Lois Joy O'Grady v Royal Flying Doctor Service of Australia (South Eastern Section)
[2010] FWA 4460
•16 JUNE 2010
Note: An appeal pursuant to s.604 (C2010/4227) was lodged against this decision - refer to Full Bench decision dated 17 August 2010 [[2010] FWAFB 6177] for result of appeal.
[2010] FWA 4460 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lois Joy O’Grady
v
Royal Flying Doctor Service of Australia (South Eastern Section)
(U2009/11819)
DEPUTY PRESIDENT LEARY | HOBART, 16 JUNE 2010 |
Application for unfair dismissal remedy
[1] This is an application pursuant to s.394 of the Fair Work Act (the Act) by Lois Joy O’Grady (the applicant) alleging that the termination of her employment by the Royal Flying Doctor Service of Australia (South Eastern Section) (the respondent) was unfair.
[2] The respondent argued that the applicant’s employment was terminated as “the current Launceston Base operations will be restructured” and her position was deemed to be redundant. 1
[3] Accordingly the respondent argued that the termination of employment was a genuine redundancy and, pursuant to s.385 of the Act, the termination was not unfair.
[4] The respondent sought determination of the jurisdiction issue prior to any hearing of the substantive application.
[5] The applicant objected to the respondent using the service of legal representatives.
[6] That matter was dealt with by decision [2010] (FWA1143) which rejected the applicant’s objections.
[7] Accordingly directions were issued and the matter was listed for hearing in Launceston.
[8] This decision addresses the jurisdiction issue only.
[9] Sworn evidence was provided by:
The applicant;
Avinash Kumar, General Manager Human Resources, Royal Flying Doctor Service of Australia, South Eastern Section.
Anthony Mathews, General Manager Aviation, Royal Flying Doctor Service of Australia, South Eastern Section.
BACKGROUND:
[10] It was the unchallenged evidence of Mr Avinash Kumar that “the Royal Flying Doctor Service of Australia (RFDS) is a not-for-profit organisation that provides emergency services and health care services in remote and rural areas in Australia. The RFDS is supported by the Commonwealth, State and Territory Governments as well as corporate and private donors.
There are four sections of the RFDS, Central Operations, Queensland Section, South Eastern Section and Western Operations. In addition there are two fund raising entities; the Tasmanian Section and Victorian Section. Each Section of the RFDS is a completely autonomous legal entity with its own Board and Management. Each Section operates independently, both financially and operationally.” Mr Kumar said that “all of the Sections of the RFDS are member organisations of the National Council of the RFDS. The National Council is a purely facilitative body that provides assistance and support to the Sections. It does not exercise any control over the operations of the Sections.” Further Mr Kumar submitted that “the RFDS Eastern Section employs approximately 200 employees including casual employees, pilots, engineers, doctors, flight nurses and administrative personnel.” 2
[11] The applicant was employed on a part-time basis by the RFD Eastern Section as the Base Administration Manager at the Launceston base from 1 May 2006 until her termination for reasons of redundancy on 31 August 2009.
[12] Prior to that period the applicant was employed by the Tasmanian Section in a part-time administration role from 11 September 2001 until taking up her role as Base Administration Manager with the South Eastern Section on 1 May 2006.
[13] It was the unchallenged evidence of Mr Anthony Mathews that following the applicant’s appointment to the position of Base Administration Manager and “under a commercial arrangement between the Eastern Section and the Tasmanian Section the applicant continued to provide some assistance to the Tasmanian Section as a secretary and marketing assistant.” 3
[14] The Tasmanian Section is a fundraising entity. The applicant was employed and paid by the South Eastern Section.
[15] The applicant said in her statement that she was employed by the respondent as the Administrator and Executive Officer of the Tasmanian Section commencing employment on 11 September 2001. She said that in late 2003 she took on the role of RFDS Contract Manager/Base Manager.
[16] The applicant testified that in 2005 the emphasis of her role had shifted “to be managing the contract more than doing work for the Tasmanian Section so it was decided that it made sense that I should be employed by the south-eastern section and that’s what subsequently happened.” 4
[17] She also referred to correspondence of December 2005 which confirmed the creation of a new position of Base Administration Manager with the South Eastern Section. The position was advertised and the applicant applied and was successful and started working in the role of Base Administration Manager for the South Eastern Section effective 1 May 2006. She said that she continued in her role as Executive Officer for the Tasmanian Section.
