Monks v John Holland Group Pty Ltd
[2012] FWA 6453
•1 AUGUST 2012
[2012] FWA 6453 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kylie Monks
v
John Holland Group Pty Ltd
(U2012/4488)
COMMISSIONER GOOLEY | MELBOURNE, 1 AUGUST 2012 |
Application for unfair dismissal remedy.
[1] Ms Kylie Monks (the Applicant) was employed by John Holland Group Pty Ltd (the Respondent) from 13 October 2008 until her employment was terminated on 17 January 2012.
[2] The Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that she was unfairly dismissed.
[3] The application was listed for hearing on 8 June 2012.
[4] Mr Garry Dircks was given permission to appear for the Applicant and Mr Jonathon Forbes was given permission to appear for the Respondent.
Jurisdiction of Fair Work Australia
[5] There is no dispute that the Applicant is a person who was protected from unfair dismissal. However it was submitted by the Respondent that this was a genuine redundancy.
The evidence
[6] The Applicant was initially employed on a fixed term contract as a personal assistant in a maternity leave position. In July 2009, she was subsequently offered ongoing employment as a personal assistant to the pre-contracts manager. 1 At that time the pre-contracts manager was Dr David Sims.2 There were no issues with the Applicant’s performance in her role.
[7] In December 2011 Dr Sims was promoted and his new position was located in Sydney. The Applicant was asked by Dr Sims to relocate with him but she did not accept this offer. Ms Nicole Stoddart was appointed as pre-contracts manager and the Applicant became her personal assistant.
[8] Ms Stoddart gave evidence that she worked with Dr Sims in the six months prior to her appointment as the pre-contracts manager as she was earmarked to take up the position in December 2011. It was her evidence that her role was to be different to that performed by Dr Sims. 3 She was required to travel more extensively than Dr Sims. Further it was her evidence that her team was less experienced than Dr Sims’ team and she was “required to provide them with additional support” which increased her workload.
[9] It was her evidence that she spoke to the General Manager in mid December 2011 about her new role and she told the General Manager that she required an assistant who could manage a broader range of responsibilities than the Applicant. It was her evidence that Dr Sims was largely self sufficient and therefore the Applicant’s role was more limited in scope and responsibilities. The General Manager agreed that she needed a higher level of support and suggested she replace her personal assistant with “a more senior and experienced Executive Assistant.” 4 He suggested that a person who had previously been an executive assistant to a senior project director, be appointed.
[10] Mr Peter Howell, a Human Resources Manager, gave evidence that across the John Holland Group “executive assistants are typically employed to support and assist only the highest level managers, ie. those at the level of General Manager and above.” It was his evidence that executive assistants typically have greater skills and experience than personal assistants and this is reflected in their higher rate of pay. Executive assistants are expected to be more proactive and self managed as well as exercise significant levels of initiative. 5
[11] The executive assistant who became Ms Stoddart’s executive assistant was paid $25,000 a year more than the Applicant. 6
[12] It was the Applicant’s evidence that there was no discernable difference between the role of the personal assistant and the executive assistant. 7
[13] It was Mr Howell’s evidence that even though Ms Stoddart was not a General Manager it was decided, given her recent appointment, the increased scope of her role and the importance of her role to provide her with an executive assistant. 8
[14] In December 2011 a decision was taken to appoint another person to the position of executive assistant to Ms Stoddart. It was Ms Stoddart’s evidence that this person had extensive experience in the construction industry. 9
[15] In December 2011 Ms Stoddart said that she took steps to find a suitable position to which the Applicant could be redeployed. She asked Dr Sims if he had a role for her but he did not. She contacted him again in January 2012 and he told her that while he did not have permanent position for the Applicant he had a temporary position for her, which would last six weeks. 10
[16] Mr Howell gave evidence that, after his discussion with Ms Stoddart in early December 2011, he discussed with a number of people if there were other suitable roles for the Applicant. 11
[17] On 12 January 2012 the Applicant was called to a meeting with Mr Howell and Ms Stoddart. She was told at the meeting that Ms Stoddart required an executive assistant rather than a personal assistant and she was told she would not be appointed as Ms Stoddart’s executive assistant.
[18] The Applicant says she was told that Ms Stoddart needed a different skill set in her assistant than Dr Sims and she needed someone with a different management style. 12 The Applicant was told who would be appointed to the position.
