Mitchell Crawford v Cardtronics Australasia Pty Ltd

[2020] FWC 5633

[2020] FWC 5633

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mitchell Crawford
v
Cardtronics Australasia Pty Ltd
(U2020/10567)

DEPUTY PRESIDENT COLMAN MELBOURNE, 22 OCTOBER 2020

Application for an unfair dismissal remedy – genuine redundancy – application dismissed

[1] This decision concerns an application made by Mr Mitchell Crawford for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (Act). Mr Crawford was employed by Cardtronics Australasia Pty Ltd (company) from 6 March 2017 until his position was made redundant on 15 July 2020. Mr Crawford contends that his position was not genuinely redundant, that the company had ulterior motives for terminating his employment, and that his dismissal was unfair. He seeks compensation. The company contends that Mr Crawford’s dismissal was a genuine redundancy for the purpose of s 389 of the Act, and that his application must therefore be dismissed. Alternatively, it says that Mr Crawford’s dismissal was not unfair.

[2] The question of whether Mr Crawford’s dismissal was a case of genuine redundancy is one of the four matters that s 396 of the Act requires the Commission to decide before considering the merits of an application. I will record my conclusions on each of these matters. First, Mr Crawford’s application was made within the 21-day period required by s 394(2) of the Act. Secondly, Mr Crawford was a person protected from unfair dismissal, as he earned less than the high-income threshold and had undertaken the minimum period of employment (s 382). Thirdly, the company is not a small business, and no question of compliance with the Small Business Fair Dismissal Code arises. Finally, as I explain below, I have concluded that the dismissal was a ‘genuine redundancy,’ and that the application must therefore be dismissed.

Factual background

[3] The company is a deployer of automatic teller machines (ATMs). Most of its revenue is derived from cash withdrawal transactions from ATMs in Australia and New Zealand. Mr Crawford was employed as a ‘second level technical support person’. His job was to manage issues affecting ATMs in Victoria, Tasmania, New South Wales and New Zealand, and to assist first level technical support persons.

[4] Mr Crawford’s evidence was that from 2 April 2020, the company stood him down for reasons associated with the COVID-19 pandemic. Mr Crawford said that he believed the stand down was unlawful because there was still work for him to do. He said that in mid-June, the company advised employees that business was improving however he continued to be stood down.

[5] Mr Crawford said that on 14 July 2020, he attended a telephone meeting with his manager, Ms Ciara Mosely, and the head of human resources, Ms Suzanne Carlin. Ms Mosely told him that his job was redundant effective the following the day. Mr Crawford’s evidence was that he was shocked. He said that later that day he was provided with a consultation letter but that he was not able to show this to his support person, because the letter asked him to keep its contents confidential. Mr Crawford said that he was not consulted about his redundancy, but simply told that it would occur. He said that he was also told that he could apply for two particular positions, but that one was a role that he had previously applied for unsuccessfully, and the other required qualifications that he did not possess. He therefore did not believe that he would be successful in applying for these jobs.

[6] Mr Crawford’s evidence was that at the time of his dismissal, he believed that there was still work for him to do, because the first level support persons needed ongoing assistance from the second level support persons. He said that his role required him to look for cost savings for the business, which was very necessary at the time. He said that the two other second level support persons in the business were not made redundant.

[7] The evidence of Ms Carlin was that government restrictions in response to the COVID-19 pandemic led to significant reductions in revenue. She said that in early April 2020, employees were stood down, and that in July, the company decided to make 19 positions redundant in various areas. Ms Carlin said that because of the reduced demand for technical support, a decision was made to restructure this function and reduce the second level support roles from three to two. She said that Mr Crawford was selected for redundancy based on skill set and the needs of the business. She also said that the decision was made about a week before it was conveyed to Mr Crawford on 14 July 2020.

[8] Ms Carlin said that before the telephone meeting on 14 July 2020, she looked at vacant positions within the corporate group and identified two positions which she believed Mr Crawford had the skills and knowledge to undertake, namely service delivery supervisor and cash services analyst. Ms Carlin said that during the telephone discussion with Mr Crawford, she told him that these roles were available and that he could be redeployed to either of them if he wanted to apply. Mr Crawford did not apply for either role. Ms Carlin’s evidence was that if he had applied, he would have been a strong candidate for his preferred position.

[9] Ms Carlin said that, after the telephone meeting ended, she sent Mr Crawford a letter dated 14 July 2020 from the managing director, Mr Andrew Wingrove. The letter stated that Mr Crawford’s position was redundant as a result of a restructure occasioned by the COVID-19 pandemic and the decline in revenue and transactions. It attached a calculation of his redundancy entitlements. It stated that the company wanted to discuss measures to minimise the effects of the redundancy and gave details of a further telephone meeting the next day. It referred to the two roles mentioned by Ms Carlin, attached position descriptions, and requested that, if Mr Crawford wanted to apply for the roles, he do so by the following day.

