Kristine Ellen Staniland v Stegbar Pty Ltd

[2017] FWC 4703

[2017] FWC 4703

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kristine Ellen Staniland
v
Stegbar Pty Ltd
(U2017/6623)

COMMISSIONER SAUNDERS NEWCASTLE, 14 SEPTEMBER 2017

Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – application dismissed.

[1] Mrs Kristine Ellen Staniland was employed by Stegbar Pty Limited (Stegbar) as a casual Office Assistant/Administrator working three days per week from 10 May 2011 until her dismissal on 31 May 2017. Stegbar asserts that Mrs Staniland’s dismissal was a genuine redundancy within the meaning of s.389 of the Fair Work Act 2009 (Cth) (Act). Mrs Staniland denies that her dismissal was a genuine redundancy and contends that the redundancy of her role was a sham and that her dismissal was harsh, unjust and unreasonable.

[2] Stegbar is a wholly owned subsidiary of JELD-WEN Australia Pty Limited (JELD-WEN). The JELD-WEN group of companies design and manufacture windows and doors and includes companies trading as Stegbar, Corinthian Doors, Airlite Windows and Doors, Regency Showerscreens and Wardrobes, William Russell Doors, and Trend Windows and Doors. Stegbar has a number of showrooms across Australia which display and sell its products and provide service to its customers.

Determinative Conference

[3] After taking into account the views of the parties, I decided to deal with the matter by way of a determinative conference.

[4] The determinative conference took place on 1 September 2017. Mrs Staniland gave evidence on her own behalf and adduced evidence from her husband, Mr Robert Staniland. Mr Richard Moodie, Sales Consultant at the Kotara showroom of Stegbar, was called by Mrs Staniland to give evidence pursuant to an order under s.590(2) of the Act. Stegbar adduced evidence from Mr Craig Mitchell, Sales Manager NSW of Stegbar, and Ms Maria Taylor, Human Resources Manager of JELD-WEN.

Initial matters to be considered

[5] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of Mrs Staniland’s application.

[6] There is no dispute between the parties and I am satisfied on the evidence that:

(a) Mrs Staniland’s application was made within the period required in s.394(2) of the Act;

(b) Mrs Staniland was a person protected from unfair dismissal; and

(c) Stegbar was not a “small business employer” as defined in s.23 of the Act, so the Small Business Fair Dismissal Code does not apply to the dismissal.

[7] In relation to the fourth initial matter which I am required to consider, there is a dispute between the parties regarding whether Mrs Staniland’s dismissal was a genuine redundancy. Accordingly, I must decide whether Mrs Staniland’s dismissal was a case of genuine redundancy within the meaning of s.389 of the Act before I consider the merits of the application.

Genuine redundancy

[8] Section 389 of the Act defines genuine redundancy 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.”

[9] “Associated entity” has the meaning given by s.50AAA of the Corporations Act 2001 (Cth).

The employer no longer required the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise (s.389(1)(a))

[10] For purposes of s.389(1)(a) of the Act, it is necessary to determine whether Stegbar no longer required Mrs Staniland’s job to be performed by anyone because of changes in the operational requirements of Stegbar’s enterprise.

[11] A job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee”. 1 Where there has been a reorganisation or redistribution of duties, the question is whether the employee has “any duties left to discharge”.2 If there is no longer any function or duty to be performed by that person, his or her job becomes redundant.3 For example, an employer may redistribute all the tasks done by a particular person between several other employees, resulting in the person’s job no longer existing.

[12] An employee’s job may still be genuinely made redundant when there are aspects of the employee’s duties still being performed by other employees. 4 The test is whether the job previously performed by the employee has survived the restructure or downsizing, not whether the duties have survived in some form.5

[13] The reference to “changes in the operational requirements of the employer’s enterprise” in s.389(1)(a) of the Act includes circumstances where an employer restructures its business to improve efficiency, productivity, sales, revenue or some other aspect of performance. The operational circumstances of a business which may give rise to a redundancy will reside in the direct knowledge of the employer. The employer is required to provide direct evidence about the nature of the employee’s job and why it is no longer required to be performed as a result of changes in the operational requirements of the employer’s enterprise.

[14] There is no dispute between the parties and I am satisfied on the evidence that from the commencement of Mrs Staniland’s employment with Stegbar until October 2016 there were three employees who worked in or from the Kotara showroom at any one time. Mrs Staniland worked as a casual Office Assistant/Administrator, 8:30am to 5:00pm on Monday, Wednesday and Friday. Mr Moodie worked as a full-time Sales Consultant in the Kotara showroom, 8:30am to 5:00pm from Monday to Friday. Prior to October 2016, Mr Stuart Baker was employed by Stegbar as a full-time Sales Representatives and he also had some managerial responsibilities. Mr Baker resigned from his employment with Stegbar in October 2016.

