWA 5164 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Unfair dismissal
Julianne Downes
Michelle Srnec
vWorkpac Pty Ltd T/A JP Nurseforce
(U2010/5920, U2010/6092)
SENIOR DEPUTY PRESIDENT KAUFMAN | MELBOURNE, 22 JULY 2010 |
Harsh, unjust or unreasonable - genuine redundancy - operational reasons - reorganization - change in the operational requirements of the employer’s enterprise - s.389.
[1] Each applicant had her employment terminated by the respondent on 2 February 2010. The reason given by the respondent to the applicant in each case was that there had been a reorganization of the respondent’s business, a consequence of which was that the position of each applicant no longer existed. It was agreed that the matters should be joined and I so ordered.
[2] The respondent is a national labour hire business, relevantly providing agency nursing staff in Victoria. The applicants had been employed at what is known as the “Melbourne Healthcare Branch” which was a branch that had not long been in operation. Each applicant was employed as an “allocations consultant” on a part time basis of approximately 20 hours per week. 1 They job-shared the one position.2 As I understand it, their primary role was to allocate nurses employed by the respondent to its clients as required.
[3] On 2 February 2010 the employment of each applicant was terminated, allegedly because of the impact of the global financial crisis and a review of the business of the respondent that led to a change in the team requirements in that part of its business. The result of the review was said to be that that the existing position of each applicant was no longer required. 3 The applicants lodged their applications for relief on 16 February 2010.
[4] The Melbourne branch of the respondent’s business had been established during 2009. It comprised five employees, including the applicants. In addition to the allocations and ancillary functions performed by the applicants, there was a business development manager as well as other staff responsible for recruiting nurses. 4
[5] According to Mr Peter Keith, the chief operating officer of the respondent, and Theresa Moltoni, its chief executive officer, they had had discussions regarding the financial position of the Melbourne branch in the months leading to the decision to terminate the employment of the applicants. Because the business had not grown as hoped following the purchase of JP Nurseforce by Workpac Pty Ltd, Ms Moltoni formed the view that either staff numbers would have to be reduced or the branch closed. She discussed these matters with Mr Keith on several occasions during January 2010 and on 25 January decided to retain the branch and to attempt to make it profitable. Ms Moltoni, in consultation with Mr Keith, decided “to remove the two part-time positions from the structure. Given that the primary function of these roles was allocations or answering the phones generally, and the number of allocations was diminishing, these tasks could adequately be undertaken by the remaining more senior staff.” 5 Ms Moltoni thought it appropriate to inform the affected staff personally, and did so on her next visit to Melbourne on 2 February 2010. She told each applicant of the decision and that there was no position into which either applicant could be redeployed. According to Ms Moltoni the applicants were able to discuss the decision with her.
[6] The respondent submitted that the applicants were not unfairly dismissed within the meaning of that expression in s.385 of the Fair Work Act 2009 (the FW Act) because each dismissal was a case of genuine redundancy. In order that there be a genuine redundancy the requirements of s.389 of the FW Act must be satisfied. That section provides:
(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.
[7] The respondent submitted that the requirements of s.389 had been satisfied in that it no longer required the applicants’ jobs to be performed by anyone because of changes in the operational requirements of its enterprise, it had complied with its obligations under an instrument of the kind referred to in s.389(1)(b) and it would not have been reasonable in all the circumstances for either applicant to have been redeployed within the respondent’s enterprise or that of an associated entity.
[8] Although no enterprise agreement applies or applied to the employment as at 2 February 2010, the respondent is and was a party to the Workpac Pty Ltd National Clerical Workplace Agreement 2009, an agreement made under the Workplace Relations Act 1996. It came into operation from the seventh day after 10 June 2009 being the date specified in the approval notice issued by the Workplace Authority 6, and remains in force for a period of five years from that date. The agreement is a workplace agreement and by operation of the transitional provisions is treated as though it is an enterprise agreement for the purposes of s.389. Further, also by operation of the transitional provisions, while a workplace agreement applies to an employee or to an employer, or any other person in relation to the employee, a modern award does not apply to the employee.7
[9] For the applicants it is put that there were no genuine redundancies. First, because their jobs were still required to be performed. Secondly, because the respondent hadn’t complied with its obligations to consult under a modern award. The applicants submitted that it was the Clerks Private Sector Award 2010 8 that applied to the employment of the applicants rather than the agreement. Thirdly, because it would have been reasonable in all the circumstances for the applicants to have been redeployed within the respondent’s enterprise or that of one of its related entities. In support of the latter submission it was noted that at the time the applicants employment was terminated for reasons that allegedly included the need for the respondent to reduce costs, the respondent was advertising for and hiring more staff for positions that were paid at higher rates than those of the applicants.
