MacLeod v Alcyone Resources Ltd T/A Alcyone
[2014] FWCFB 1542
•4 MARCH 2014
[2014] FWCFB 1542 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Alcyone Resources Ltd T/A Alcyone
(C2013/7008)
VICE PRESIDENT CATANZARITI | SYDNEY, 4 MARCH 2014 |
Appeal against decision [[2013] FWC 9311] of Deputy President McCarthy at Perth on 28 November 2013 in Matter Number U2013/9693.
[1] This is an appeal by Ms MacLeod against an order 1 (Order) and a decision2 (Decision) of Deputy President McCarthy in relation to an application made by Ms MacLeod under s.394 of the Fair Work Act 2009 (the Act).
[2] Ms MacLeod commenced work with Alcyone Resources Ltd T/A Alcyone (the Respondent) on 15 June 2011 and was employed there until her employment was terminated, on a redundancy basis, on 30 April 2013. She had been employed as an executive assistant to the Managing Director of the Respondent.
[3] While the Respondent alleged that Ms MacLeod’s employment came to an end due to a redundancy, Ms MacLeod filed an application for unfair dismissal remedy with the Fair Work Commission (the Commission) alleging that she was unfairly dismissed by the Respondent.
[4] Deputy President McCarthy issued the Decision and Order on 28 November 2013 in which he found that the dismissal was not unfair, and dismissed Ms MacLeod’s application.
[5] Prior to the scheduled hearing for this appeal, both Ms MacLeod and the Respondent sought permission to be represented by lawyers in the proceedings. Having formed the view that allowing representation would enable the matters to be dealt with more effectively, the Commission corresponded with the parties on 30 January 2014 informing them that both parties’ had been granted leave to be represented.
[6] Subsequently, however, the Respondent’s lawyers sent a letter to the Commission informing the Commission that, without conceding the correctness of any grounds of appeal, the Respondent did not intend to appear in the appeal. Thus, the Respondent’s lawyers were no longer instructed in the matter and filed a Notice of Representative Ceasing to Act.
[7] Following this, the Commission corresponded with Ms MacLeod’s representative, requesting that, in light of the Respondent’s intention to not appear at the hearing, Ms MacLeod confirm whether or not there were any objections to the matter being dealt with on the papers. On 12 February 2014, Ms MacLeod’s representative confirmed that there were no objections to the matter being dealt with on the papers.
Background
[8] The factual background of Ms MacLeod’s dismissal was briefly summarised by Deputy President McCarthy in the Decision below as follows:
“[2] Between March and May 2013, the [Respondent] underwent a restructure of its Board and the office team in Perth. The restructure included the resignation of all previous Board members and the appointment of a new Board. On 13 March 2013, Mr King resigned as Managing Director of the Company. The Company subsequently operated without anyone in the position of Managing Director until Mr Michael Reed (Mr Reed) was appointed to that position on 22 April 2013.
[3] Around 22 March 2013 the new Board decided the position of Executive Assistant was no longer required and that no-one was needed to perform that role. On 2 April 2013, Mr Trevor Harris (Mr Harris), the Chief Financial Officer, informed the Applicant that her position was redundant and as there were no other suitable positions for her to be redeployed to, her employment would be terminated. The Applicant was informed that her dismissal would take effect on 23 April 2013, although it seems the dismissal actually took effect on 30 April 2013.”
[9] Ms MacLeod gave evidence that on 2 April 2013 she had met with Mr Harris and was told that her position was redundant and that another employee (Ms P Ryan) would be taking over her duties. Ms MacLeod claimed that she was told that Ms Ryan would be increasing her working hours from 0.8 FTE to full time and that the Respondent would be employing a junior receptionist to assist Ms Ryan in her expanded role, and that these measures were being taken to reduce the employer’s costs. It was clear from the evidence that the junior receptionist role involved a salary that was significantly less than Ms MacLeod’s salary in her role as executive assistant.
[10] The Deputy President found that it was clear that Ms MacLeod was fully aware that a junior receptionist position was being created and that a ‘junior employee’ would be employed in that position. Deputy President McCarthy further found that the evidence established that Ms MacLeod never raised with the Respondent that she be considered for the position, nor did Mr Harris ever say to the Applicant that she should not register an interest or apply for the position.