[15] Mr Mitchell gave evidence, which I accept, that the role of Sales Representative required Mr Baker to work principally on the road in the Newcastle region, attempting to procure sales of Stegbar’s products. However, Mr Baker used the Kotara showroom as his base and he regularly worked in the Kotara showroom when preparing quotes for customers or if required to cover the absence of Mr Moodie. 6 Accordingly, while Mr Baker was not considered by Stegbar to be part of the staffing levels of the Kotara showroom he did work in and from the Kotara showroom.

[16] Mr Mitchell, in his capacity as the Sales Manager NSW of Stegbar, is responsible for implementing business strategies and sales plans into the sales teams and showrooms in New South Wales. 7 Mr Mitchell gave evidence, which I accept, that in 2016 Stegbar anticipated a downturn in the new home builder market in the next few years.8 As a result, Stegbar made a strategic decision to focus on retail growth and trade growth from its showrooms. To achieve that objective, Stegbar needed to improve customer service in its showrooms.

[17] In light of this strategic position taken by Stegbar and Mr Baker’s resignation, in October 2016 Mr Mitchell decided to make the following changes in an attempt to increase retail sales and improve business efficiency in the Kotara showroom:

(a) First, Mr Mitchell decided that the role of Sales Representative for the Newcastle region, which was left vacant following Mr Baker’s resignation in October 2016, would not be filled. Mr Mitchell gave evidence, which I accept, that Mr Baker had struggled to achieve his sales targets when he was on the road attempting to sell Stegbar’s products in the Newcastle region; and

(b) Secondly, Mr Mitchell decided that the Kotara showroom required two full-time employees working in the showroom, rather than one full time employee (Mr Moodie, Sales Consultant) and one casual employee working three days per week (Mrs Staniland, Office Assistant/Administrator). This decision was made in an attempt to improve customer service in the Kotara showroom.

[18] These changes meant that Stegbar did not need an employee working three days per week as an Office Assistant/Administrator in the Kotara showroom.

[19] In addition to the matters set out above, Mr Mitchell relies on the following evidence to support Stegbar’s case that the changes in its operational requirements were the reason for its decision that it no longer required Mrs Staniland’s job to be performed by anyone:

(a) Mr Mitchell gave evidence that he was aware that on the two days per week that Mrs Staniland did not work the Kotara showroom was struggling to answer incoming phone calls and assist walk-in customers. Mr Mitchell received an email from Mrs Staniland at 3:36pm on 24 October 2016, in which she advised that Mr Moodie was away and she was run off her feet, and as a result calls had been missed and customers had left the showroom. Mrs Staniland expressed the view that it was “not sustainable for 1 person” to be working on their own in the Kotara showroom. This supported Mr Mitchell’s view that there was a need for two full-time employees in the Kotara showroom to answer incoming phone calls and assist walk-in customers; 9

(b) at 5:40pm on 24 October 2016, Mr Mitchell sent an email to Mrs Staniland in which he invited Mrs Staniland to consider taking up a full-time position in the Kotara showroom, working 8.30am to 5:00pm, Monday to Friday. The email relevantly provided as follows:

“… I've asked on a few occasions about working extra days to support the Newcastle branch and I understand that you've been reluctant due to other commitments. We need to ask if your position on this remains the same today and we ask this because of what both yourself and Richard have made clear over the last week, the showroom can't manage with one casual three days and one full time consultant.

With that said as a business we require the three day position to become a full time five days per week to ensure we are fully staffed Monday- Fridays. To resolve the staffing issues can you please come back with your position on moving to working five days per week 8.30am-5:00pm (Monday-Friday).” 10

(c) at 11:06am on 27 October 2016, Mr Mitchell sent a follow up email to Mrs Staniland in the following terms:

“Hi Kristine,

I understand that your contract says (10:00am-2.00pm) Monday, Wednesday and Friday, but due to how busy the showroom is the changes to working hours is required to ensure the Newcastle showroom is performing to meet customer demand.

We are hoping you are able to come on board with this change as we consider your experience to be an asset.

Please advise.” 11

(d) at 6:21pm on 31 October 2016, Mr Mitchell sent a further email to Mrs Staniland in the following terms:

“Hi Kristine,

We understand it's a lot to consider, and our preferred position is that you are able to commit to the five days week 8.30-5:00pm in the Newcastle branch.

We are looking at bringing the Newcastle branch more inline with what's working for other branches, we can discuss this in more detail at this Thursday's showroom meeting.” 12

(e) at 4:50pm on 2 November 2016, Mrs Staniland sent an email to Mr Mitchell in which she declined Mr Mitchell’s offer for her to take up full-time employment in the Kotara showroom. The email was in the following terms:

“Hi Craig

Thank you for the offer to work full time Monday to Friday 8.30am to 5:00pm. Thank you also for acknowledging my experience to be an asset to Stegbar.