[18] It was the evidence of Mr Mathews that in July 2007 the Section entered into a significant contract with the Commonwealth Government to supply enhanced medical services to the Bass Strait Islands (the Bass Strait Islands Agreement (BSIA)). In late 2008 he said he became aware of serious issues with the BSIA and measures were being considered to address those issues. He said that in late 2008 it was decided that the Section needed to create a “full-time high level management position based in Launceston” the position would require a “high level of skill and strategic management capabilities.”
[19] Mr Kumar testified that in February 2009 he became aware of discussions to restructure the Launceston Base operations and to create a new role of Base Manager. He understood that Mr Tippett had taken on much of the responsibility for the BSIA but was of the view that there was a need to employ a Manager in Launceston to take over that responsibility. Following a meeting in April 2009 about the management of the BSIA Mr Kumar said the Section commenced developing a position description for the new role of Base Manager.
[20] It was decided that the position would require high level strategic management of the base including the BSIA and the Tasmanian Ambulance Service (TAS) contracts. The new position would include a ‘high and wide’ relationship with the Tasmanian Health Department and both sides of the Tasmanian Government. The creation of the new Base Manager position would result in the applicant’s position becoming redundant.
[21] The applicant discussed her position description and a document she had prepared which compared the functions and requirements under her Base Administration Manager position description with her interpretation of the functions and requirements of the new position of Base Manager. The respondent objected to the document being admitted and the applicant proposed it be admitted but the Tribunal would determine what weight, if any, to be applied to its content. 5
[22] The position description for the new Base Manager position does in fact include some of the functions previously undertaken by the applicant however there is a greater focus for a broad and high level range of skill requirements and experience.
[23] From the applicant’s own document 6 the new Base Manager position description under Qualification/Experience requires:
“Strong management/organisational skills, preferably with a background in overall control of aviation operations or aero medical operations; demonstrated ability to work autonomously in a multi functional environment preferably incorporating aviation or medical activities, demonstrated knowledge of and experience in high level contract administration preferably within an aviation or medical environment; experience/knowledge in related administrative procedures and office functions; ability to bring solutions to problems and issues as they arise and make recommendations to management as necessary; ability to liaise effectively at all levels with a diverse range of people and disciplines both within and outside the organisation; computer literacy, incorporating general software applications; knowledge/experience in aircraft maintenance, engineering, quality assurance and auditing functions; hours 38 contactable 24/7.”
[24] The applicant said that Clause 37.1 of the TAS required the Section to nominate in writing the names of personnel who would fill certain positions, the applicant said that she was nominated as the Base Manager as that position included the contract management position. Further she said that in late 2003 Mr Alan Tippett, General Manager Business Development, asked her to take on the role of RFDS contract manager, base manager which she accepted. 7 It was the applicant’s evidence that this addition to her role involved monthly meetings with the TAS contract management.
[25] The position held by the applicant seems to have been referred to by a number of titles none of which changed her contract of employment. For purposes of consistency I refer to her position as the Base Administration Manager, the title referred to in the contract of employment.
[26] It was the applicant’s evidence that she had become aware that the decision to make her position redundant was made in November, 2008. 8She referred to an email dated 24 November 2008 in which it was proposed there be a discussion about “…..the required skill set for the Launceston position given the requirement to manage the Commonwealth (BSIA) primary health care services together with the administration of the Launceston base…”
[27] It was the evidence of Mr Kumar and Mr Mathews that a decision about the proposed position was not made until April/May 2009. That evidence was not challenged.
[28] The applicant testified that her contract of employment required an annual performance assessment and that she had presumed that the meeting of 19 May was for such purpose. Instead the meeting was to inform her that her position had been made redundant. It was her view that the redundancy was a “fait accompli” and that “there wasn’t much I could say to change it.” 9She was provided with 3 months notice and requested to work her notice period.
[29] She said that there was no discussion about redeployment and she would have been prepared to work full-time had that been on offer. The issue of discussions about her alleged preference for part-time work and whether she would consider full-time work is disputed by Mr Kumar and Mr Mathews.