[11] Mr Harris gave evidence that he considered alternative positions within the organisation for Ms MacLeod but could not find anything suitable. He asserted that he was of the view that the junior receptionist role would be unsuitable for Ms MacLeod given her previous salary and role, and that he showed more respect to Ms MacLeod by not offering the position to her than he would have by offering her the position.
[12] In relation to any consultation between Mr Harris and Ms MacLeod with respect to her redundancy, the Deputy President found as follows:
“[23] Mr Harris had not discussed the upcoming redundancy with [Ms MacLeod] prior to a decision to dismiss her, did not consult with her about the potential for her to be redeployed and had no discussion with the Applicant prior to the meeting on 2 April 2013 where the Applicant was given her termination notice.”
[13] Section 389 of the Act provides:
“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.”
[14] The Deputy President found that it was not in dispute that s.389(1)(a) was satisfied, but even if it were in dispute that he would find that s.389(1)(a) was satisfied. With respect to s.389(1)(b), however, he said:
“[33] The modern award that is asserted to apply is the Clerks Private Sector Award 2010 (the Clerks Award). The Company [the Respondent], at one point, said it made no submission as to whether the Clerks Award did apply and at another point conceded that it did. I find that that the Clerks Award covered and applied to the Applicant whilst she was employed by the Company.
[34] The Clerks Award provides that where an employer has made a definite decision to introduce major changes that are likely to have significant effects on employees, the employer must notify the employees likely to be affected (Clause 8.1(a)). Major change is defined to include termination of employment (Clause 8.1(b)). The employer must also discuss the introduction of the changes and measures to avert or mitigate the adverse effects of the changes.
[35] Clearly the Company was obliged to consult the Applicant [Ms MacLeod]. The question here is whether the Company fulfilled that obligation.
[36] The submissions of the Company stated that the decision to dismiss the Applicant was made on 22 March 2013. The submissions also stated that between 22 March 2013 and 2 April 2013, Mr Harris considered whether there were any other suitable positions available that the Applicant might be redeployed to. There is no suggestion that there was a consultation with the Applicant about the decision, rather the Applicant was advised of the decision on 2 April 2013.
[37] Mr Harris, rather than advising the Applicant immediately after the decision on 22 March 2013, decided to explore alternative employment opportunities for the Applicant within the enterprise. He then decided that there were no alternative positions and proceeded to inform the Applicant of the outcome of his considerations. Mr Harris did not inform the Applicant of his considerations and how he arrived at his conclusions in that regard. It was reasonable for Mr Harris to explore employment alternatives before entering into discussions with the Applicant about the redundancy. However, it would also be reasonable to involve the Applicant in those explorations and potential alternatives at some point.
[38] The Company thus, through Mr Harris, made all the decisions without consultation and also made decisions about alternative positions that may have been suitable to redeploy the Applicant into without involving the Applicant at all. By dealing with the process in this manner the Company was making decisions in effect on behalf of the Applicant without any of her views being known to them or her having any opportunity to influence those views. Had the Applicant been given that opportunity she may have informed the Company that the junior receptionist position was not suitable or she may have informed them that it was. The Company would then have been in the position of making a decision, with that knowledge, whether the position was suitable or was not suitable.
[39] I am sure that Mr Harris had the best of intentions of not offending the Applicant, but the obligation under the Clerks Award is to canvass alternatives to dismissal and anything which may avert or mitigate the effects of the redundancy. Whilst it may not have been obvious to Mr Harris given that the Applicant often did perform some of the tasks involved and the nature of the work of the position, it was possible that the junior receptionist position may have been suitable. The obligation here then involved giving the Applicant the opportunity to have an input into the decision as to whether the alternative position was suitable.
[40] Taking all of the above matters regarding the obligations under the Clerks Award, I find that the Company did not fulfil the obligations under the Clerks Award to consult the Applicant.
[41] Therefore the requirements of s.389(1)(b) were not met. The dismissal therefore was not a genuine redundancy.
[42] As the dismissal was not a genuine redundancy, it is not necessary for me to consider whether it would have been reasonable in all the circumstances for the Applicant to be redeployed within the Company’s enterprise for the purpose of determining whether the Applicant was excluded from making an unfair dismissal application by operation of s.385(d) of the FW Act.”
[15] Having found that Ms MacLeod’s dismissal was not a genuine redundancy, the Deputy President continued to consider whether or not the dismissal was unfair.