[19] The Applicant gave evidence that her work performance had not been criticised and she was not aware of any problems with her work. 13
[20] It was the Applicant’s evidence that she was told that she could take a redundancy package and leave immediately or she could continue working for a further six weeks during which time the Respondent would try to find her another position. It was also her evidence that Mr Howell referred to positions of executive assistant to the Executive General Manager in Rail and the General Manager in Tunnelling, as being positions she could apply for. It was her evidence that she was told that nothing was guaranteed. She says she was told that if an alternative position could not be found for her by 28 February 2012, her employment would be terminated. 14
[21] The Applicant was handed some documents which set out her entitlements if she was made redundant. One had her finishing up on 17 January 2012 and the other 28 February 2012. 15
[22] Dr Sims then came into the meeting and the Applicant was told she could work with Dr Sims for six weeks organising a conference in the Hunter Valley. 16
[23] Mr Howell advised the Applicant to not make an immediate decision but to go home and think about it, which she did. She was asked to let him know her decision the next day. The next day the Applicant went to her doctor who gave her a medical certificate for a week. 17
[24] Mr Howell’s recollection of this meeting differed from the Applicant’s. Relevantly he denied that he told the Applicant that if she did not find herself a job by 28 February 2012 she would be out of a job. He says he told her that the Respondent would attempt to find her a job. He accepts that she was told that if she wanted jobs at a higher level she would have to apply for them but denied the suggestion that if there was a position at her level she would have to apply for it. 18
[25] Dr Sims, who was not present for the whole meeting said that Mr Howell told the Applicant her options were to work for him in the interim role while a permanent role elsewhere in John Holland could be sought or she could chose to accept a redundancy package. 19 In cross examination, Dr Sims made it clear that the temporary position offered to the Applicant would be based in Melbourne and that the Applicant was told this.20 The Applicant was upset and Dr Sims asked the others to leave. He explained that the interim job in his department was important but she would not be overly busy and she could use the time to pursue other options with the Respondent.21
[26] The Applicant sought legal advice and on 20 January 2012 her lawyer sent Mr Howell an email in which he advised that the Applicant wished to accept the offer of $22,618 and asked that she be provided with a letter of termination and a separation certificate as soon as possible. Her termination pay was paid on 23 January 2012 and she received her separation certificate on 31 January 2012. 22
[27] Mr Howell also spoke to the Applicant on 20 January 2012 after receiving the email and she confirmed that she wanted to accept the package. 23
[28] The employment separation certificate states the reason the Applicant ceased employment was due to redundancy. Her termination date was 24 January 2012. She was paid a gross amount of $23,420 of which $15,104 was redundancy pay.
A genuine redundancy?
[29] The FW Act, at section 385, provides that a person has not been unfairly dismissed if Fair Work Australia 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.”
[30] A genuine redundancy is defined as follows:
“S389 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.”
[31] I accept the evidence of the Respondent that the position of executive assistant is a different position to that of a personal assistant. I further accept the evidence of the Respondent that there was a change in the operational requirements of their business resulting in the changes to the role of the pre-contracts manager. I accept that the Respondent no longer required the job of personal assistant to the pre-contracts manager to be done by anyone. Ms Stoddart’s evidence on this was convincing and despite the detailed cross examination on this point her evidence did not change. The assistant she required would have significantly more responsibilities and required a different skill set than that expected of a personal assistant.
[32] The decision to make the Applicant’s position redundant was made in December 2011. A meeting was held to discuss this decision on 12 January 2012.
[33] It was not disputed that the Clerks - Private Sector Award 2010 applied to the work performed by the Applicant. The Award provided, at clause 8, for consultation with employees if there was a decision to introduce major change. Major change is defined to include termination of employment. It was not disputed that the Respondent was obliged to consult with the Applicant.
[34] It was submitted that this consultation occurred at the meeting on 12 January 2012. However by the time the meeting took place not only had the definite decision been made to make the Applicant’s position redundant, the Respondent had determined to create a new position and had determined who was going to fill the new position. There was no opportunity for the Applicant to convince Ms Stoddart that she could be her executive assistant. There was no opportunity at the meeting on 12 January 2012 for the Applicant to change the Respondent’s decision. The meeting was called to consider alternative positions and no more.
