Mr Anthony Hugh Louis v Arundel Hills Country Club (Gold Coast) Pty Ltd
[2010] FWA 7069
•28 SEPTEMBER 2010
[2010] FWA 7069 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Anthony Hugh Louis
v
Arundel Hills Country Club (Gold Coast) Pty Ltd
(U2009/10195)
COMMISSIONER SPENCER | BRISBANE, 28 SEPTEMBER 2010 |
Termination of employment - jurisdiction - genuine redundancy.
Introduction
[1] This determination concerns the dismissal of Mr Anthony Louis (the Applicant) by the Arundel Hills Country Club (Gold Coast) Pty Ltd (the Respondent) on 7 July 2009. The Applicant was employed as a Starter/Marshall at the Country Club. The Applicant made an application to Fair Work Australia (FWA) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) alleging that the dismissal was harsh, unjust or unreasonable.
[2] The Respondent raised a jurisdictional objection pursuant to s.389 of the Act in that they claimed that the Applicant was made redundant, and that it was genuinely made. The Respondent was represented by Mr Eric Porter and then Mr Wally Lee of Clubs Queensland. The Applicant was self-represented, however he brought his daughter as a support person to the hearings who also provided some advocacy on his behalf.
[3] A Fair Work Conciliator attempted to resolve the matter, however the Respondent pressed the jurisdictional objection. It was then set down for Conciliation/Directions on the Gold Coast, as that was the most convenient location for the Applicant. Directions were then issued in relation to the jurisdictional objection. The Respondent filed Submissions and Statements in response to the application. The Applicant filed some material a short time after. However, the material provided by both parties was insufficient for a proper determination of the jurisdictional issue to be made. Therefore the matter was listed for jurisdictional hearing. During the hearing the Applicant raised a series of questions, which resulted in further Directions being set in order that the additional material he required be presented by the Respondent. Both the Respondent and Applicant provided further material arising from this and a further hearing to test the material was held. The Applicant was able to attend by telephone. During the later hearing, the Applicant raised queries about the financial position that the Respondent was relying upon to support the redundancy. Accordingly a further Direction was set for the relevant Financial Statement to be provided to the Applicant to allow for the testing of this material. This financial statement was provided subject to a suppression order, and the Applicant was provided with a further opportunity to cross-examine and or respond to that Statement. He elected not to cross-examine the Respondent’s witness on this new material but provided some further points in writing for consideration.
[4] Although not all of the evidence, material and submissions are referred to in this Decision, all of such as been considered.
Background
[5] The Applicant was engaged as a Starter/Marshall with the Respondent and his duties were mainly marshalling duties, assisting with golf players, collecting balls, and attending to the equipment required of the golf players.
[6] The Respondent claimed that they no longer required a Starter/Marshall solely performing these duties and the Applicant’s dismissal was as a result of a downturn in the number of golf players and games at the golf course. The Respondent claimed that because there was a reduction in players, there was a diminished need for the duties of the Starter/Marshall to be performed. The Respondent claimed that at the time of the dismissal the Applicant was offered work in the Pro Shop in addition to some hours of work with the golf course in order to maintain a role for him. The Respondent claimed that the Applicant refused to work in the Pro Shop.
[7] The Respondent claimed that the Applicant’s role no longer existed and in this context, the Applicant’s employment could not be maintained therefore the dismissal of the Applicant was a genuine redundancy.
[8] The Applicant denied that he had refused to work in the Pro Shop and refuted the evidence of the Respondent in relation to the downturn in the golf business. He claimed that the dismissal could not have been a genuine redundancy because the Respondent had advertised his position in the newspaper some four days prior to his dismissal.
Relevant legislation
[9] A person who is protected from unfair dismissal may make an application under s.394 of the Act. Whether a dismissal is unfair, in relation to applications of this kind, where a genuine redundancy is alleged, is determined, relevantly, by reference to s.385:
385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
...
(d) the dismissal was not a case of genuine redundancy.
[10] To determine whether the dismissal was a case of genuine redundancy, the Act relevantly defines genuine redundancy at s.389:
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.
[11] A genuine redundancy is tested on the following grounds, that is, if the Respondent:
- No longer required any person to perform the Applicant’s job; as a result of a change in operational requirements; and
- That it complied with any obligations in relation to the modern award or the agreement that applied to the Applicant’s employment in relation to consultation; and
- There were no opportunities for redeployment within the Respondent’s enterprise, or an associated entity, and in all the circumstances, it was reasonable to do so.
Evidence
[12] The Applicant specified in his application that he had been employed from 14 August 2007 in the Starter/Marshall position, on a casual basis. The Respondent submitted that the employment commenced on 7 August 2007. Although it was not clearly identifiable from the material as to the relevant industrial instrument applicable to the Applicant, the Applicant provided a letter of salary review of 8 October 2008 which indicated that an Australian Workplace Agreement (AWA) covered the terms and conditions of his employment.