I wish to point out the contract you mentioned below is obsolete as my current contract is Monday 8.30am-5.00pm, Wednesday 8.30am-5.00pm, and Thursday 8.30am - 5.00pm as per agreement with Natalie Ajkay, which took effect in September 2011 after Sharon Carroll left.

Richard and myself have not said the showroom can't manage with our current staffing levels. We are very busy, however we are performing to meet customer demand.

You must have misunderstood comments relating to the need to replace Stuart. We need another sales representative to make more sales not another admin/estimator.

The showroom does not need more than 3 days per week for my role as Estimator/Administrative Assistant. I have managed to service two sales representatives and the showroom 3 days per week for the last 5 years and I am one of the higher performing estimators on a quotes per day basis.

The problem I raised last Monday of working alone relates to a two staff team when one is off sick and this would not be improved by my working 5 days per week. Working 5 days per week for my role would be an unnecessary cost for the business. We need another sales rep to make a three person team, as we did prior to Stuart leaving.

I am unable to work more than the current 3 days per week as you are aware. However, I have offered to work additional hours on those days on more than one occasion, if required, to support the business.

If you still require the role of estimator/administration assistant to be 5 days per week, I would happy to train another part time person to cover the two days I am not here, as I did with Jenny Petersen two years ago. This training will take some time and effort due to the complexity of our systems and need for product knowledge.

I feel the best outcome for the business, moving forward, would be to have another sales rep on the road and also support the showroom when needed. The business has the potential to grow with the correct person selling our product in the Newcastle area.

I hope you do not misinterpret, misunderstand or misread this email, as I am just trying to help with outlining what I feel would possibly be the best outcome for the Newcastle Showroom moving forward.

I look forward to discussing further with you on Thursday as I am keen to continue to give my best for the business.” 13

(f) at 5:07pm on 2 November 2016, Mr Mitchell sent an email to Mrs Staniland in the following terms:

“Hi Kristine,

Thanks for the input below, we can advise today that we will need to seek alternative solutions for the five day 8.30am-5:00pm role for the Newcastle showroom. It's unfortunate that you are unable to commit to the new hours for the showroom moving forward.” 14

(g) on 3 November 2016, Mrs Staniland attended a meeting at the Kotara showroom with Mr Mitchell, Mr Moodie and Ms Jane-Frances Christie, Area Manager of Stegbar. During the meeting, Mrs Staniland was informed that moving forward Stegbar needed to bring the Kotara showroom in line with the Chatswood showroom with another full-time person in the showroom to grow the business. Mr Mitchell again offered Mrs Staniland the full-time role, which she again declined. Mrs Staniland offered to continue working three days per week with another person working the other two days per week. This offer was declined by Mr Mitchell; he informed Mrs Staniland that the business needed the same person working in the Kotara showroom five days per week. Mr Mitchell informed Mrs Staniland that when a full-time employee was employed in the Kotara showroom, her job would no longer be required because there would be no need to have a casual employee working part-time hours, in addition to two full-time employees in the showroom; 15

(h) at 6:36pm on 15 December 2016, Mr Mitchell sent an email to Mrs Staniland in the following terms:

“Hi Kristine,

As an update on our plans for the Newcastle showroom with regards to moving to two full time staff working out of the branch. We would envisage these changes to be happening approx. in late January or early February 2017.

With regards to the holiday period the Newcastle branch will be closed from Thursday 22^nd December and re opening on Monday the 16th January 2017 for business as usual.

We understand that the above not to be a clear cut time frame on when these changes will occur. We also understand that there is a possibility that you are currently or may be seeking alternative employment options that continue to support your three day per week availability, and that's all ok. This is a main reason we chose to bring the Newcastle showroom changes out, was for everyone to be aware and give everyone opportunity make arrangements or grab the new opportunity of the full time position.” 16

(i) the process of recruiting a new full-time employee for the Kotara showroom was delayed in the first quarter of 2017 because Stegbar was dealing with and responding to a number of complaints and claims made by Mrs Staniland. Those matters are explained further below;

(j) on 1 May 2017, Mr Ben Smyth commenced working as a full-time Sales Consultant in the Kotara showroom. That role was advertised in April 2017; 17

(k) the letter of termination dated 31 May 2017 addressed to Mrs Staniland contains the following statement in relation to the reason for her dismissal:

“Dear Kristine,

As you are aware, as part of its business strategy, JELD-WEN undertakes regular organizational reviews to identify performance opportunities within business units and the resources, processes and systems required to build a robust structure and meet JELD-WEN's growth strategy. As a result of this organizational review, regretfully the role of Casual Office Assistant is made redundant.

We've tried to identify other suitable opportunities within the business; however, no practicable redeployment option currently exists. This letter serves as a consequence of this decision and confirms that your employment with JELD-WEN will cease today, effective immediately.