[30] It was Mr Kumar’s evidence that the applicant was responsible for general clerical and administrative work including the following functions:
• “welcoming people to the base;
• making sure that the engineer was available on time when required;
• ensuring the security of the base;
• sending time sheets and payroll forms for employees employed on the base;
• liaising with the Tasmanian Section of the RFDS;
• liaising with management of the RFDS in relation to issues that arose at the Launceston base; and
• providing clerical support in relation to the provision of information for invoicing for internal and external stakeholders monitored by the Finance department.” 10
[31] The Position Description prescribed the Specific Role, Responsibilities and Duties as follows:
• “manage the day to day functions of the Tasmanian Ambulance Service (TAS) Contract;
• be the first point of contact with on site TAS representatives re contract matters;
• bring to the attention of the Aviation Manager any significant contract matters including any known likely contract breaches;
• participate in regular contract performance meetings with representatives of TAS and progress actions with relevant staff;
• liaise closely with Senior Base Pilot, Engineering manager and other staff re contract compliance and base related matters;
• reconcile with TAS the monthly flights and penalties; assist in the preparation of base budgets;
• attend airport Environment, Emergency and Security Committee meetings on behalf of the respondent;
• other duties as required.” 11
[32] There were further specific tasks associated with the Tasmanian Section (the fundraising entity).
[33] Mr Kumar testified that the applicant was not responsible for making management decisions in relation to the running of the base or for the management of employees.
[34] He said that he met with the applicant on 19 May 2009 to advise her of the restructure and that her position would be redundant. He also said he advised that redeployment was not an option as there were no administrative or other suitable positions available within the Section.
[35] It was his evidence that he told the applicant he was available to discuss any queries she may have had, explained that she would receive 3 months paid notice and that the Section wanted her to work out her notice period.
[36] He said he heard nothing from the applicant until late July 2009 when he was made aware of a letter to the Executive Director regarding her termination.
[37] Mr Kumar listed the differences between the position held by the applicant and the new role of Base Manager. He said that the responsibility and accountability of the position is reflected in the salary offered, it required a much higher skill base and was a full time position. The incumbent was required to have strategic management skills and experience and would be responsible for liaising with the Tasmanian Government and the Ambulance Service on multiple levels as well as managing the BSIA previously managed by Mr Tippett and external consultant Sue Morey.
[37] Redeployment was considered but Mr Kumar, who is responsible for all recruitment within the Section, said that there were no part-time vacancies, which he said was the choice of the applicant, within the Section in Tasmania or within the Section generally which would require the skills, qualification and experience of the applicant. He said there were no vacant Base Administration Manager positions and no part-time administration roles suitable to the applicant’s skills and experience. It was his evidence that the applicant did not have the required skills or experience required of the new Base Manager position.
[38] It was the evidence of Mr Mathews that when he commenced in the position the applicant was employed in a part-time administration role with the Tasmanian Section of the RFDS and she reported directly to him in respect to the administration of the Launceston Base operations. He said that the Tasmanian Section is a fundraising entity only and is not an operational entity.
[39] He said that the applicant applied for and was successful in being appointed to the position of Base Administration Manager in May 2006 where she was responsible “with the every day running of the Launceston base.”
[40] Mr Mathews said that in May 2009 it was decided to create a new position of Base Manager and it was determined that the applicant’s position would become redundant. He also listed the differences between the role of Base Manager and the role performed by the applicant stating that a number of the functions were new and had not previously been undertaken by the Section and some functions had previously been performed by Mr Tippett.
[41] Further he said that the support to the Tasmanian Section, previously provided by the applicant, is now performed by a dedicated marketing manager. He also said that he was less involved in the day to day running of the Launceston base as more responsibility has been taken on by the new Base Manager who is working “a lot more closely with the ambulance service….and working more closely in conjunction with the Commonwealth contract (BSIA) to ensure that it is flowing smoothly.” 12
[42] The Base Manager has also picked up some of the roles previously undertaken by Mr Tippett related to the TAS contract as well as negotiations with politicians which is new work not previously performed by anyone. 13Mr Mathews said the decision to make the applicant’s position redundant was made 2 or 3 days prior to meeting with her on 19 May 2009. 14He said it had been determined that the new Base Manager would run and manage the BSIA contract, the TAS contract, run the base and manage marketing.