[13] The Applicant stated in his application that he had never received any disciplinary action. The Respondent referred to some performance issues in relation to the Applicant playing golf on the course without prior authorisation and working different hours to his roster without confirmation. The Applicant submitted that the Respondent had ‘assassinated his character’ as none of these issues were raised with him, and that he had performed his job well.
[14] The Letter of Termination, was as follows:
“Attn: Tony Louis
Re: Course Marshalling
Due to a lack of hours and a change in rosters as at Saturday 18th July 2009 we will be unable to offer you any further hours as a starter / course marshal. [sic]
We will be in contact if any available hours arise.
Regards
Keri Gardiner
Pro Shop Staff”
[15] The Respondent submitted that the Applicant was handed this letter on his next rostered working day, and that the Applicant sought and was granted an interview with the General Manager following receipt of the letter. The specific details of this meeting were not provided.
[16] Ms Akiko Thomas, Membership Coordinator provided evidence in relation to the downturn in business. Attached to this Statement was a series of spreadsheets indicating the number of players, from March 2009 - June 2009. The following has been extracted from that evidence:
Month | Members (18 holes) | Members (9 holes) | Guests (18 holes) | Guests (9 holes) | Total |
March 2009 | 2315 | 264 | 324 | 7 | 2910 |
April 2009 | 1839 | 284 | 123 | 16 | 2262 |
May 2009 | 2261 | 255 | 146 | 6 | 2668 |
June 2009 | 2336 | 111 | 15 | 2 | 2464 |
[17] These figures demonstrate a variation in the total games, over the period of March to June 2009. The most significant reduction was in the Guests, 18 holes games. The Respondent stated these reductions affected the financial performance of the Country Club, and negated the need for an employee solely performing the Starter/Marshall role.
[18] The Respondent provided a confidential Statement of Financial Performance for the Period 01/03/2009 to 31/05/2009, which was prepared by the Respondent’s Accountant. Ms Thomas provided evidence that the Statement is prepared for regular management meetings. This material was provided to the Applicant subject to a Suppression Order that the Statement not be published as it contained commercially sensitive information.
[19] The Statement indicated that the Respondent had suffered a Loss of approximately 150% compared to the same period the previous year. The Respondent pointed to a reduction of an approximate 50% loss in revenue from ‘Green fees’ from 2008 to 2009. The Respondent further pointed to the losses incurred in the Pro Shop, also of approximately 50%. 1 Furthermore, evidence was provided that there was a reduction in Membership Fees of about 10%. All of these losses directly affected the area in which the Applicant was employed.
[20] The Respondent submitted that one approach for redeployment that was examined was to reduce the hours of Starter/Marshalls and have them perform some work in the Pro Shop. There was no further evidence in relation to any other options considered by the Respondent to combat the losses, but the Respondent did submit that a range of options had been considered before any action was taken.
[21] Ms Thomas gave further evidence in relation to the downward trend in numbers of players:
“Since early 2009, the number of people playing golf on the course had reduced on a downward trend. While the overall number of players had declined, the number of players requiring the services of a Marshall had also reduced significantly to the stage where an assessment of staff requirements was necessary. Such an assessment resulted in the decline in hours for casual marshalling staff and a determination in respect of Mr Louis.
I can confirm from personal knowledge Starter/Marshalls were offered work in the Club’s Pro Shop, but Mr Louis declined. The other Starter/Marshall indicated a willingness to undergo training to work in the Pro Shop.” 2
[22] The Applicant refuted that Ms Thomas had any knowledge of his refusal to be retrained. He submitted that nothing was documented; 3 and he denied that he refused retraining; further submitting that he previously had relieved staff in the Pro Shop.
[23] Ms Keri Gardiner, Pro Shop Staff at Arundel Hills gave the following evidence:
“During June 2009, Course player numbers dropped, as evidenced by player numbers in management reports, a reduction in the rostered shifts for our marshals was required, due to lack of work. ...
Tony had been offered the alternate duties but stated that he had been offered them before but was not interested. This was a necessity in order to continue normal business trading during down times...
Based on the fact that Tony was not willing to undergo any further multi skilling and a constant disregard for Management Policies and a decreasing turnover in player numbers Tony was given 2 weeks notice in July 2009.” 4
[24] The Applicant provided evidence that four days prior to his dismissal (4 July 2009), his position was advertised in the newspaper. The advertisement relevantly stated:
“Arundel Hills Country Club
Starter Marshall
Must have had previous Golf Course experience and knowledge of course rules and regulations. Casual position 20-25 hours per week. Varied duties included. Would suit semi retired person.