Due to your employment ending because of redundancy, as a casual employee you are not entitled to receive redundancy pay. You will be paid your accrued pro-rata Long Service Leave entitlement and any outstanding pay up to and including your last day of employment.

Please be assured that a decision to make a role redundant is not one that JELD-WEN makes lightly as we are mindful of the impact such decisions have upon the lives of our employees and their families.

However, business needs unfortunately make such change unavoidable at times. If you have any queries in connection with the contents of this letter please do not hesitate to discuss them with the writer.

We would like to thank you for your contribution to our business and we wish you the very best in your future endeavours.” 18

(l) prior to the restructure, Mrs Staniland’s primary duties as Office Assistant/Administrator involved her providing administrative assistance, supporting the sales team, data entry, preparing quotes and orders, banking, answering and distributing phone calls, assisting customers with their enquiries, filing, ordering spare parts and stationary, managing the post and the petty cash and using software programs Titan and Salesforce. 19 Following the restructure, the duties Mrs Staniland previously performed have been distributed amongst Mr Moodie, Mr Smyth and, to a minor extent, Ms Jennie Graham, Sales Support Supervisor based in Lansvale, New South Wales, who if required can provide support in preparing quotes for the Sales Consultants based in the Kotara showroom. Since 31 May 2017, Stegbar does not have any person employed in the job of Office Assistant/Administrator at the Kotara showroom.20

[20] The evidence set out in the previous paragraph was not challenged in any serious way by Mrs Staniland. I accept those matters as truthful and reliable evidence.

[21] Mrs Staniland submits that the redundancy of her position was a sham fabricated by Stegbar for the purpose of terminating her employment. 21 In support of this submission, Mrs Staniland relies primarily on the following matters:

(a) Mrs Staniland contends that there was no change in the operational requirements of Stegbar’s enterprise at the Kotara showroom. Mrs Staniland says that the minimum staffing required in any showroom is three employees, which had been the staffing level at the Kotara showroom throughout her employment up until October 2016. 22 Mrs Staniland says that Stegbar had no genuine need or strategic plan that required the restructure and that Stegbar simply needed to replace the position of Sales Representative left vacant by Mr Baker to return the staffing levels to three employees rather than make her role redundant. This decision would reduce the likelihood of employees working alone and free up more time for the Sales Consultants to follow up leads and quotations. Further, Mrs Staniland contends that the resources of the Kotara showroom were not stretched due to the volume of work coming in and Mr Mitchell did not know how busy the showroom was;23

(b) Mrs Staniland contends that Stegbar’s offer of the full-time role was not genuine because Mr Mitchell knew that she could not work more than three days per week because she had commitments on the other two days of the week, including looking after her grandson; 24

(c) Mrs Staniland had previously made a number of claims against Stegbar and contends that her employment was terminated to avoid payment of these alleged entitlements and because Mr Mitchell disliked her for raising these claims. 25 These claims related to:

● an alleged underpayment of wages by Stegbar that arose in circumstances where Mrs Staniland says she was being paid at the incorrect classification level. The underpayment claim had been raised by Mrs Staniland on a number of occasions since July 2015, including in emails to Mr Mitchell on 2 and 16 February 2017; 26

● payment of lost wages for the period 22 December 2016 to 15 January 2017 when the Kotara showroom was closed, which Mrs Staniland says was done intentionally by Mr Mitchell to intimidate her and force her to lose two weeks wages;

● reimbursement of travel expenses for time travelling from work to the bank and post office to undertake her duties; and

● a request for flexible working arrangements made by Mrs Staniland on 1 December 2016 and 20 March 2017 in which she requested for her employment to be converted to permanent part-time working 8:30am to 5:00pm on Monday, Wednesday and Friday. 27

Mrs Staniland made two applications to the Commission relating to these claims. The first application was made on 9 May 2017 pursuant to s.739 of the Act for the Commission to deal with a dispute in accordance with a dispute settlement procedure (C2017/2524). The second application was made on 10 May 2017 pursuant to s.789FD of the Act for the Commission to make an order to stop bullying (AB2017/263). The application alleged bullying conduct by Mr Mitchell and Ms Taylor relating to their handling of her claims.

