Mr Andrew Copperstone v Ebet Gaming Systems T/A Odyssey Gaming Services Ltd

[2014] FWC 2787

[2014] FWC 2787

FAIR WORK COMMISSION

DECISION

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

Mr Andrew Copperstone
v
Ebet Gaming Systems T/A Odyssey Gaming Services Ltd
(U2013/17312)

COMMISSIONER SIMPSON BRISBANE, 9 MAY 2014

Application for relief from unfair dismissal - Jurisdiction - Genuine redundancy - Application dimissed.

[1] The following decision, now edited, was issued during proceedings on 2 May 2014.

[2] This matter concerns an application under section 394 of the Fair Work Act 2009 (the Act) by Mr Andrew Copperstone, the applicant, who alleges that the termination of his employment with the respondent, and we clarified the correct identity of the respondent in the course of the proceedings today, was unfair in accordance with the definition contained in section 385 of the Act. The application was filed on 12 December 2013 and the respondent subsequently raised a jurisdictional objection based upon the applicant being the subject of genuine redundancy.

[3] Following a directions conference on 24 March it was agreed that the jurisdictional objection and the substantive matter would be heard together today on Friday 2 May. At the hearing today the applicant has been represented by himself and the respondent has been represented by Mr Mossman of MK Lawyers. The legislation provides that I must deal with the jurisdictional question before dealing with the substantive question. The dispute relates principally, although not exclusively, to a newly created position which comprises of a technician’s role and a client executive management role merged into one. The applicant was the only person affected by this restructure in the Cairns region.

[4] The applicant has contended that the dismissal was not a case of genuine redundancy and the applicant has submitted that his 16 years of experience in a similar role made him able to perform the task of a technician. The applicant was prepared to obtain, he said, qualifications that might be required to perform the restructured position. The applicant provides that he was not offered any alternative position within the company, although two weeks earlier he says that the respondent engaged a new executive sales person in the Brisbane area. He also alleges that at the time he was made redundant the respondent had already engaged a former employee to fulfil the position and therefore the redundancy was not genuine.

[5] It appears to be generally agreed between the parties that the new position was never actually offered to the applicant, nor was the applicant offered any other alternative positions within the business. The respondent has argued that it had considered relevant redeployment opportunities for the applicant but that there were no other suitable roles available at the time. It’s further said that the applicant was dismissed on 26 November 2013 and that the new employee was interviewed on the twenty eighth, I think. The respondent sought to rely on the authority in Mackay Taxi Holdings Pty Ltd and Mackay Whitsunday Taxi v Wilson in a recent Full Bench decision –and I’ll return to that a bit later.

[6] As part of the evidence the respondent has produced a position description for both the positions, the position performed by Mr Copperstone and the position now being filled after the changes. The difference between the original position and the newly structured position is the insertion of a clause under a heading, “Technical work” and that includes, at times, being required to perform technical work of an Odyssey technician. Areas that will be required to assist include ad hoc work, interchanges, conversions, site control or replacements including the issuing of seals, tighten installs and replacements.

[7] The evidence filed didn’t talk specifically about qualifications, but there has been evidence about that today which I’ll deal with in some detail. The applicant submits he holds the requisite skills and knowledge to perform the role, although further he says that he could have performed the role with further training. Now, as I’ve already alluded to, section 396 requires I have to decide the jurisdictional objection before I can go on to consider the merits of the matter.

[8] Just dealing with the evidence that we’ve heard today, in the course of his evidence today Mr Copperstone has said that Mr Keen was hired on the day of his redundancy. He has also given evidence that, I presume, former clients that he dealt with while he was doing the job have told him that he doesn’t think that Mr Keen, who is currently filling the role for the respondent, is doing anything different to what he used to do. He made a reference to the respondent’s website, saying the position was being classed as a client executive, as he was. In the course of cross-examination Mr Copperstone agreed that Odyssey Gaming, or the respondent, provides services which include gaming machines. He also agreed that he was the only employee of the respondent in the Cairns area.

