Miss Samantha Jones v Judav Investments Pty Ltd trading as Caravilla Motel

[2014] FWC 2982

[2014] FWC 2982

The attached document replaces the document previously issued with the above code on 6 May 2014.

The document has been altered to correct a citation error at Endnote #26.

Dale Ramsey

Associate to Commissioner Stanton

Dated 8 May 2014.

[2014] FWC 2982

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Samantha Jones
v
Judav Investments Pty Ltd trading as Caravilla Motel
(U2013/14223)

COMMISSIONER STANTON NEWCASTLE, 6 MAY 2014

Application for relief from unfair dismissal - jurisdiction - genuine redundancy - operational reasons - consultation - redeployment - application dismissed

[1] This matter concerns an application made pursuant to s.394 of the Fair Work Act 2009 (the Act) by Miss Samantha Jones (the applicant). The applicant commenced her employment with Judav Investments Pty Ltd trading as Caravilla Motel (the respondent) on 17 September 2012. The applicant was a casual employee who worked in the motel as a cleaner and waitress/kitchen hand.

[2] The application relates to the termination of the applicant’s employment from the respondent. The respondent objected to the application on the grounds that the applicant’s termination was a case of genuine redundancy consistent with the provisions of s.389 of the Act.

[3] The applicant contended her dismissal was unfair and not a case of genuine redundancy.

[4] The application was conciliated and no settlement was reached.

[5] Written submissions and statements were filed. Ms Samantha Jones and Mr David Lacey gave evidence and in determining this matter I have had regard to those submissions and the evidence.

[6] The applicant conceded the respondent is a small business.

[7] Both the applicant and the respondent were self-represented. Given the very limited and minimal nature of the material filed by the applicant and the respondent, the hearing proceeded by way of determinative conference.

[8] The evidentiary onus lies with the respondent to establish that on the balance of responsibilities, the applicant's dismissal was a case of genuine redundancy.

The Legal Context – Genuine Redundancy

[9] Sections 385 and 389 of the Act provide:

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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

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.

[10] The Modern award which applied to the applicant’s employment was the Hospitality Industry (General) Award 2010 (the Award). The respondent had an obligation to consult with the applicant about the redundancy as required by Clause 8, Consultation regarding major workplace change:

8. Consultation regarding major workplace change

8.1 Employer to notify

(a) 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.

(b) 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.

8.2 Employer to discuss change

(a) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1, 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.

(b) 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.

(c) 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.

Respondent’s Case

[11] The respondent’s submissions and evidence were largely a rebuttal to the applicant's case. He agreed that that the time of the applicant’s dismissal, he did not consult the Award. 1 However, he had 17 years experience in the motel industry and had employed a lot of staff over the period without any problems.2 He assumed he “was doing the right thing”.3

[12] The respondent’s evidence included copies of time sheets relevant to the applicant’s first week of employment which showed she had worked that week in the motel restaurant. 4 The respondent also contended there was no fixed or set roster governing the applicant as she was employed on a casual basis which was dependent on the occupancy rate of the motel. The roster the applicant believed was a fixed roster was a “guide” issued by the manager to advise staff when they were required to make themselves available to work.5 The words, “12 Month Roster” had been added by the applicant herself.6

[13] The applicant’s position became redundant due to the previous managers, Mr Robert and Mrs Margaret O’Brien deciding to retire. 7

[14] The respondent contended that the decision of Mr and Mrs O’Brien to retire as managers of the motel was the catalyst for the decision to introduce operational changes to the business, particularly the motel restaurant. Mrs O’Brien managed the restaurant and also undertook some cleaning duties.