[22] I do not accept Ms Staniland’s contention that the redundancy of her position was a sham or was not genuine, for the following reasons:

(a) I reject Mrs Staniland’s submission that there was no change in the operational requirements of Stegbar’s enterprise. I am satisfied that the change to Stegbar’s operational requirements was the need to have two full-time employees working in the Kotara showroom, as a result of Stegbar’s strategic goal to increase retail and trade sales growth by improving customer service in its showrooms. I am satisfied that Mr Mitchell’s evidence that phone calls had been missed and customers were not being assisted on the two days per week on which Mrs Staniland did not work were genuine business reasons giving rise to him deciding that there was a change in the operational requirements of Stegbar’s enterprise that required two full-time employees at the Kotara showroom. The matters raised by Mrs Staniland principally focus on taking issue with the business rationale of Stegbar’s decision to restructure the staffing at the Kotara showroom rather than replacing the position of Sales Representative following Mr Baker’s resignation. 28 Mr Mitchell gave evidence, which I accept, that there is no set structure or policy on the minimum staffing level of a showroom and that while he listened to and considered the opinions expressed by Mrs Staniland and Mr Baker regarding the structure of the Kotara showroom, he did not have to, and did not, agree with their suggestions; the decision was ultimately a business decision for him to make. I accept the logic and rationale of Mr Mitchell’s decision to restructure the Kotara showroom such that there are two full-time employees working in the showroom, particularly in light of Stegbar’s strategic decision to focus on retail and trade growth from its showrooms. Notwithstanding the fact that Stegbar ultimately decided to employ a second Sales Consultant to work in the Kotara showroom after Mrs Staniland rejected the offer for her to take up a full-time role in the Kotara showroom as an Office Assistant/Administrator, I accept Mr Mitchell’s belief that Stegbar’s goal to improve customer service in the Kotara showroom could have been achieved if Mrs Staniland had taken up the offer of full-time employment, even though she is not trained in sales and did not undertake selling work. Mr Mitchell gave evidence, which I accept, that other Stegbar showrooms work well from a customer service point of view with non-sales staff such as Mrs Staniland greeting customers and providing assistance to Sales Consultants;

(b) I reject Mrs Staniland’s submission that the offer of the full-time role to her was not genuine because Mr Mitchell was aware that Mrs Staniland had commitments on the two days on which she did not work for Stegbar. Prior to October 2016, Mr Mitchell was aware that Mrs Staniland had commitments on the two days per week on which she did not work for Stegbar. 29 However, I accept Mr Mitchell’s evidence that he was not aware when he offered Mrs Staniland the full-time job in October 2016 whether she still had those commitments or whether, if she did, she may have been willing to make changes to enable her to take up the full-time role. I also accept Mr Mitchell’s evidence that he considered Mrs Staniland a good employee and that she had good customer relations skills and product knowledge. During cross-examination Mr Mitchell clarified that while two employees made comments to him during their exit interviews concerning difficulties they apparently had in working with Mrs Staniland, Mr Mitchell gave evidence, which I accept, that those comments did not alter his opinion that Mrs Staniland was a valuable employee. That Mr Mitchell repeatedly offered Mrs Staniland a full-time job in October and November 2016 supports the genuineness of his opinion in that regard; and

(c) I reject Mrs Staniland’s submission that her job was made redundant because she had made a number of claims regarding her employment:

● in relation to her claim relating to underpayment of wages, this claim dated back to July 2015. There was a short period of time between the resignation of Mr Baker in October 2016 and the decision of Mr Mitchell to restructure the Kotara showroom. The claim regarding underpayment of wages was not raised in any significant way by Mrs Staniland between 17 December 2015 and February 2017. On 27 February 2017, Ms Taylor met with Mrs Staniland at the Kotara showroom to discuss the grievances raised by Mrs Staniland in her email to Mr Mitchell dated 16 February 2017, which included the underpayment claim. 30 I accept Mr Mitchell’s denial that Mrs Staniland’s claim for underpayment of wages did not form part of the reasons for her job being made redundant;

● in relation to her claims for lost wages and travel reimbursement, I find that these claims did form part of the reasons for Mrs Staniland’s job being made redundant because they were raised by Mrs Staniland after Mr Mitchell had advised her that her job would be made redundant due to changes in the operational requirements of Stegbar’s enterprise at the Kotara showroom;

● in relation to her claim for flexible work arrangements, this issue was raised by Mrs Staniland after Mr Mitchell had advised her that her job would be made redundant due to changes in the operational requirements of Stegbar’s enterprise at the Kotara showroom. On 29 March 2017, Mrs Staniland attended a meeting with Mr Mitchell and Ms Taylor and was advised that Stegbar was unable to approve her request for a flexible working arrangement due to operational reasons. This was confirmed in a letter emailed from Mitchell to Mrs Staniland on 30 March 2017, which set out the operational reasons as follows:

“As discussed on Wednesday 29th March 2017, we are unable to approve your request for the following operational reasons:

Due to the retail & trade growth in the region, we have the requirements for two full time employees working from the Newcastle branch five days per week Monday - Fridays to support the current and future growth plans.

Our first option for the second full time employee was yourself, but as you explained in your response, your current arrangements does not allow for this.

We currently have our Newcastle branch sales consultant working alone on Tuesdays and Fridays, this has been manageable in the past but moving forward with current and expected volumes of growth will be untenable. Also with safety as one of our core values, the two full time employees will reduce or eliminate the hours an employee would be working alone in the Newcastle branch.