[10] In support of their first contention the applicants submitted that the real reason for their dismissals was that they had incurred the displeasure of Mr Keith because they had not fully utilised the hours of a permanent nurse when allocating nurses to shifts. This had the result that the nurse in question was paid for time that she was not working. The issue culminated with an email from Mr Keith to all the staff at the Melbourne branch. He expressed his disappointment with the allocation of the nurse in the previous week and indicated: “I have lost confidence in the current allocations set up both systematically and attitudinally and, effective immediately, am transferring primary accountability for allocations to Anna Kelly” [original emphasis]. 9 It was submitted that the alleged redundancies, coming so soon after this email, demonstrate that the redundancies were not genuine. Both applicants disputed the assertion that they had not carried out their allocations functions properly and sought to have this issue dealt with by management.
[11] To accept the submission that the restructure was contrived in order to terminate the employment of the applicants I would have to disbelieve Mr Keith and Ms Moltoni. This I am not prepared to do. Having seen and heard them, I am of the view that they were witnesses of credit, albeit there may have been some inconsistencies in their evidence. I accept that when Ms Moltoni made the decision to restructure the branch on 25 January 2010 she was not aware of the problem Mr Keith had with the performance of the applicants. 10 I also accept her evidence that she thought it appropriate that she deal with the performance issue separately from, and prior to, informing the applicants that their positions had been made redundant.
[12] I am satisfied that the allocations clerk roles were no longer required to be performed by anyone because of changes in the operational requirements of the respondent’s enterprise. It follows that I do not accept the submissions of their agent, Mr G Dircks, to the effect that the transfer of allocations functions to other personnel within the branch did not constitute a change in the operational requirements of the enterprise. The evidence was that there was a reorganization, with the termination of the employment of the applicants followed by a change in focus towards increased marketing of the branch with the appointment of more senior personnel amongst whom the allocations functions were included with their managerial responsibilities. That the more senior personnel were paid more than the applicants does not detract from the fact that there was an organizational change, indeed it supports that conclusion.
[13] The roles of the applicants were largely administrative. This is a matter I discuss at some length later, when dealing with whether the agreement or the modern award applied to the employment of the applicants. Their roles were not concerned with the generation of income for the branch by way of increasing sales and adding clients to the books. The positions that were being created by the respondent were designed to generate increased revenue for the branch, and prevent its closure. 11 In my view, the FW Act is not framed in such a way that a need for a re-organization of a business by the elimination of some jobs and the creation of others, as was done in this instance, is unable to be characterized as a ‘change in the operational requirements of the employer’s enterprise’.
[14] The requirements of s.389(1)(a) have been met.
[15] It was then submitted for the applicants that the modern award, not the agreement, applied to their employment. It is common ground that the agreement imposes no obligation to consult and that, accordingly, if it applied, there was no obligation on the respondent to do so for the purposes of s.389(1)(b) of the FW Act.
[16] Field Team Members (FTMs) is the title given by the respondent to its employees who are on-hired to clients of the respondent. ‘Employees’ means those employees of the respondent who are not on-hired, such as its in-house clerical and administrative staff. With the introduction of the 2009 agreement, employees and FTMs were covered by a single agreement for the first time.
[17] It is noteworthy that each applicant asserts that her employer was “Workpac Pty Ltd T/A JP Nurseforce”. The employment agreements are between each applicant and “WorkPac Pty Ltd (and its subsidiaries)” 12. In answer to a question from me, Ms Moltoni stated that the employer of the applicants was “Workpac Healthcare Pty Ltd” (Healthcare) which is a subsidiary of WorkPac Pty Ltd. The respondent has not taken the point that the incorrect entity has been asserted to have been the employer, nor have the applicants sought to amend their applications. In these circumstances, I will treat the matters as though the correct entity has been named as the respondent.