[15] A new roster introduced on or about 24 September 2013 offered the applicant additional hours of work in the restaurant in response to the imminent retirement of Mrs O’Brien. However, the applicant was unable to accommodate those hours due to other commitments on Wednesday and Thursday nights. 8

[16] The respondent agreed with the applicant that additional staff had been employed in the restaurant following her dismissal on a trial basis. 9 One of those employees had been subsequently employed to replace Mrs O'Brien to operate the restaurant. Mr Lacey was undertaking the applicant’s former waiter/kitchen hand duties to minimise costs as the respondent could only afford to have two persons in the restaurant.10 Mrs Lacey had commenced cleaning duties to also reduce costs.

[17] The respondent contended that following a meeting on 25 September 2013 between the applicant, her partner, Mr O’Brien and himself, the applicant became “hostile towards us” 11 and that he, together with Mr and Mrs O’Brien, felt the work employment relationship had broken down.12

[18] The respondent’s Form F3 - Employer’s Response set out the following chronology concerning its discussions with the applicant which ultimately led to her termination:

17 September 2013

Applicant was informed by management there may be changes to the roster with a reduction in cleaning hours to be offset by an increase in restaurant hours;

23 September 2013

Applicant was informed of the proposed roster changes. Her response was that “she was not happy with this;”

24 September 2013

Applicant was given a copy of the proposed roster. At that time management informed her that she would be doing mainly waitress/kitchen duties under supervision as she had done previously. Cleaning duties would be offered when required. The applicant subsequently asked Mr Lacey to call her.

Mr Lacey subsequently telephone the applicant who informed him that she did not want to change her hours. He replied that if she did not wish to work such hours, he would need to find someone else. Mr Lacey also stated he wanted the applicant to work in the restaurant because she was “good with customers.” In response, the applicant contended Mr Lacey was “sacking me.”

25 September 2013

Mr Lacey agreed to meet with the applicant and her partner. The then motel manager, Mr O’Brien was also in attendance. The meeting was heated. The applicant alleged bullying and harassment. Her partner asked Mr Lacey to state he “was sacking her” to enable prompt access to Centrelink benefits.

Later that day, the applicant told Mr Lacey she could agree to the new roster on the proviso that with notice, she may not be able to work some Wednesday and Thursday nights.

[19] Mr Lacey stated that when he first contacted the applicant to inform her that “there would be no more hours for her because we were changing the way (the motel) operates”, there was no request for any further information other than a request for a reference. The applicant did not ask any questions: 13

“I gave her my reason, which was accepted” 14 and, “...there was no request for a consultation or anything after that”.15

[20] The following exchange subsequently ensued:

THE COMMISSIONER: So the reason was because of the change in the kitchen? It was as simple as that?

MR LACEY: Yes. I had said the change in the way our business is operating.

...

THE COMMISSIONER: Okay. With the employment separation certificate, you haven’t ticked the redundancy box. Normally if an employee’s made redundant you would tick the separation certificate.

MR LACEY: Okay. Well, I just didn’t understand that. I was giving a reason at the bottom, so I could have ticked that I guess but I just gave a reason below, so I ticked that box.

THE COMMISSIONER: Right.

MR LACEY: That was basically – I didn’t even know I needed to give her an employment separation certificate because she was a casual employee. But as advised at the meeting with her partner, they wanted me to tell her that she was sacked so she could go on benefits. 16

[21] Mr Lacey contended there was ultimately no opportunity to redeploy the applicant:

There probably was a possibility but due to the reaction we got from Sam during those last two weeks when we were changing her to the restaurant, it was quite confronting and very hard for Robert and Margaret to work with her from that point on, so there was no chance of deployment due to Sam’s reaction with Robert and Margaret, which became untenable. At one point we were confronted in the office by Sam and her partner, who recorded the conversation and we found it quite aggressive. 17

Applicant's Case

[22] At the outset, it is clear on the limited material before the Commission that the applicant’s financial security relied on her position with the respondent and the loss of her job had caused her much personal and financial distress. 18

[23] The applicant denied her dismissal constituted a genuine redundancy and contended a new roster given to her on or about 24 September 2013 was a unilateral change to her (casual) employment contract:

I was given a new roster with namely restaurant shifts on or about 24 September 2013 with no explanation as to the reasons behind it. I was told, “have a look at this new roster and tell me what you think.” 19

[24] A 12 month roster setting out the days of the week the applicant was to work had been created by the respondent. 20

[25] The applicant argued she was engaged by the respondent as a cleaner and only agreed to assist the respondent with kitchen and restaurant duties shortly after her commencement in 2012 on a temporary basis until other suitable staff could be employed. 21

[26] The applicant stated she had left a hotel job which required her to work split shifts involving night work to work at the motel. 22

[27] The respondent failed to notify her or discuss any proposed workplace change as required by Clause 8, Consultation regarding major workplace change under the Award.

[28] It was the applicant’s case that there was no “organisational restructure” as asserted by the respondent. In that regard, the applicant drew the Commission’s attention to the fact that the respondent had engaged two new employees to carry out certain duties previously undertaken by her in the restaurant. 23

[29] The applicant contended she was neither advised nor given an opportunity to respond to the roster changes announced by the respondent on or about 24 September 2013.

[30] The applicant argued that her substantive position with the respondent was associated with motel cleaning duties and accordingly, she should have been afforded an opportunity to return to that work. 24

[31] The applicant denied her dismissal was performance based. She agreed with Mr Lacey that her work at the motel was of a very high standard. 25

[32] The applicant’s submissions and written materials also focused on the respondent’s obligations under the Small Business Dismissal Code. Other material filed by the applicant related to the merit of her s.394 application which is not subject to these proceedings.

Consideration

[33] At the outset the Commission notes the respondent is a small business. However, the Small Business Dismissal Code does not deal with dismissals in cases of genuine redundancy: Iannello v Motor Solutions Australia Pty Ltd. 26

[34] The Explanatory Memorandum to the Fair Work Bill 2008 relevantly states:

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. (emphasis added)

Operational requirements - Section 389(1)(a)

[35] The respondent’s evidence was that applicant’s position was terminated due to “operational changes.”

[36] On the material before the Commission, the respondent no longer required the job of the applicant to be done by anyone. The cleaning tasks done by the applicant had been distributed between several other employees and therefore her job no longer exists. The restaurant duties had been similarly allocated to others based on the applicant’s initial inability to work the shifts offered and later, her conduct.

[37] The very fact that there had been a redistribution of work did not alter the fact that the applicant’s position, as opposed to the work she previously undertook, was lost as a result of the operational changes implemented by the respondent.

[38] Paragraph 389(1)(a) of the Act provides that a person’s dismissal will be a case of genuine redundancy if his or her job is no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. The phrase, “no longer required the person’s job to be performed by anyone” relates specifically to “her job.” A situation where an employee’s tasks are distributed between several employees, as was the case here, constituted a change in the operational requirements of the enterprise.

[39] In Ulan Coal Mines Limited v Henry Jon Howarth and others, 27the Full Bench observed at [17]:

It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals 28 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.

[40] I am satisfied that the material submitted by the respondent that the applicant’s employment was terminated for operational reasons.

Consultation - Section 389(1)(b)

[41] Section 389(1)(b) of the Act requires a positive finding that the employer had complied with the relevant modern award or enterprise agreement award obligations to consult about the particular redundancy. In this matter, relevant consultation obligations are set out under Clause 8 of theAward.

[42] Neither Clause 8 of the Award nor does the Act itself support the proposition that the right to be consulted is a right to change a decision that has been made by the employer.

[43] On or about 23 September 2013, it is clear on the material before the Commission that the applicant was both notified of and consulted about the definite decision made by the respondent following initial discussions on 17 September 2013, to introduce major workplace change by changing rosters. She did not warm to those proposals and was unable to work some of the nights required. The meeting with the respondent involving her partner and herself on 25 September 2013 was in response to the decision to introduce organisational change, the catalyst for which lies in the decision of the O'Brien's to retire and the need to ensure the restaurant, where the applicant had been working, could function, was consultation. The fact that this particular meeting and the depth of consultation was brought to an early halt was unfortunate and on the evidence, not at the initiative of the respondent.