Restructure of the Newcastle sales team to meet market and customer requirements. We currently have one full time Sales Consultant, one full time Area Manager and a Casual three days per week. Moving forward we will be working on a structure of two full time Sales Consultants and one full time Area Manager to meet market demands.” 31

The reasons for Stegbar’s refusal to approve Mrs Staniland’s request were consistent with the operational requirements giving rise to the redundancy of her job. I find that these claims did form part of the reasons for her job being made redundant because they were raised by Mrs Staniland after Mr Mitchell had advised her that her job would be made redundant due to changes in the operational requirements of Stegbar’s enterprise at the Kotara showroom; and

● in relation to her workplace bullying claims, they were raised after Mr Mitchell had advised her that her job would be made redundant due to changes in the operational requirements of Stegbar’s enterprise at the Kotara showroom. Further, Mr Mitchell and Ms Taylor denied those claims. Mrs Staniland discontinued her bullying claims after her employment was terminated.

[23] For the reasons set out above, I am satisfied that Stegbar no longer requires Mrs Staniland’s job to be performed by anyone because of changes in the operational requirements of Stegbar’s enterprise.

Compliance with any consultation obligation in a modern award or enterprise agreement that applied to the employment (s.389(1)(b))

[24] For there to be a genuine redundancy within the meaning of s.389 of the Act, Stegbar must have complied with any obligation in a modern award or enterprise agreement to consult about the redundancy.

[25] There is no dispute between the parties and I am satisfied that Mrs Staniland was covered by the Clerks – Private Sector Award 2010 (the Clerks Award) during her employment with Stegbar.

[26] Clause 8 of the Clerks Award imposes consultation obligations on an employer in particular circumstances. Clause 8.1 provides 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.”

[27] There is no dispute between the parties and I am satisfied on the evidence that Stegbar made a definite decision in October 2016 to introduce major changes in organisation or structure that were likely to have significant effects on employees. That decision was to have two full-time employees work from the Kotara showroom for the purpose of increasing retail sales and improving business efficiency.

[28] Pursuant to clause 8.1 of the Clerks Award, Stegbar was required to:

(a) notify Mrs Staniland of the definite decision to introduce such changes;

(b) as soon as practicable after the definite decision was made, discuss with Mrs Staniland and her representatives, if any, the introduction of the changes, the effects the changes were likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees;

(c) give prompt consideration to matters raised by Mrs Staniland and/or her representatives in relation to the changes; and

(d) provide in writing to Mrs Staniland and her 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.

[29] I am satisfied that, in accordance with cl.8.1(a) of the Clerks Award, Stegbar notified Mrs Staniland on 24 October 2016 of its definite decision to introduce changes. In particular, in the email from Mr Mitchell to Mrs Staniland sent on 24 October 2016 Mr Mitchell notified Mrs Staniland of Stegbar’s definite decision that the business required her “three day position to become a full time five days per week to ensure we are fully staffed Monday-Fridays”.

[30] On 3 November 2016, Mrs Staniland attending a meeting with Mr Mitchell, Mr Moodie and Ms Christie, during which she was advised by Mr Mitchell that the restructure would be introduced following a new full-time employee commencing at the Kotara showroom, the effect of the restructure was her job would be made redundant and her employment would be terminated if she did not accept the offer to take up the full-time role. In addition, it was made clear to Mrs Staniland that she could avert her employment being terminated if she decided to accept the full-time role that had been offered to her on 24, 27, 31 October 2016 and 3 November 2016. Further, on 15 December 2016, Mr Mitchell sent an email to Mrs Staniland providing her with an update to the effect that the introduction of the changes was envisaged to happen in about late-January or early-February 2017.

[31] The discussions on 3 November 2016 also provided Mrs Staniland with a response to the matters raised in her email sent at 4:50pm on 2 November 2016 to Mr Mitchell, raising a number of matters regarding the changes and her suggestions concerning alternate staffing structures, including replacing Mr Baker’s role of Sales Representative or employing someone to work two days per week on Tuesdays and Thursdays when she was unable to work. Mr Mitchell responded to this email on 2 November 2016 at 5:07pm in which he also thanked Mrs Staniland for her input.

[32] In emails dated 24, 27, 31 October 2016 and 2 November 2016, Mr Mitchell provided Mrs Staniland with information regarding the proposed change of replacing her casual position with a full-time position at the Kotara showroom. In an email dated 16 February 2017, Ms Taylor confirmed with Mrs Staniland what she had been advised during the meeting on 3 November 2016 that the effect of the proposed changes would result in her casual position being made redundant when a person was employed into a full-time role. 32

[33] Following the consultation that occurred in late-2016, Mr Mitchell gave evidence, which I accept, that due to the claims raised by Mrs Staniland in early-2017, as set out in paragraph [21(c)] above, he decided to delay the implementation of the restructure at the Kotara showroom.