[10] Mr Crawford attended the telephone meeting on 15 July 2020 with a support person. What was said is not in contest. Mr Crawford did not raise any queries or concerns about the redundancy but said that he believed he had been unlawfully stood-down and claimed to be owed 14 weeks’ back pay. Ms Carlin replied that the meeting was to discuss the redundancy, not the stand-down, but that they could speak about that matter separately. Ms Carlin asked Mr Crawford whether he was going to apply for either of the two positions, and he replied that they were not his skill set. Ms Carlin asked Mr Crawford whether there was anything else that he wanted to discuss regarding his redundancy, to which he said ‘no’. Ms Carlin then confirmed that the redundancy would take effect that day. Mr Crawford received three weeks’ payment in lieu of notice and 7 weeks’ redundancy pay.

Submissions

[11] Mr Crawford contended that his position was not genuinely redundant because there was still work for him to do. He said that his job continues to be done by the two other employees who are at his level. He said he did not understand why his position was made redundant when only one of seven first level technicians responsible for Victorian ATMs was made redundant. He said that the regions he managed had been returning to normal. He said that he believed his redundancy was really a decision to get rid of him. In this regard, Mr Crawford said that the company had selected him for redundancy because in late 2017 he had contacted the Fair Work Ombudsman about underpayment of wages. He also referred to an incident in 2019 in which he said that Ms Carlin yelled at him. Mr Crawford further submitted that he was not properly consulted about his redundancy. He said that he was presented with the decision to make him redundant, and that no effort was made to find him another position. He said that the company’s suggestion that he apply for the two positions fell short of constituting reasonable efforts to redeploy him.

[12] The company contended that Mr Crawford was dismissed because it did not require his job to be performed by anyone, due to changes in its operational requirements. It said that it needed to reduce staff in response to reduced revenue, and that it only required two, not three, second level support persons. The company said that it consulted Mr Crawford about his redundancy, including in writing, on 14 and 15 July 2020, as required by the Clerks – Private Sector Award 2020 (Award), and that it would not have been reasonable to redeploy Mr Crawford, given that he did not apply for the positions that had been suggested to him.

Consideration

[13] Under s 385 of the Act, a dismissal cannot be unfair if it was a case of ‘genuine redundancy’, which is defined in s 389 as follows:

“(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] I find that the company no longer required Mr Crawford’s job to be performed by anyone because of changes in its operational requirements. I accept the evidence of Ms Carlin. The business had suffered a reduction in revenue because of the pandemic and government restrictions. It decided to make 19 positions redundant, and that it only needed two second level support persons. These decisions are unsurprising. ATMs have been used less frequently during the pandemic, as people endeavour to minimise human contact. Mr Crawford and other employees were stood down for some 15 weeks. Stand downs provide an alternative to redundancy but they cannot continue indefinitely.

[15] Mr Crawford’s contention that there is still work for second level technical support persons misses the point that a ‘genuine redundancy’ is one where the employee’s ‘job’ is no longer needed. It is often the case that there remains work of the same kind as that performed by the employee whose position has been made redundant. A reduction in numbers within a particular classification is compatible with a genuine redundancy. I accept Ms Carlin’s evidence that Mr Crawford’s position was selected based on skill set and the needs of the business. Mr Crawford was not arbitrarily selected for redundancy from the group of three. But in any event, this would not logically tell against a conclusion that the company did not want his job done by anyone. By contrast, had there been any substance to the contention that there was an ulterior motive for the decision to dismiss Mr Crawford, that would call into question whether the position was in fact redundant at all. However, I do not accept Mr Crawford’s contention that the company had ulterior motives for dismissing him. There is no evidence to support this contention. Ms Carlin denied that the decision to make Mr Crawford redundant was affected by his complaint about underpayments or the incident in 2019, which she said was merely a heated discussion. I believe her. Moreover, the company’s stated reasons for dismissing Mr Crawford are entirely credible.

[16] Next, it is necessary to consider whether the company complied with any obligation in a modern award or enterprise agreement to consult about the redundancy. Clause 38 of the Award requires an employer to consult with employees about major workplace change. Clause 38.1 states that where an employer has made a ‘definite decision’ to make major changes in organisation, structure, or various other matters, that are likely to have significant effects on employees (including termination), the employer must give notice of the changes to all employees who may be affected by them, and discuss the changes, their likely effect on employees, and measures to avoid or reduce adverse effects. Clause 38.1(c) states that discussions must commence ‘as soon as practicable’ after a definite decision has been made. Clause 38.2 provides that, for the purposes of these discussions, the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including their nature, their expected effect on employees, and any other matters likely to affect employees.

[17] In my opinion, through the telephone meetings on 14 and 15 June 2020, and the letter of 14 July 2020, the company complied with its consultation obligations. The meetings and the letter notified Mr Crawford of the change and its effect. Measures to avoid or reduce adverse effects were discussed, namely the opportunity to apply for alternative positions, and in particular the two roles that were suggested to Mr Crawford by Ms Carlin. The letter of 14 July 2020 provided information in writing about the matters required by clause 38.2. I appreciate that very little actual notice of redundancy was provided to Mr Crawford, and he was only given a day to consider whether to apply for the alternative roles. But this is not inconsistent with clause 38 of the Award. Further, Mr Crawford was paid three weeks salary in lieu of actual notice. While Mr Crawford said that he was shocked to be told that his position was redundant, it cannot have come as a complete surprise after having been stood down for 15 weeks.