[35] Logan J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited provided a detail summary of the meaning to give to consultation. 24
[36] In that decision Logan J referred to the much cited statement of Commissioner Smith:
“Consultation is not perfunctory advice on what is about to happen. This is common misconception. Consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker.” 25
[37] I have adopted that reasoning in this decision.
[38] On the evidence before the Tribunal it is clear that consultation, as required by the Award, did not occur. I therefore find that this was not a genuine redundancy as defined by the FW Act and therefore the jurisdictional objection is dismissed.
Was the termination of employment harsh, unjust or unreasonable?
[39] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, Fair Work Australia must take into account the following:
s387(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);
[40] The Applicant submitted that she was capable of performing the duties of executive assistant to Ms Stoddart. Further it was submitted that “the redundancy was a device to bring about the dismissal of the applicant to enable her to be replaced by a different person doing the same job.” 26 The Applicant believed that Ms Stoddart wanted her out of the company27 however no evidence was called to support this belief and this contention was not put to Ms Stoddart in cross examination.
[41] There is no evidence to support the Applicant’s belief that Ms Stoddart simply wanted to get rid of her and that the creation of the new position was a device to achieve this. This contention must therefore be rejected.
[42] The Applicant accepted that some aspect of the job had changed but this was not sufficient to find that her position was redundant and therefore there was no valid reason for the termination of her employment.
[43] The Applicant submitted that she should have been considered for the position of executive assistant 28 even if she required some retraining. The Applicant relied on the decision of the Full Bench in Ulan Coal to support her contention that this is what should have occurred. The Full Bench said in relation to redeployment “Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining”29.
[44] This is not a case where Ms Stoddart had no knowledge of the Applicant’s capacity. Ms Stoddart had worked in the same department as the Applicant for nearly six months. While I accept that there was no issue with the Applicant’s work as a personal assistant, I accept Ms Stoddart’s evidence that the Applicant was not able to perform the new role. Even with additional training Ms Stoddart considered that it would take a considerable period of time for the Applicant to come up to speed. 30 It was also her evidence that if there had not been a suitable candidate available the position would have been advertised.31
[45] I have found that the decision to make the Applicant’s position redundant was “sound, defensible or well founded” 32. I do not consider that there was simply a change in the title of the position. Ms Stoddart’s evidence on this was believable. She was new to her position, she had a different role to perform compared to her predecessor, she was required to travel more, and she had to manage more teams. Her evidence that she required her assistant to have a different skill mix than that required of a personal assistant was believable.
[46] It was also clear from the evidence that the Respondent did not equate executive assistants and personal assistants. The difference in these classifications predated the decision to provide Ms Stoddart with an executive assistant. I do not accept the evidence of the Applicant that she had previously performed the duties of an executive assistant to the CFO. At all times during her employment with the Respondent she was employed as a personal assistant. 33
[47] I accept the submissions of the Applicant that the mere addition of new tasks to a particular job would not entitle an employer or an employee to claim a position was redundant. However a significant change in the skills required, the accountabilities and autonomy of a position would. I find that the job of executive assistant to Ms Stoddart was not the same position as the job of personal assistant to Ms Stoddart.
[48] However, the decision to make the position redundant was not a decision to terminate the Applicant’s employment. The Applicant was given options including a temporary appointment for six weeks. I do not accept that the two documents provided to the Applicant on 12 January 2012 were termination notices. She was provided with documents which gave her information about how much she would be paid if her employment ended immediately or if it ended in six weeks time. I accept the Respondent’s evidence that the Applicant was advised that the Respondent would see if there were any suitable positions for her. The Applicant was also offered immediate redundancy.
[49] The Applicant was not required to make an immediate decision and she sought legal advice prior to making her decision. She then advised the Respondent that she wished to end her employment immediately and accept the redundancy payment. As a result the Respondent terminated her employment. I accept the Respondent’s evidence that it did not, in the end, look for alternative positions for the Applicant because she advised them that she wanted to accept the offer of the immediate termination of her employment.
[50] While the Applicant did not consider the Respondent to be genuine in its stated intention to look for alternative positions for her, the evidence does not support this contention. The evidence was that immediately the decision was made to provide Ms Stoddart with an executive assistant, Mr Howell and Ms Stoddart made enquiries about alternative positions for the Applicant. I accept that given the decline in the Respondent’s business, finding an alternative position for the Applicant was going to be difficult but that does not mean that the Respondent was not going to seriously attempt to find a suitable position for her. Further, the reason this did not occur after 12 January 2012 was because the Applicant was off sick and then she advised that she did not want redeployment.