[34] There was then further consultation with Mrs Staniland on 29 May 2017 during a meeting with Ms Taylor. Ms Jodi Halliwell, OHS – Coordinator, also attended as a witness for Stegbar and Mr Staniland attended as a support person for Mrs Staniland. Ms Taylor gave evidence, which I accept, that during the meeting she advised Mrs Staniland that her position would be made redundant and provided Mrs Staniland with a list of current positions available within the JELD-WEN group of companies. Ms Taylor asked Mrs Staniland whether she had any questions, to which Mrs Staniland replied “no”. Ms Taylor then advised Mrs Staniland that she had some time to review the list of available positions and consider any further questions she may have. A further meeting was scheduled on 31 May 2017. 33

[35] On 31 May 2017, Mrs Staniland attended a further meeting with Ms Taylor, Ms Halliwell and Mr Staniland. 34 Ms Taylor gave evidence, which I accept, that during the meeting Mrs Staniland did not raise any new matters. Mrs Staniland informed Ms Taylor that she was not interested in any of the jobs on the list of vacant jobs given to her on 29 May 2017. Ms Taylor then advised Mrs Staniland that her job of casual Office Assistant/Administrator was redundant and as a result her employment would be terminated.35 I accept Ms Taylor’s evidence that she did not have a termination letter prepared prior to the meeting on 31 May 2017 because she did not know what matters would be raised by Mrs Staniland or what discussions would take place on that day in relation to the list of vacant positions or any other matter. At the meeting on 31 May 2017 Mrs Staniland insisted on receiving a redundancy letter, which Ms Taylor then prepared.

[36] Based on the facts and matters set out in paragraphs [29] to [35] above, I am satisfied that Stegbar complied with the obligations in the Clerks Award to consult with Mrs Staniland about the redundancy of her job.

Was it reasonable in all the circumstances for the person to be redeployed within the employer's enterprise or the enterprise of an associated entity of the employer (s.389(2))

[37] For the purposes of section 389(2) of the Act, the Commission must consider 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 employee. There must be an appropriate evidentiary basis for such a finding. 36 The word “redeployed” in section 389(2) of the Act should be given its ordinary and natural meaning, which is to “transfer to another job, task or function”.37

[38] If an employer wishes to rely on the “genuine redundancy” exclusion in section 389 of the Act, then it would ordinarily be expected to adduce evidence, on the question of redeployment, as to 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 employee. Such evidence would usually include the steps taken by the employer to identify other jobs, positions or work which could be performed by the dismissed employee. 38

[39] Whether it would have been reasonable in all the circumstances for the person to be redeployed directs attention to the circumstances which pertained when the person was dismissed. 39 However, the circumstances leading up to the time the employee was dismissed may, in particular cases (such as where there has been a redeployment period for an employee prior to their dismissal), be relevant to a determination of whether it would have been reasonable in all the circumstances for the employee to have been redeployed.40

[40] In determining whether redeployment would have been reasonable a number of matters may be relevant, including:

(a) whether there exists a job or position or other work to which the employee can be redeployed; 41

(b) the nature of any available position; 42

(c) qualifications required to perform the job; 43

(d) the employee’s skills, qualifications and experience. The employee should have the skills and competence required to perform the role to the required standard either immediately or within a reasonable period of retraining; 44 and

(e) the location of the job in relation to the employee’s residence and the remuneration which is offered. 45

[41] 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. 46

[42] It is important, however, to appreciate that, because there is a requirement to assess the reasonableness of redeployment “in all the circumstances”, it is not possible to establish binding or decision rules concerning the application of section 389(2) of the Act in all cases; the circumstances of each particular case must be considered. 47

[43] Ms Taylor gave evidence, which I accept, that at the time Mrs Staniland’s job was made redundant she conducted a review of all available positions within the JELD-WEN group of companies in an attempt to identify any suitable positions to which Mrs Staniland could be redeployed. This involved Ms Taylor printing off a list of positions that were advertised on JELD-WEN’s intranet as currently available within the JELD-WEN group of companies. Further, Ms Taylor made phone calls to the General Manager of Regency, Newcastle and the General Manager of Trend Windows, Newcastle to enquire whether there were any job opportunities coming up in their respective showrooms or branches that had not yet been published on JELD-WEN’s intranet. Ms Taylor was advised by both General Managers that there were not. As a result, Ms Taylor formed the view that the list of available positions she printed from JELD-WEN’s intranet was an accurate record of all the positions to which Mrs Staniland could be redeployed within the JELD-WEN group of companies.

[44] It is not disputed between the parties that during the consultation meeting on 29 May 2017 Ms Taylor gave Mrs Staniland a copy of the list of available positions within the JELD-WEN group of companies. Mrs Staniland did not ask Ms Taylor any questions regarding the list or any other redeployment opportunities during the meeting. At the next consultation meeting on 31 May 2017 Mrs Staniland advised Ms Taylor that she was not interested in any of the positions on the list provided to her on 29 May 2017.