[16] Section 387 of the Act provides the criteria that must be considered in determining whether a dismissal was harsh, unjust or unreasonable:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[17] In determining whether or not the dismissal was unfair, the Deputy President found as follows:
“[43] ... The question that arises is whether, by not offering the junior receptionist job to the Applicant, her dismissal was unfair.
[44] The Company asserted the position was not suitable because of the low level duties involved in the position compared to the duties the Applicant had been performing. The higher-level duties of the Applicant were not going to be performed by the junior receptionist, but rather had been reassigned to Ms Ryan.
[45] The Applicant asserted that she was capable of performing the tasks and had performed many, if not all, of those tasks before.
[46] The Company also asserted that the salary was significantly less than the salary the Applicant had been receiving, a reduction from $78,000 per annum to $45,000 per annum.
[47] Whilst the Applicant now asserts that the position was suitable yet at no time during the period she was conscious that her position might become redundant did she make her view known to the Company. The Applicant clearly had reasonable opportunities to make her views known to Mr Harris. Just as Mr Harris did not provide an opportunity to the Applicant to discuss suitability for an alternative position, I consider there was some onus on the Applicant to make it known to Mr Harris that she may consider that position suitable.
[48] The position involved was one in quite a small office where there were only two administrative staff employed and the new Managing Director was located in Queensland with a projected transfer to Perth at the end of 2013.
[49] Taking all of these circumstances into account, I consider that the Company had substantial grounds to form the view that it did that the position was not suitable for the Applicant. I agree with the Company and find the position was not suitable.
[50] There was thus a valid reason for the dismissal, although that reason was not related to the Applicant’s capacity or conduct. Indeed the Company was complimentary of the Applicant’s conduct and performance. Rather, the reason was that the Company had been restructured, the Applicant’s position was made redundant and the Company did not consider the Applicant suitable for a new position that was established.”
[18] Following this, the Deputy President found that there was a valid reason for dismissal but that the dismissal did not relate to conduct, and therefore there was no valid reason for dismissal relating to the capacity or conduct of Ms MacLeod.
[19] The Deputy President proceeded to consider each of the elements of s.387 in turn, finding that Ms MacLeod was notified of the reason for her dismissal and was provided with an opportunity to respond. Further, he found that there was no evidence of a request being made for a support person to be present and that the dismissal was not related to any unsatisfactory performance, that the size of the company’s business did impact the procedures followed and that if the expertise of a dedicated human resource management specialist was available to the Respondent then the consultation requirements of the Clerks Award may have been met, but he “doubt[ed] that it would have changed the outcome.” 3
[20] The Deputy President also considered that Ms MacLeod’s personal circumstances were relevant, as she was at the stage of her career and proximity to retirement that the dismissal had a detrimental effect on her plans and future. Also relevant considerations were the circumstances regarding the Respondent’s reorganisation and endeavours to streamline its administrative functions. After considering all of these factors, the Deputy President found that the dismissal was not unfair and dismissed Ms MacLeod’s application.
The Appeal
[21] The grounds of appeal, as outlined in Ms MacLeod’s written submissions are as follows:
“Errors of Law
(a) Ground 1 - The Commission erred in deciding that the Applicant bore ‘some onus’ to inform the Respondent that she was willing to consider deployment as a Junior Receptionist.
(b) Ground 2 - The commission erred in finding that the dismissal was not harsh on [sic] just or unreasonable in circumstances where his honour also found that there was no valid reason to dismiss the Applicant.
Significant Errors of Fact
(a) Ground 3 - The Commission erred in finding that the Junior Receptionist position was ‘not suitable for the Applicant’.
(b) Ground 4 - The commission erred in finding that, had the Respondent discharged its consultation obligations, consultation would not have changed the outcome when there is clear, uncontradicted evidence that the Appellant would have accepted the Junior Receptionist role and the remuneration associated with it.
(c) Ground 5 - The Commissioner [sic] failed to give reasons for finding that the Junior Receptionist position was ‘not suitable for the Applicant’.”
(footnotes omitted)
[22] Ms MacLeod submits that she was deprived of her right to confer with the Respondent about the options that were available to her, and that she was under no legal burden to convince the Respondent to change its decision. Therefore, Ms MacLeod submits, the Deputy President erred in taking into account the fact that Ms MacLeod did not make it known to the Respondent that she may have considered that the junior receptionist role was suitable for her.
