Mark Kensley v Peninsula Curtains

[2019] FWC 5743

[2019] FWC 5743

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Kensley
v
Peninsula Curtains
(U2019/3955)

COMMISSIONER BISSETT MELBOURNE, 20 AUGUST 2019

Application for an unfair dismissal remedy – jurisdiction – genuine redundancy – whether consultation requirements met - application dismissed.

[1] Mr Mark Kensley (Applicant) has made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal. Mr Kensley was employed by Wasilij Nominees Pty. Ltd. T/A Peninsula Curtains (Respondent). Mr Kensley commenced employment with the Respondent in 2011. His employment was terminated on 27 March 2019.

[2] The Respondent says that the termination of Mr Kensley’s employment was a genuine redundancy. Further, it submits that it is a small business and the Small Business Fair Dismissal Code (Code) applies.

[3] The application was subject to conciliation where it failed to settle. The matter was heard by me, with the agreement of the parties, by way of a determinative conference.

[4] Mr Kensley represented himself. The Respondent was represented by Ms Breana Leak of the Respondent.

THE LEGISLATION

[5] Section 396 of the Fair Work Act 2009 (FW Act) sets out those matters that must be considered prior to the merits of the case being considered. Section 396 states as follows:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[6] In this case the Respondent says that the dismissal was a genuine redundancy and that the Code applies as it is a small business.

[7] There is no dispute and I am satisfied that the application was made within the period of time specified in the FW Act and the Applicant is a person protected from unfair dismissal.

[8] The FW Act does not say which of s.396(c) and (d) should be considered first. To the extent that it will settle the matter if it was, in fact, a genuine redundancy I have decided to consider that matter first.

[9] Section 385 of the FW Act states that:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[10] If the dismissal was a genuine redundancy or if it was consistent with the Code it follows that the Applicant was not unfairly dismissed.

GENUINE REDUNDANCY

[11] The meaning of “genuine redundancy” is set out in s.389 of the FW Act. Section 389 of the FW states 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.

Submissions

[12] Ms Leak for the Respondent said that following the normally busy period leading up to Christmas 2018, post-Christmas it discovered a major cash flow problem. Meetings with its legal representatives began a consideration as to whether the business should close or could continue to trade but on a reduced staffing.

[13] Ms Leak said that the Applicant commenced annual leave on 28 January 2019, prior to the Respondent reaching a decision that it could continue to operate but would need to reduce staff. Ms Peak said staff were advised of the considerations of the Respondent in February 2019. As a result of this two staff left voluntarily (Ms Amanda Garoni, Financial Advisor, left on 28 February 2019 and Ms Nicola Dowell left on 15 February 2019), some other staff moved to part-time work and some took reduced pay.

[14] Ms Leak said that the Applicant had a work issued mobile phone and attempts were made by the Respondent to contact him on that number in February 2019 but he did not return any of the calls.

[15] Ms Leak said that the Applicant was due to return to work at the end of February 2019 but extended his leave. She said that he was then due to return from leave on Monday 25 March 2019 but did not return until Wednesday 27March 2019. For a reason not understood by Ms Leak or anyone else the Applicant remained at work for less than an hour (arriving at about 7.30am, his normal start time) when he left and did not return that day or again. Further, he did not contact the Respondent and attempts to contact him were not successful.

[16] For this reason Ms Leak said the Respondent did not have an opportunity to talk to the Applicant about changes at the business. The Respondent therefore determined to send the Applicant a letter by registered mail advising him that his position had been made redundant.

[17] The Applicant was employed as a Fitter (in that he hung rods etc. on which curtains and blinds were then hung). Prior to the redundancy, the Respondent had employed two on-going Fitters (including the Applicant) and a contractor that it used for overflow work. Whilst it had engaged an additional Fitter prior to Christmas this had only been to deal with the pre-Christmas rush. Ms Leak said that, post the decision to make the Applicant redundant the Respondent now only had one on-going Fitter. The contractor has done very little work for the Respondent since the Applicant was made redundant.

[18] Ms Leak said that the Applicant’s work phone number was disconnected from his use about two weeks into his leave. She said the Respondent tried to contact the Applicant to get the phone returned as customers were using that number to contact the Respondent and not receiving any reply to their calls. As the Applicant would not return any phone calls from the Respondent, the Respondent had little option but to disconnect its telephone number from the handset held by the Applicant and connect the number to an alternative handset held by the Respondent.

[19] The Respondent agreed that the Applicant’s employment was covered by the Manufacturing and Associated Industries and Occupations Award 2010.

[20] The Applicant said that he proceeded on leave on 28 January 2019 for four weeks. He said that about two weeks into his leave his work phone was disconnected.