[18] Mr Dircks did, however, take the point that Healthcare is not a named party to the agreement and thus the agreement could not have applied to the employment of the applicants, with the consequence that the relevant modern award applied. This argument fails because the agreement makes it plain that the subsidiaries of the company are parties to it. In applying the presumption of regularity, I take it that the agreement is a multiple-business agreement that was made under ss.331 and 332 of the Workplace Relations Act 1996. The agreement states that the parties to it are:
“Workpac Pty Ltd and its subsidiaries (the Company); and ... All Employees and Field team Members (Employees and FTMs) employed by the Company for whom there is a classification in this agreement.”
It is said to:
“apply to and be binding upon the Company in relation to its Employees and FTMs principally engaged in clerical and administrative work, across Australia for which classifications and rates of pay are prescribed by this Agreement.”
By clause 1.9.4 it is provided that where the agreement refers to FTMs, it also includes employees.
[19] Mr Dircks’ next argument was that the agreement only refers to FTMs, alternatively, if it applies to employees, it only applies to those whose classifications and pay rates are prescribed by the agreement. He submitted that no classifications or pay rates were prescribed for the work performed by the applicants.
[20] It is apparent from the clauses of the agreement to which I have referred that the agreement applies to employees as well as FTMs. Additionally, Ms Moltoni said that in the negotiations and voting for the agreement, employees as well as FTMs fully participated on the basis that the agreement was to apply to both groups. To the extent that this extrinsic material is required to assist in the construction of the agreement, it confirms that it applies to all employees, whether they be FTMs or ‘employees’, provided that classifications and pay rates are prescribed for them.
[21] The agreement covers the group’s employees across Australia. It is the first agreement to apply to the company as well as its subsidiaries. To accommodate this, there are several schedules that apply differentially to the states and territories. Schedule 1 applies to “all FTM’s engaged in one of the classifications applicable to this schedule who are ... employed in the State of Victoria”. The classifications applicable to this schedule are found in another document which is entitled “Clerical Agreement Classification Structure and Definitions”. 13 This document was lodged with the agreement at the time it was approved and in my view forms part of the agreement. Although there is no specific or separate classification for an allocations clerk or allocations officer, Ms Moltoni pointed to the classification of a Grade 2 Clerical Officer as a classification that is applicable to the work performed by the applicants.14 In submissions it was suggested that if the Grade 2 classification did not apply, then either Grade 5 or Grade 6 administrative officer classifications also covered the work of the applicants.15
[22] Although Mr Dircks took the point that the applicants were not covered by the agreement because none of its classifications applied, he led almost no evidence upon which he based his submission. Ms Downes stated that her duties were to get advance bookings from hospitals and to book nurses in and also to update nurses’ databases.” She also performed reception duties such as greeting people at the door, taking phone calls, giving application forms to prospective employees, and making up ID cards. 16 Ms Downes attached an email that she had sent to Mr Keith on 28 January 2010 in which she set out the full range of her actual duties.17 Having regard to that evidence I am satisfied that the duties of the applicants fell comfortably within the classification of a Grade 2 Clerical Officer as defined in clause 1.1.2 of Schedule 1 of the Classification Structure and Definitions.18 Their role was quintessentially clerical in nature. Despite Mr Dircks suggesting to the contrary, I agree with Ms Moltoni19, there being no evidence to the contrary, that the reference in clause 1.1.2.10.1 to “locate staff in different sections” encompasses the function of allocating FTMs to clients. Mr Dircks sought to make much of the fact that the applicants combined salary was some $8,000 per annum above the rate prescribed by the agreement. This does not bear on whether their work was within the classification structure. The fact that an employer has paid above the minimum does not lift the employee out of the terms and conditions (including classifications) prescribed by the agreement.
[23] I therefore conclude that the agreement applied to the employment of the applicants and there was no obligation on the employer to consult about the redundancies under s.389(1)(b).
[24] The third matter to be determined in relation to the issue of whether the dismissals of the applicants were cases of genuine redundancy for the purposes of s.389 is to determine whether it would have been reasonable in all the circumstances for the applicants to have been redeployed within the respondent’s enterprise or that of one of its associated entities.