[23] Ms MacLeod abandoned her second appeal point in her written submissions, conceding that there are circumstances in which a dismissal might not be unfair notwithstanding that there is no valid reason for the dismissal that is connected with the employee’s capacity or conduct.
[24] Ms MacLeod further submits that the evidence established that the she was suitable for the junior receptionist role, as she had already performed all of the relevant duties to at least a satisfactory standard, and prior to her dismissal Ms MacLeod had taken advice about her position in the labour market and had concluded that were she to find other employment, her salary would be reduced by as much as $40,000 below what she was earning at the time. Ms MacLeod submits that she would have accepted the junior receptionist role, and that the evidence of the Respondent did not establish that she was unsuitable for the role. Thus, Ms MacLeod submits, the Deputy President was in error in finding that she was not suitable for the position and that the Respondent’s lack of consultation did not affect the final outcome.
[25] Finally, Ms MacLeod submits that the Deputy President did not give reasons for his finding that the junior receptionist position was not suitable, as there was no indication of how the matters he referred to (viz, the relatively low level of the duties involved in the junior receptionist role, Ms MacLeod’s capacity to perform the tasks involved in the junior receptionist role, and the relatively low salary of the junior receptionist role) informed his conclusion.
[26] There were no submissions made in response.
Consideration
[27] In order to grant Ms MacLeod permission to appeal, the Full Bench must be satisfied that it is in the public interest to do so. 4 In GlaxoSmithKline Australia Pty Ltd v Colin Makin5 a Full Bench summarised the concept of public interest in the following terms:
“Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”
[28] We do not consider that Ms MacLeod has in this instance demonstrated that it is in the public interest to grant permission to appeal the Deputy President’s Decision.
[29] Ms MacLeod has alleged that the Commissioner made errors of fact and errors of law. If the error of the decision maker relied upon by Ms MacLeod is an error of fact, then the Full Bench must be satisfied it is a significant error of fact. 6 It is not enough that the Full Bench would have arrived at a different conclusion to that of the original decision maker; the relevant question is whether the finding made by the decision maker was reasonably open to him or her.
[30] We are not satisfied that the Deputy President has made any significant errors of fact in his Decision. It was open to the Deputy President, on the basis of the evidence before him including the evidence and submissions of Ms MacLeod, to come to the conclusion that the junior receptionist position was not suitable for Ms MacLeod. It was also open to him to come to the conclusion that had the Respondent fulfilled its consultation obligations, the outcome would not have been different. It was for the Deputy President to evaluate the evidence before him and we are not satisfied that any significant errors of fact were made that resulted in a finding that was not reasonably open to him.
[31] Further, we are not satisfied that the Deputy President made an error of law in his approach to determining whether or not the dismissal was unfair. We accept that Ms MacLeod was under no legal burden to convince the Respondent to change its decision, but we are not satisfied that the Deputy President was therefore in error by taking into consideration the fact that Ms MacLeod did not make it known to the Respondent that she was willing to consider the junior receptionist role. Having considered Ms MacLeod’s submissions, we are of the view that the Deputy President was entitled to take into account all of the matters that he considered in coming to his decision, and no error is revealed in his approach.
[32] To avoid doubt, we note as a matter of principle that the availability of a more junior role into which the employee could have been redeployed could provide a basis for finding that a redundancy was not genuine, or that a dismissal was harsh, unjust or unreasonable. Each case will turn on its own facts. On the facts of this case, it was open to the Deputy President to conclude that s.389(2) was not satisfied as it was reasonable for the employer to assume that the junior receptionist position was not an appropriate position to consider for redeployment due to its nature, as well as the lack of indication from Ms MacLeod that she was interested in the position.
Conclusion
[33] We are not satisfied that it is in the public interest to grant Ms MacLeod permission to appeal the Decision of the Deputy President at first instance. The conclusions reached by the Deputy President were reasonably open to him, and accordingly, the Full Bench cannot interfere with the decision. 7 Permission to appeal is not granted.
VICE PRESIDENT
1 PR545104.
2 Wendy MacLeod v Alcyone Resources Ltd T/A Alcyone[2013] FWC 9311.
3 Ibid [58].
4 Fair Work Act 2009, s.400(1).
5 [2010] FWAFB 5343 at [27].
6 Fair Work Act 2009, s.400(2).
7 House v The King (1936) 55 CLR 499.
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