[21] Towards the end of his leave the Applicant’s nephew (who also worked for the Respondent) contacted him and said Amanda Garoni had asked if the Applicant could take a further four weeks of his annual leave. The Applicant agreed to do so. The Applicant said that he advised Ms Garoni that he would take an additional two days (beyond the four weeks) as there were public holidays in the period of his leave and he did not want to lose days of leave by the public holiday. The Applicant was not clear on when he had this conversation with Ms Garoni.

[22] The Applicant said that he returned to work on Wednesday 27 March 2019. He said he saw the Production Manager who said she had no work for him. The Applicant said he went and sat in the tea room until about 8.30am when he decided to go home. He did not tell anyone that he was leaving the workplace.

[23] Late in the day of 27 March 2019 the Applicant was told by Sharon, his friend (who was listed as an emergency contact for him) that the Respondent was trying to contact him. The Applicant said he did not contact the Respondent in reply and did not go into work on 28 or 29 March 2019. He gave the Commission no explanation for not attending work.

[24] The Applicant agreed that he received a notice of his redundancy by post on 29 March 2019.

[25] The Applicant said that he does not believe he should have been made redundant, that others should have been made redundant and that he should have been offered the work given to the contractor. Further, he said that if he had returned to work at the end of his initial period of leave (25 February 2019) he could have been involved in discussions on how to re-arrange work so that he might have kept his job.

[26] For these reasons the Applicant says that the termination of his employment was not a genuine redundancy.

Consideration

Was the Applicant’s job no longer required to be done by anyone?

[27] I am satisfied on the basis of the submissions and material provided by the Respondent that the Respondent no longer required the services of more than one Fitter. In this regard I accept that there was a reduction in demand for Fitters and that the Respondent redistributed the work to the one Fitter who remains in employment.

[28] The Applicant appeared to accept this proposition but was more concerned that the other Fitter should have been made redundant and not him. The process by which a person is selected for redundancy is, however, not a relevant consideration of the Commission in determining if the dismissal was a genuine redundancy.

Did the employer comply with the consultation obligations in the relevant Award?

[29] I am satisfied that the Respondent attempted to consult with the Applicant but that the Applicant did not respond to attempts to contact him. Further, when the Applicant returned to work from his annual leave he remained in the workplace for less than an hour before leaving and not returning. He left with no advice as to where he was going or when he would be back.

[30] An employer can only do what is reasonable in the circumstances to attempt to consult on changes at work. Whilst it is unfortunate that the Applicant in this case was disturbed while he was on annual leave he had no cogent reason for not responding to the attempts to contact him by his employer. Further, on his return to work from his annual leave he had no reason for leaving the workplace on 27 March 2019 (putting aside if his leave had been approved to that date) and not returning on 28 or 29 March 2019 when he could have engaged in discussions with his employer. The Applicant may have some reasonable argument that he should have been allowed to return to work on 25 February 2019 and been involved in discussions about his future but he ignored attempts to contact him and then, when he could have engaged in some discussions (on 27, 28 or 29 March 2019) he left the workplace and did not return. The Applicant must take his share of the responsibility for any failure to be consulted.

[31] An employer should not be found to have failed to consult in circumstances where attempts to do so have been thwarted by the employee concerned. The Respondent took steps to consult with the Applicant but he did not engage with those attempts.

[32] For these reasons I am satisfied that the Respondent took reasonable steps to consult and fulfil its obligations under the relevant Award. Whilst there may have been more the Respondent could have done (such as writing to the Applicant early in the process) I am satisfied that, on the basis of the circumstances in this case, the Respondent did enough to satisfy the provisions of the FW Act.

Was redeployment reasonable

[33] The Applicant says that he could have been given the work the contractor was doing.

[34] The Respondent says that, at the time of the determinative conference, the contractor had done very little work for the Respondent and it was not consistent work.

[35] Beyond a claim that he could have had the work of the contractor the Applicant provided little material or submissions in support of this. I have therefore accepted the submissions of the Respondent that the contractor has done very little work for it and that the work done has not been consistent. In any event the contractor’s role is not a position of the Respondent that it could have redeployed the Applicant into within the meaning of the FW Act.

CONCLUSION

[36] For the reasons given above I am satisfied that the dismissal of the Applicant was a genuine redundancy. Having reached the requisite satisfaction on this matter I do not need to determine if the business was a small business.

[37] I understand the Applicant believes that he is owed outstanding monies by the Respondent and that this relates to some changes in annual leave. This is not a matter I can determine. I understand the Applicant will raise this with the Fair Work Ombudsman although I again encourage the parties to see if they can resolve this issue through discussions amongst themselves.

[38] Having found that the dismissal of the Applicant was a genuine redundancy it follows, by virtue of s.385 of the FW Act (set out above), that the Applicant was not unfairly dismissed.

[39] The application for unfair dismissal is therefore dismissed. An order 1 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

M. Kensley on his own behalf.

B. Leak for Peninsula Curtains.

Hearing details:

2019.

Melbourne:

August 2.

Printed by authority of the Commonwealth Government Printer

<PR711433>

 1   PR711466.