[43] It was determined by the respondent that the applicant would not be capable of performing the role of Base Manager as she did not have the strategic management skills required.
THE STATUTORY CONTEXT:
[44] S.385 What is an unfair dismissal::
“A person has been unfairly dismissed if FWA 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.”
S.389 Meaning of genuine redundancy::
“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.”
[45] The Explanatory Memorandum states 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.”
CONSIDERATIONS:
[46] The applicant argued that her position was not redundant and that she had been “replaced by someone with a larger skill set.” 15She said that there were some differences between the roles but that the applicant was performing many of the roles of the new position which are substantially the same as those required of the now redundant position. It was conceded however that some of the applicant’s roles are now performed by persons other than the Base Manager and there are “more functions” for the Base Manager in the new role. 16
[47] The applicant referred to the decision of Commissioner Raffaelli in Howarth & Ors v Ulan Coal Mines Limited [2010](FWA 167) where he found that the “dismissals of the ten applicants can not be said to have arisen because Ulan no longer wanted the jobs performed by the applicants performed by anyone……..the dismissals were not cases of genuine redundancies.”
[48] A Full Bench of FWA [2010] (FWAFB 3488) in considering an appeal against the decision of the Commissioner said:
“…….we have decided to allow the appeal. On the evidence and material before the Commissioner and the appeal bench, the requirements in both paragraphs (a) and (b) of s.389(1) of the Act have been met.”
[49] There is a contradiction in the evidence as to matters discussed between the applicant Mr Kumar and Mr Mathews regarding whether the applicant preferred or wanted to work full or part-time. The evidence is not relevant to my considerations so I need make no finding as to which evidence I prefer.
[50] The applicant agreed that a number of the functions she had been performing are now done by persons other than the new Base Manager.
[51] The respondent argued that s.389(1)(b) of the Act is not a relevant consideration in this matter as the applicant was not covered by an enterprise agreement or a modern award.
[52] In respect to s.398(2)(a) Mr Kumar provided evidence, which was not contradicted, that he had taken steps to determine whether there were any vacant positions within the Section available for the applicant, it was his evidence that no vacancies existed. Section (2)(b) is not relevant as the unchallenged evidence of Mr Kumar is that there is no associated entity.
[53] The applicant maintained her view that she had been only replaced by a person with “higher skill sets”, that her position was not redundant and that the respondent should have maintained her position and employed either a consultant or another employee “with a higher skill set to deal with some of the contract management and the high strategic roles….” 17
[54] The test the Tribunal needs to consider is whether the position held by the applicant still exists not whether the tasks and duties are still being performed. The explanatory memorandum at para 1548 clearly states that where the duties of a previous position are distributed to other positions that a genuine redundancy still exists. The memorandum states:
“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.”
[55] In this application the respondent needed, amongst other things, to address serious issues surrounding the BSIA and determined that it would be appropriate and efficient to restructure the then employment arrangements and positions.
[56] Some of the duties and tasks previously performed by the applicant are now included in the position description of the new Base Manager position, the new position includes work not previously performed by anyone, functions previously undertaken by other employees and management and the position requires a much higher skill set as was acknowledged by the applicant. The new position of Base Manager is a different position to that of the Base Administration Manager.
[57] Having considered the evidence and submissions in this matter I am of the view that the termination of the applicant’s employment was a genuine redundancy in accord with and as provided by the Act.
[58] The application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr J Astley for the Applicant
Ms R Bernasconi for the Respondent
Hearing details:
2010
Hobart
March 1
1 [Letter of termination dated 19 May 2009]
2 [Exhibit R2 paras 3, 4, 6 and 10]
3 [Exhibit R1, para 10]
4 [PN121]
5 [PN 292-311]
6 [Exhibit A14]
7 [PN111]
8 [PN144]
9 [PN185]
10 [Exhibit R2 para 12]
11 [Exhibit R1 attachment AK2]
12 [PN479]
13 [PN480]
14 [PN515]
15 [PN244]
16 [PN775]
17 [PN887]
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