[9] He agreed that there is another person, I think it was J.J., who is a contractor not an employee. He also agreed that Mr Keen is, to his knowledge, the only current employee of the respondent in the Cairns area. He agreed that in the times of his employment that on occasion the respondent outsourced to that contractor technical work. He did make the claim in his evidence that he had worked on machines before, including when he had been a manager, in the course of his previous experience. He accepted in the course of his cross-examination that a technician in this area requires a Certificate III in business equipment servicing, which he accepted that he did not hold. It was put to him that the course takes two years to complete. He didn’t take any issue with that proposition. It was put to him that he didn’t hold the Certificate III in business equipment servicing and he agreed that he didn’t.

[10] He said he did not know whether a technician requires a gaming repairer license, which is a license issued by the Office of Liquor and Gaming, a State Government department. Mr Anderson gave some subsequent evidence on the issue and I’m satisfied from that subsequent evidence that in all probability it is the case that it’s a requirement for a person performing the technician role to hold that license from the government department. Now, it appears from the evidence also that in order to hold the license you’ve got to have the certificate. And, again, the situation is that Mr Copperstone didn’t hold the Certificate III, hence wouldn’t have been able to get the license.

[11] It was also put to him in cross-examination that he did not have a restricted electrical license. He said he was not aware if a technician was required to hold such a license. He agreed that he didn’t have one. It would appear in all probability that it is a requirement to have a restricted electrical license in order to perform the work of the technician that is in the position description that has been developed by the respondent for the new role. Now, in terms of the argument the primary position put at the opening of the hearing this morning by Mr Copperstone was that he thought, in essence, the job was really still the same job. Well, I think, as the evidence has unfolded, that proposition really has just become unsustainable in that it’s quite evident there’s a range of additional duties in the combination of the roles, including the technician function.

[12] Now, in terms of that, I guess to really put that issue beyond doubt the respondent put to the applicant, or Mr Mossman did, a document attached to his material, which is ACC3. Which included the correspondence from him prior to his termination, talking about propositions as to what the employer should do as a business decision moving forward. One of the options which was actually proposed by Mr Copperstone was a combination of the role he was performing at the time with the technician function. Now, ultimately it was apparent that’s what the employer decided to do.

[13] In cross-examination Mr Copperstone appeared to accept or indicated that it was logical that combining the two roles could justify or merit an increase in pay. In response to his claim that his replacement, Mr Keen, was only performing the chief executive role, he was referred to a document, which was correspondence generated by Mr Keen sent to clients after his employment which indicated that he would also be working in a technical support role, to contest the proposition put by Mr Copperstone. It’s common ground that, as I said, the applicant was the only employee in the region. It is clear that the company chose to combine the roles.

[14] On the basis of all of the evidence I am satisfied it’s beyond argument that section 389(1)(a) has been satisfied for the purposes of the respondent argument this is a genuine redundancy, in that the job that Mr Copperstone was performing was no longer required to be performed by anyone. That now takes us to section 389(1)(b). Essentially, there has been no contest that an award or other enterprise agreement applied. So to that extent there’s no argument before me that one does. In any event I need to be satisfied, for myself, that one doesn’t. I can’t think of any modern award that could apply to the functions as described in the role in the evidence.

[15] There was some evidence during cross-examination of Mr Copperstone about what he did as the client executive; about what his base salary was; about his company car; about the range of bonuses he received; about his company credit card. Really, it would appear fairly evident, for me, that the role wasn’t covered by a modern award that I’m aware of – and I’m satisfied that it wasn’t. Essentially, it appeared to be a sales role with management type autonomy.

[16] In terms of the final element of section 389, which is the question about redeployment, it’s important to deal with this fairly carefully.

[17] Now, Mr Copperstone said that he was prepared to accept any role available, including a role in Brisbane. There was some contest over this and the respondent put to Mr Copperstone his correspondence of 25 November, when he was asked to respond to the proposition that his position be made redundant, where he made some reference in that language to proposing that he would apply for any new position that is going to help grow the service in the Cairns region. Look, in that, of itself, I am not necessarily satisfied that the applicant would have been unprepared to move to somewhere else. The question I’ve really got to be satisfied with is the question as to whether it would have been reasonable for him to be redeployed to a position that I’ve got to be satisfied existed.