[25] Although the respondent is a large employer operating in most states and territories, with some 4,200 FTMs and 250 internal employees, in cross-examination Ms Moltoni said that she had enquired of her Victorian Regional Manager as well as her WorkPac co-ordinator to ascertain what positions, if any, might be available for the applicants throughout Australia. She was advised that there were no positions available. 20 Generally the cross-examination of Ms Moltoni in relation to redeployment was largely directed to three positions that were created in Victoria. At about the time of the dismissals, the respondent advertised for a receptionist/office administrator.21 The role was a casual position, with the possibility of it becoming a full time position in the future. I note that the advertisement was apparently placed on 11 February 2010, some two and a half weeks after the decision was taken to make the applicants redundant, and more than a week after their dismissal. Ms Moltoni explained that the respondent was “looking for people who might be interested in casual work in our industrial office located at Port Melbourne”. The advertisement was a result of a casual back-up employee, who had filled in from time to time to cover staff absences, no longer being available. This does not seem to me to be a position into which it would have been reasonable in the circumstances to redeploy either of the applicants. Indeed, as the position did not appear to exist at the time of their dismissals it would have been impossible to have done so, even had a casual position of this nature otherwise been suitable, which I find was not the case.
[26] Attention was then attracted to an advertisement headed “Lead the Change!”, placed by the respondent on 2 February 2010, which was the day of the dismissals, but about a week after the decision to make the applicants redundant was taken. According to Ms Moltoni, that advertisement was seeking a branch manager to lead the Healthcare branch in Melbourne. According to Ms Moltoni, the branch manager role was a significantly more senior role than the role being performed by the applicants at the time of their dismissal. Indeed, the branch manager role was the most senior role available within the branch. Ms Moltoni gave evidence that she did not believe it was a role into which either of the applicants could have been redeployed, and gave a variety of reasons for coming to this conclusion. 22 I accept those reasons.
[27] The other position into which it was submitted was that the applicants could have been redeployed was that of office manager. That position was filled about a fortnight after the dismissals of the applicants. 23 Again, it was a far more senior position to that of an allocations officer.
Both Ms Moltoni and Mr Keith considered that neither of the applicants was suited to either managerial position, despite their qualifications. Given that for personal reasons Ms Downes could not take on a full time position, a fact known to Mr Keith, 24 it could not be said that it would have been reasonable in the circumstances to promote her to a full-time managerial position. I have some sympathy with the respondent’s submission to the effect that redeployment does not envisage promotion to a considerably more senior position, even were the applicants capable of fulfilling the more senior role.
[28] On balance, I find that that it would not have been reasonable in all the circumstances for either applicant to have been redeployed into either managerial role.
[29] It follows that the dismissal of each applicant was a case of genuine redundancy within the meaning of s.389 and was therefore not an unfair dismissal under s.385. Each application must be dismissed. Having reached this conclusion it is not necessary to deal with the merits of the applications.
SENIOR DEPUTY PRESIDENT
Appearances:
Dircks, G on behalf of both applicants.
Laird, C on behalf of the respondent in both matters.
Hearing details:
2010
MELBOURNE
11 JUNE
1 Ex. A1 - Statement of Downes; Ex A2 - Statement of Srnec
2 PN351
3 Ex. A1 - Statement of Downes, Attachment JD5; Ex A2 - Statement of Srnec, Attachment MS2
4 PN 113 - 115
5 Ex. R1 Statement of Theresa Moltoni, paragraph 17
6 PN81
7 Relevantly, s.57 of the FW Act provides:
Interaction between modern awards and enterprise agreements
(1) A modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.
8 MA000002
9 Ex. A1 Statement of Julianne Downes, Attachment JD1
10 PN129-138
11 PN689-690
12 Ex.A1 Statement of Julianne Downes, Attachment JD3; inferentially that of Ms Srnec was the same.
13 Ex.R4
14 PN206
15 PN655
16 Ex.A1
17 Ex.A1, Attachment JD1
18 Ex.R4
19 PN209
20 PN106 - 108
21 EX.R2
22 PN38
23 PN722-723
24 PN438
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