Please send resume by Wednesday 8th July 2009...”
[25] In relation to the advertisement, Ms Thomas gave the following evidence:
“Whilst a position of Starter Marshall was advertised on 4 July 2009 and another advertisement was place in the paper at a later date, management of the Club reorganized the workforce because of the deterioration in player and guest numbers and Pro Shop revenues over the first half of 2009.
The advertisements were precautionary, but were not used for recruitment, given the decision of management to reorganize the workforce at the Club. Another Starter/Marshall was not employed within two weeks of Mr Louis leaving the Club as suggested by Mr Louis.” 5
[26] This was clarified at the hearing, where the Respondent confirmed that another person was employed on 22 July 2009, but they were employed to perform Pro Shop and Marshall duties, for approximately 10 to 20 hours per week. 6
[27] After the dismissal of the Applicant, the following evidence was provided by Ms Thomas:
“...a check of the pay records indicates Mr Louis’ hours remained at 24 per week or more up until 7 July 2009, when he could not be offered any more work and he left the Club.
A check of timesheets also shows Mr Louis was paid 16 hours pay in addition to his normal pay for the pay week ended 7 July 2009, in lieu for further days (Thursday and Friday) he would have normally worked in that week, notwithstanding his employment was on a casual basis.” 7
[28] And the following, undisputed, information was provided by the Applicant in relation to his final hours of work:
“MR LOUIS: They had been reduced, and they had been reduced on a roster, and I went up to the management, and asked why I was being dismissed, and I was then told to return my uniform on Friday, and there would be a cheque in the mail next day. So I didn't have to work those eight hours, which Mr Porter claimed, that I didn't even work out the two weeks notice that I was given.
...
MR LOUIS: And I had my uniform back by that Friday, and I had the cheque in the mail on the Thursday.” 8
Submissions
[29] In considering whether the dismissal was a genuine redundancy, there are essentially three areas of consideration in relation to a genuine redundancy (set out again for convenience):
- Whether the Respondent no longer required any person to perform the Applicant’s job; as a result of a change in operational requirements; and
- Whether the Respondent complied with any obligations in relation to the modern award or the agreement that applied to the Applicant’s employment in relation to consultation; and
- Whether there were any opportunities for redeployment within the Respondent’s enterprise, or an associated entity and in all the circumstances it was reasonable.
[30] Each of these will be dealt with in turn.
Whether the Respondent required any person to perform the Applicant’s job, as a result of a change in operational requirements
[31] The Applicant submitted that it was inconsistent that his dismissal was a redundancy as his notice of termination stated “We will be in contact with you if any available hours arise” and the advertisement which appeared for a similar position to his clearly stated the position would be 20 to 25 hours.
[32] The Respondent confirmed the advertisement was placed on 4 July 2009, and a subsequent advertisement was made, however the Respondent reorganised the workplace without utilising any applicants from the advertisement. The Respondent also submitted that the advertisements were placed by mistake. 9 The Respondent’s contention was that the advertisement wasn’t placed with the intention of immediately replacing the Applicant, and it was not acting in a way that would suggest the downturn in business wasn’t genuine.
[33] The Applicant stated that he had been told that there was a new Marshall, which was clarified by Ms Thomas, who confirmed a person had been employed, but to perform Starter/Marshall and Pro-Shop duties. He also submitted that in the normal course of placing an advertisement in the newspaper, there is an opportunity to proof the advertisement. He discounted the Respondent’s submissions that there was an error made in relation to the advertisement because it must have been submitted to the newspaper, and then approved by someone from the Respondent.
[34] The Applicant further submitted that it was not consistent with the downturn in business that his hours were not reduced prior to his dismissal, but he later conceded that his hours had been reduced to eight hours. 10
Whether the Respondent complied with any obligations in relation to the modern award or agreement that applied to the Applicant’s employment in relation to consultation
[35] The Applicant submitted that the Respondent did not carry out any consultative process with him in relation to the ‘impending re-organisation’. The Respondent did not make submissions in relation to this, however the Respondent’s evidence was that they made endeavours to combine his duties with Pro-Shop duties to avoid the redundancy and had undertaken these discussions about the Pro-Shop offer with him.
[36] As a consequence of item 36 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), the references in s.389(1)(b) to the modern award and enterprise agreement can be considered a reference to an award-based transitional instrument or an agreement-based transitional instrument, in accordance with their definitions under item 2 of Schedule 3.
[37] As the Applicant was engaged on an AWA; an individual agreement-based transitional instrument for the purposes of the Act, s.389(1)(b) does not therefore make consultation a relevant consideration. Furthermore, at the time of dismissal, the National Employment Standards had not yet come into operation, so there appears to have been only the general common law requirement for the Respondent to consult with the Applicant in relation to the redundancy, and the Respondent stated this obligation was met by the offer of alternative work.