[51] While I accept the submissions of the Applicant that this was not a voluntary redundancy, it was clearly the Applicant’s decision to accept the redundancy package that lead to the decision to terminate her employment immediately.
[52] I find that there was valid reason to terminate the Applicant’s employment when she declined the Respondent’s offer to remain employed while it looked at redeployment options and advised the Respondent that she wished to accept the offer of redundancy.
s387(b) whether the Applicant was notified of that reason;
[53] While the Applicant was not notified of the reason her position was made redundant prior to that decision being made, she was advised of the reason prior to the decision to terminate her employment was made.
s387(c) whether the Applicant was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[54] I accept that the Applicant was not provided with an opportunity to put forward evidence to support her contention that she was capable of filling the executive assistant position prior to it being filled. However I find on the evidence before me that had she applied for the position, given the evidence about the experience and skills of the person who was appointed, the Applicant would not have been the preferred candidate.
s387(d) any unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to dismissal;
[55] The Applicant did not ask for a support person to be present at the meeting on 12 January 2012 but this is not surprising as she was not aware of the reason for the meeting prior to it occurring.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether the Applicant had been warned about that unsatisfactory performance before the dismissal;
[56] There was no issue about the Applicant’s performance.
s387(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;
[57] The Respondent is a large employer and it should have been aware of its obligations to meaningfully consult with the Applicant.
s387(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;
[58] This criterion is not relevant as the Respondent has dedicated human resource management specialists.
s387(h) any other matters that FWA considers relevant.
[59] The Applicant, after receiving legal advice, chose not participate in a redeployment process. No criticism can be made of the Applicant in this regard. The Applicant accepted the redundancy payment. Both are relevant to my considerations.
Conclusion
[60] I have found that there was a valid reason for the termination of the Applicant’s employment.
[61] While the Respondent should have consulted with the Applicant about its decision to provide Ms Stoddart with an executive assistant rather than a personal assistant, it was prepared to consult with the Applicant about redeployment. I have found that the Respondent was genuinely prepared to consider alternative positions for the Applicant. It was not the Respondent’s decision to terminate the Applicant’s employment before redeployment was explored. The termination of the Applicant’s employment when it occurred was in response to the Applicant’s advice that she would take the package and end her employment.
[62] I accept that if redeployment had been unsuccessful the Applicant’s employment would have been terminated. Even if her employment had ended after the redeployment period, my conclusion would not have been different.
[63] In all the circumstances the termination of the Applicant’s employment was not harsh, unjust or unreasonable. The application for an unfair dismissal remedy is dismissed.
COMMISSIONER
Appearances:
G Dircks for the Applicant.
J Forbes for the Respondent.
Hearing details:
2012.
Melbourne.
June 8.
1 Exhibit A2 at [6]-[7]
2 Ibid at [14]
3 Exhibit R2 at [8]-[10]
4 Ibid at [13]
5 Exhibit R3 at [28]-[29]
6 Exhibit R2 at [14]
7 Exhibit A2 at [10]
8 Exhibit R3 at [30]
9 Transcript PN 151
10 Exhibit R2 at [17]
11 Exhibit R3 at [14]-[15]
12 Exhibit A2 at [39]-[40]
13 Ibid at [41]-[42]
14 Ibid at [31]-[34]
15 Ibid at [47]-[48]
16 Ibid at [50]
17 Ibid at [54]-[57]
18 Exhibit R3 at [21]
19 Exhibit R1 at [16]
20 Transcript PN 83-84
21 Exhibit R1 at [16]
22 Exhibit A2 at [58]-[61]
23 Exhibit R3 at [25]
24 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 at [40]-[45]
25 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd [PR911257] at [25]
26 Transcript PN 1063
27 Ibid PN 660
28 Ibid PN 1081
29 Ulan Coal Mines Limited v A. Honeysett, A. Oldfield, C. Michaelides, G. Atkinson, R. Butler and D. Dixon [2010] FWAFB 7578 at [34]
30 Transcript PN 282
31 Ibid PN 283
32 Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 at 373, 7 July 1995, Northrop J.
33 Exhibit R3 at PH1 and PH2
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