[18] There was some examination of the question of what else existed. Now, before we move to that we should deal with the newly created position itself, as to whether or not it would have been appropriate to redeploy to that position. I am satisfied, having gone through the evidence as I have, that the position that had been created required technical functions, which Mr Copperstone was not qualified to perform, and that in order for him to obtain the qualifications that the role required would have involved a level of time and expense, that it wouldn’t have been reasonable to expect the employer to support him in, in order to be able to do that. So in those circumstances I am not satisfied that it would not have been reasonable for him to be redeployed into the new role in Cairns.

[19] We still need to consider what else might have been possible for him to be redeployed into – and before I finish on that last point I make particular reference to authority in the decision in Ulan Coal v Honeysett, 1 which is a decision of the Full Bench in November of 2010, where the Full Bench considered section 389(2) and considered circumstances where it would or wouldn’t be reasonable for someone to be redeployed –and I’ll particularly make reference to paragraph 34 of the Full Bench decision where it says:

[34]It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. 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...

[20] Now, on the basis of what I’ve already said, I’m not satisfied that Mr Copperstone – that the period of retraining that would have been required was reasonable in this case. But I also noted from the evidence of Mr Anderson while being cross-examined that it was put to him that Mr Copperstone could have been re-trained by the contractor in the area and Mr Anderson stated in his evidence that in fact this person was a business in his own right, he didn’t control him and didn’t have necessarily a capacity to direct him to do that. This is just another reason why it wouldn’t have been reasonable in the circumstances to redeploy to that role.

[21] But turning to other possibilities - Mr Copperstone, you made reference to a position – you were aware that there was a Brisbane position for a client executive, which you understood had been filled only weeks before your redundancy – and that was by someone referred to as Sharon. The evidence is that that position was filled, as you’ve said, a couple of weeks prior. The evidence of Mr Anderson has been that that happened in circumstances where she had been employed to replace another person by the name of Leonie and that it was really a coincidence that that happened and then a few weeks later your position was made redundant.

[22] Look, what’s probably most relevant here is the fact that the test in terms of deciding whether or not it’s appropriate to redeploy – and I think, Mr Mossman, you made some reference to this today, is at the time of termination itself. I particularly make reference to paragraph 35 of the recent Full Bench decision in Technical and Further Education Commission T/A TAFE NSW v Pykett 2 where the Commission said as follows:

[35] As we have mentioned, the use of the past tense in the expression ‘would have been reasonable in all the circumstances for the person to be redeployed ...’ in section 389 (2)(a) directs attention to the circumstances which pertained when the person was dismissed. As noted in Honeysett, [T]’he exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances’. 3 The question is whether redeployment within the employer’s enterprise or an associated entity would have been reasonable at the time of dismissal. In answering that question the Full Bench in Honeysett observed that a number of matters are capable of being relevant:

“They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered”. 4

[23] So, in essence, that Full Bench decision is authority for the proposition that you need to consider the position as at the time of termination. The reality is that particular position had to be filled by someone else several weeks earlier. So therefore it wouldn’t have been reasonable – it couldn’t have been reasonable for Mr Copperstone to be redeployed into that role. In terms of any other possibilities, we’ve had direct evidence from Mr Anderson about other options. He has given direct evidence that there were no other client executive positions at that time, no other helpdesk or technician positions, but in any event he gave evidence that it wouldn’t have been reasonable to redeploy Mr Copperstone into helpdesk or technician positions.

[24] On the technician positions, generally I would accept that even though it’s hypothetical in any sense, in that there’s no evidence that there was a position as such, there is Full Bench authority for the proposition that in order for me to be satisfied it’s appropriate to redeploy someone to a role I’ve got to have evidence about the role or the work. At this stage I’m not satisfied there is any. So, in any event, on the basis of all of that, I am satisfied that it was not reasonable for the employer to have redeployed Mr Copperstone into any other position that existed at the time.

[25] So on that basis, having considered all of the factors that I need to under section 389 of the Act, I am satisfied that this was a genuine redundancy. As I’ve reached that conclusion I have no jurisdiction to go on and consider whether or not the dismissal was unfair. So on that basis the application must be dismissed.

COMMISSIONER

Appearances:

Mr Copperstone, for the Applicant

Mr Mossman, for the Respondent

Hearing details:

Brisbane

May 2

2014

 1 (2010) 199 IR 363.

 2   [2014] FWCFB 714.

 3 (2010) 199 IR 363 at [26].

 4 (2010) 199 IR 363 at [28].

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