[45] Mrs Staniland submits that Stegbar did not comply with its redeployment obligations under s.389(2) of the Act for the following reasons:

(a) the list of available positions did not include any administration positions or positions in Newcastle;

(b) it would have been reasonable for her to have worked remotely from home providing estimating duties for other showrooms; and

(c) it would have been reasonable for her to be redeployed to the Newcastle showrooms of Trend Windows or Regency. 48

[46] I am satisfied that it would not have been reasonable in all the circumstances for Mrs Staniland to be redeployed within Stegbar’s enterprise, or an enterprise of an associated entity of Stegbar, for the following reasons:

(a) I am satisfied that the list of available jobs provided to Mrs Staniland during the meeting on 29 May 2017 was an accurate record of all positions available at that time within the JELD-WEN group of companies. I am also satisfied that the companies within the JELD-WEN group of companies included all the associated entities of Stegbar. Mrs Staniland accepts that the available positions on the list given to her were not suitable to her, which is not surprising given the list did not include any administrative positions in the Newcastle region; and

(b) I am satisfied that Mrs Staniland did not raise with Stegbar the potential for her to work remotely from home undertaking estimating duties. Notwithstanding this, I accept Ms Taylor’s evidence that if Mrs Staniland had made this request it would not, and could not reasonably, have been accepted by Stegbar because there was no business need to have an employee undertaking such work remotely from home. Stegbar needed two full-time employees working from the Kotara showroom.

Conclusions

[47] I am satisfied that Mrs Staniland’s dismissal was a case of genuine redundancy within the meaning of s.385 of the Act, with the result that Mrs Staniland was not unfairly dismissed. I therefore dismiss Mrs Staniland’s unfair dismissal application.

COMMISSIONER

Appearances:

Mr R Staniland for the applicant.

Ms J Gilbert of Timber Trade Industrial Association for the respondent.

Hearing details:

2017.

Newcastle:

September 1.

 1   Jones v Department of Energy and Minerals (1995) 60 IR 304 (Jones) at 308 per Ryan J; applied in Ulan Coal Mines Limited v Howarth [2010] FWAFB 3488;(2010) 196 IR 32 (Ulan Coal 1) at [17]

 2   Ibid

 3   Ibid

 4   Dibb v Commissioner of Taxation (2004) 136 FCR 388 at 404-5

 5   Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt[2010] FWA 674 at [27] per Hamberger SDP

 6   Ex A1 at [57]

 7   Ex R1 at [2]

 8   Ex R2 at [5]; Ex A2 at attachments A4-A8

 9   Ex R1 at [8]-[10]

 10   Ex A2 at attachment C9

 11   Ex A2 at attachment C8 and C9

 12   Ex A2 at attachment C8

 13   Ex A2 at attachment C7

 14   Ex A2 at attachment C6

 15   Ex R1 at [13]

 16   Ex A2 at attachment C23

 17   Ex R1 at [17]

 18   Ex A2 at attachment C1

 19   Ex R1 at [7]; Ex A4 at [15]

 20   Ex A2 at [7], [18]-[19]; Ex A4 at [2]

 21   Ex A2 at [2], [21]

 22   Ex A3 at [17]

 23   Ex A3 at [8], [15]; Ex A4 at [3]-[9]

 24   Ex A3 at [19]

 25   Ex A2 at [21]; Ex A4 at [3]

 26   Ex A2 at attachment

 27   Ex A3 at [14]

 28   Ex A3 at [4], [8]

 29   See, for example, Ex A2 at C4

 30   Ex R2 at [6]

 31   Ex A2 at attachment C2

 32   Ex R5 at exhibit B

 33   Ex R2 at [13]-[14]

 34   Ex R2 at [15]

 35   Ex R2 at “MT1”; Ex R4 at cl.8

 36   Technical and Further Education Commission T/A TAFE NSW v Pykett[2014] FWCFB 714; (2014) 240 IR 130 (TAFE ) at [36]

 37   Ibidat [25]

 38   Ibid at [36]-[37]; Teterin & Ors v Resource Pacific Pty Limited t/a Ravensworth Underground Mine[2014] FWCFB 4125; (2014) 244 IR 252 (Teterin) at [28]-[29]

 39   TAFE at [24] & [35]; Ulan Coal Mines Ltd v Honeysett[2010] FWAFB 7578; (2010) 199 IR 363 (Ulan Coal 2) at [28]

 40   Bhalla v Welltech Total Water Management[2014] FWC 7565 at [55]

 41   Ulan Coal2 at [28]

 42   Ibid at [28]

 43   Ibid at [28]

 44   Ibid at [28] & [34]

 45   Ibid at [28]

 46   Ibid at [34]

 47   Teterin at [35]

 48   Ex A4 at [11]

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