[18] There is a question as to whether the consultation discussions commenced ‘as soon as practicable’ after the decision was made to make Mr Crawford redundant. Ms Carlin said that the company did not think it appropriate to commence discussions with affected employees immediately as it would ‘string them along’ to have them stood down with redundancy pending. This is perhaps debateable, but I accept that the company’s concerns about employees’ reactions and feelings are relevant to the question of when it is practicable to start discussions. Further, Ms Carlin did not say that this was the only consideration bearing on the question of when consultation could commence. Nineteen employees were to be made redundant. Letters and proposed telephone meetings needed to be arranged. Mr Crawford’s termination letter was tailored, identifying alternative positions he might wish to apply for. I infer that other letters were also tailored. In all the circumstances, I consider that the discussions commenced as soon as practicable after a definite decision had been made to effectuate the redundancies, including that of Mr Crawford.

[19] Next it is necessary to consider whether it would have been reasonable in all the circumstances for Mr Crawford to be redeployed within the company’s enterprise or that of an associated entity. Mr Crawford said that the company only invited him to apply for alternative positions and did not provide him with actual redeployment. That is true. But there is no obligation on an employer to redeploy a person whose position is no longer required. Rather, a dismissal will not be a ‘genuine redundancy’ if it would have been reasonable to redeploy the person. A conclusion to that effect cannot be reached without an appropriate evidentiary foundation. Whether it would have been reasonable to redeploy a person will depend on all the circumstances, including the availability of suitable work, the qualifications and skills of the employee, and the actions of the employer and the employee.

[20] Ms Carlin told Mr Crawford that there were two vacant roles available and that he could be redeployed to either of them if he wanted to apply. He chose not to do so. Mr Crawford said that he did not think he was qualified. But Ms Carlin was the head of human resources and had proposed these roles to him. It is not reasonable to expect the company to have redeployed Mr Crawford to a position for which he declined to make an application. Aside from these two positions, there is no evidence of any other position or work to which Mr Crawford could reasonably have been deployed. There was a range of work he was capable of doing. But there is no evidence of other available work. I note that prior to the telephone meeting of 14 July 2020, Ms Carlin considered vacant positions across the corporate group, and identified positions she thought appropriate for Mr Crawford. In all the circumstances there is no basis to conclude that it would have been reasonable for the company to redeploy Mr Crawford for the purpose of s 389(2).

Conclusion

[21] Both of the elements of s 389(1) are made out in this case. Section 389(2) is not engaged. I conclude that Mr Crawford’s dismissal was a case of genuine redundancy. The application for an unfair dismissal remedy is therefore dismissed.

[22] I would note however that, even if the dismissal had fallen outside s 389 because the consultation discussions did not commence ‘as soon as practicable’, I would have concluded that the dismissal was not harsh, unjust or unreasonable, having regard to s 387. A dismissal that is not a ‘genuine redundancy’ under s 389 may nonetheless be a real and legitimate redundancy. In the present case, there was no ‘valid reason’ for dismissal related to Mr Crawford’s capacity or conduct, but there was clearly a good reason for it, because the position was not needed. The redundancy process was short, but not unreasonably so, in the context of a protracted stand down, which was evidently implemented in an effort to preserve jobs. The company was hardly hasty in making redundancies. Further, the consultation with Mr Crawford would have been longer if he had applied for one of the alternative positions, because instead of his employment ending on 15 July 2020, the selection processes would have occurred.

[23] Consultation could have commenced earlier than it did, but I do not consider that this would have made any practical difference. Mr Crawford’s position was not needed, and he did not wish to apply for the other positions. The reasons for dismissal were explained in the meetings and the letters of 14 and 15 July 2020. There was little else to discuss. Mr Crawford said that the consultation letter unfairly required him to keep its contents confidential, but I do not read it as precluding him from sharing it with a support person or advisor. The letter asked that he not discuss the matter with employees, customers, clients or suppliers of the company. This was the focus of the company’s concern about confidentiality.

[24] Finally, if I had concluded that consultation should have started earlier, and that the dismissal was unfair for this reason, I would not have ordered compensation, for these reasons. Section 392(2)(c) of the Act requires that, in determining an amount of compensation, the Commission must consider ‘the remuneration that the person would have received … if the person had not been dismissed’. This requires an estimation of how long a person would have remained employed, but for the dismissal. This hypothetical scenario should rest on the reasonable premise that the employer would behave in a rational and lawful way. That is, in a case where there was a deficiency in consultation about a legitimate redundancy, one assumes that the employer would have consulted properly, and then dismissed the employee whose position is not needed. Usually, compensation would then reflect the additional time it would have taken for the employer to complete the consultation. But here, any further compliance with consultation obligations would have seen the consultation start earlier, rather than the employment end later. Mr Crawford would not have been employed for any additional period.

DEPUTY PRESIDENT

Appearances:

M Crawford for himself
J Mansfield for Cardtronics Australasia Pty Ltd

Hearing details:

2020
Melbourne
21 October

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