Whether there were any opportunities for redeployment within the Respondent’s enterprise, or an associated entity and in all the circumstances, whether it was reasonable
[38] There was no material put before me that indicated that the Respondent had any associated entities. Therefore, any consideration in relation to this matter will be restricted to ‘whether there were any opportunities for redeployment within Arundel Hills Country Club’.
[39] The Respondent submitted that there were two Starter/Marshalls and both, as a result of the downturn in players, were offered work in the Pro Shop, as a way to offset the reduction in hours in the Starter/Marshall duties. The Respondent further submitted that the other Starter/Marshall had accepted this opportunity, but the Applicant refused.
[40] The Respondent also submitted that training was offered to the Applicant in order to prepare him to work in the Pro Shop, but both the offer of training and the work in the Pro Shop were rejected by the Applicant.
Consideration
[41] The Explanatory Memorandum to the Fair Work Bill 2008 provide examples as to when a dismissal will be a case of genuine redundancy:
“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.”
[42] Having considered the evidence and submissions, it is accepted that there was a downturn in business, affecting both the number of games played at the Country Club and therefore the overall income stream of the Respondent. It is clear that the nature of the operational requirements of the Respondent changed in that there was a drop in players, and therefore a diminished need for employees who were engaged to assist the players. This change in operational requirements reduced the need to have Starter/Marshalls engaged at their previous capacity. It is clear that there was some need to maintain the duties of the Starter/Marshall, however, the reduction in games meant that the existing Starter/Marshalls (including the Applicant), would have their hours reduced, and used in other areas of the business.
[43] It is clear from the Explanatory Memorandum, and referring to the case of Dibb v Commissioner of Taxation, 11 that there can still be a genuine redundancy if some aspects of the employee’s duties are continued to be performed by somebody or some other employee. In this matter, the Respondent no longer required the Applicant to perform his previous job; as a result of the downturn in business they required a position which combined the duties of the Starter/Marshall and the duties performed in the Pro Shop, rendering the Applicant’s position redundant.
[44] The test of genuine redundancy is whether the actual position in question survived a restructure or reorganisation. A position can be made redundant, while the duties of that position continue to be performed in combination with other duties. That is the case here.
[45] It is considered that the Respondent, in changing the Starter/Marshall position to a hybrid ‘Starter/Marshall/Pro-Shop’ position, did offer the Applicant work in the Pro Shop in order to maintain his employment. The evidence of the Respondent is preferred, in that the Applicant refused to work in the Pro Shop, and as this potential ‘redeployment’ opportunity was not acceptable to the Applicant, in these circumstances, it was not unreasonable for the Respondent to discontinue the Applicant’s employment.
[46] In relation to the advertisement, the Respondent continued to require a person to do Starter/Marshall and Pro Shop duties, at reduced hours to the Applicant, and thus placed two advertisements in the newspaper. The second advertisement successfully attracted a candidate who was ultimately placed in the combined role. The Respondent did not retain the Applicant because of his refusal to work in the Pro Shop, and hired someone who could perform the hybrid position.
[47] It is acknowledged that in the Termination Letter, the Respondent stated ‘We will be in contact if any available hours arise.’ and that this could have been more appropriately drafted to reflect the reality of the situation. However, the Respondent had requested that the Applicant’s uniform be returned, which he promptly did. This act indicated a degree of finality to the Applicant’s employment with the Respondent. They also submitted the Applicant was aware they required him to work in the Pro-Shop.
Conclusion
[48] Having considered all of the evidence and submissions, it is determined that the Respondent dismissed the Applicant from his position of Starter/Marshall as a result of the position being redundant. It is determined that this redundancy flowed from a downturn in business which was genuine as reflected in the Financial Statements. In accordance with s.385, as FWA does not have jurisdiction to hear unfair dismissal applications when there are circumstances of genuine redundancy, the application made pursuant to s.394 must be dismissed. I Order accordingly.
COMMISSIONER
Appearances:
Mr Anthony Louis, for himself
Mr Wally Lee, Clubs Queensland Pty Ltd
Hearing details:
Brisbane,
Friday, 19 February 2010
Tuesday, 13 April 2010
1 PN283 Transcript of Proceedings.
2 Statement of Ms Akiko Thomas.
3 Document of Mr Anthony Louis.
4 Statement of Keri Gardiner.
5 Statement of Ms Akiko Thomas.
6 PN474-493, Transcript of Proceedings.
7 Statement of Ms Akiko Thomas.
8 PN190-194, Transcript of Proceedings.
9 PN112, Transcript of Proceedings.
10 PN190, Transcript of Proceedings.
11 (2004) FCR 388 at 404-405.
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