[44] The fact that the respondent’s answers to the applicant’s concerns related to the proposed shift roster were not in her favour does not mean that there was a failure by the respondent to comply with the Award obligation to notify and initiate discussions with her. Notwithstanding the applicant’s personal distress that followed implementation of a revised pattern of work within the restaurant and the cleaning functions of the motel, the evidence before the Commission does not establish that the respondent either refused or failed to notify or have discussions with the applicant in the manner required by Clause 8 of the Award. There was consultation, albeit basic as it was. In my view, the respondent has technically met the requirements of the Award. I am therefore satisfied that the respondent conducted the required consultation. I that regard, I prefer the evidence of the respondent to that of the applicant.

Redeployment - Section 389(2)

[45] The Commission is required to consider whether it would have been reasonable in all the circumstances for the applicant to be redeployed either within the respondent’s enterprise or the enterprise of an associated entity of the respondent. The respondent’s motel operation is a small business.

[46] An otherwise genuine redundancy will be rendered not a case of genuine redundancy if the Commission determines redeployment was reasonable in all the circumstances.

[47] It was the respondent’s case that the new roster offered to the applicant on or about 24 September 2013 would afford her additional work opportunities. However, this work was declined.

[48] Moreover, given the applicant’s conduct following the meeting with Mr Lacey on 25 September 2013, the respondent decided there was no scope to redeploy the applicant to other kitchen or cleaning duties. In any event, to accommodate the applicant's request to return to cleaning duties, the casual shifts of other staff would either need to reduce or the services of another person would need to be terminated. In that regard, paragraph 1553 of the Explanatory Memorandum makes it clear that determining whether a dismissal is a case of ‘genuine redundancy’, the actual process for selecting which employee is to be made redundant is not a relevant consideration.

[49] I am satisfied that given the circumstances of this particular case, it would not have been reasonable, on balance, to expect the respondent to redeploy the applicant.

[50] In determining this application, I am further satisfied that each party has been afforded a ‘fair go all round’.

Decision

[51] Having considered of all the material before the Commission in this matter, I am satisfied that the termination of employment of the applicant was, according to the relevant legislative tests, the result of a genuine redundancy. Accordingly, the jurisdictional objection to the application for unfair dismissal remedy is therefore upheld. The application made pursuant to s.394 of the Act is dismissed. I order accordingly. An Order will be issued with this decision.

COMMISSIONER

Appearances:

The applicant was self-represented.

The respondent was self-represented.

Hearing details:

2014

Forster

14 March

 1   Transcript at PN274

 2   Ibid at PN276

 3   Ibid at PN280

 4   Ibid at PN260-262

 5   Ibid at PN264

 6   Respondent’s submissions - Paragraph 1

 7   Transcript at PN87

 8   Ibid at PN217

 9   Ibid at PN91

 10   Ibid at PN139

 11   Ibid at PN164

 12   Ibid at PN162

 13   Ibid at PN170

 14   Ibid at PN180

 15   Ibid at PN182

 16   Ibid at PN183-184 and PN1877-190

 17   Ibid at PN155

 18   Ibid at PN217 and PN237

 19   Applicant’s written submissions - Paragraph 2

 20   Ibid at Para 1

 21   Transcript at PN206

 22   Ibid at PN217

 23   Ibid at PN218

 24   Ibid at PN206-213 and PN226-227

 25   Applicant’s written submissions - paragraph 4 and respondent’s submissions- paragraph 4

 26   [2010] FWA 3125

 27   [2010] FWAFB 3488

 28 (1995) 60 IR 304

Printed by authority of the Commonwealth Government Printer

<Price code C, PR550314>