Mr Dick Windt v Ampcontrol Pty Ltd T/A Ampcontrol WA Pty Ltd
[2014] FWC 3471
•27 MAY 2014
| [2014] FWC 3471 |
| FAIR WORK COMMISSION |
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Dick Windt
v
Ampcontrol Pty Ltd T/A Ampcontrol WA Pty Ltd
(U2014/4790)
COMMISSIONER CLOGHAN | PERTH, 27 MAY 2014 |
Unfair dismissal.
[1] On 19 February 2014, Mr Dick Windt (Mr Windt or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from Ampcontrol Pty Ltd T/A Ampcontrol WA Pty Ltd (Employer).
[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[3] The application was unable to be resolved at conciliation and was referred to me for arbitration on 28 March 2014.
[4] In response to the application, the Employer asserts that the Applicant is not protected from the unfair dismissal provisions in the FW Act because Mr Windt’s dismissal was a case of genuine redundancy.
[5] To assist in the resolution of the Employer’s jurisdictional objection, I issued procedural directions on 4 April 2014 and advised the parties that the matter would be determined following written submissions.
[6] Having received the written submissions, this is my decision and reasons for decision as to whether the Applicant’s dismissal was a case of genuine redundancy and therefore not protected from the unfair dismissal provisions of the FW Act.
RELEVANT LEGISLATIVE FRAMEWORK
[7] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:
“(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.”
[8] The meaning of genuine redundancy is contained in s.389 of the FW Act as follows:
“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.”
[9] Shortly put, where it is found that a dismissal is a genuine redundancy, it is not an unfair dismissal.
RELEVANT BACKGROUND
[10] The Applicant commenced employment with the Employer on 21 March 2012 as a Key Account Manager.
[11] The Employer is primarily engaged in electrical engineering and manufacturing. Over 80% of its work is carried out in the mining sector.
[12] Between August 2012 and April 2014, the Australian mining sector experienced a significant down turn. The Western Australian mining sector also experienced a reduction in demand.
[13] Between October 2012 and April 2014, a total of 200 employees in the Employer’s Australian workforce have been made redundant. The Employer’s Group organisation has seen a reduction of 231 employees.
[14] I have been provided with communications to employees from November 2012 to September 2013 regarding the Employer’s response to the impact of the downturn in its business activities.
[15] In December 2013, a new Western Australian Manager, Mr Blacklock, was appointed. He was required to review the State’s operations given its poor performance.
[16] Mr Blacklock identified five (5) positions that were no longer required for the Employer’s Western Australian operations. Two (2) of the positions for redundancy identified were Key Account Managers.
[17] Following an assessment of the incumbent Key Account Managers, Mr Windt was selected as one of the employees to be made redundant. The Applicant states he did not see or comment on the skills matrix used to determine which employees were to be made redundant. The Applicant states that such a document does not exist.
[18] On 5 February 2014, the Applicant was provided with a letter of termination of employment by reason of redundancy. The letter of termination denoted that Mr Windt would be considered for vacant positions if he expressed an interest.
[19] Mr Windt indicated verbally that he was interested in three (3) vacant roles.
[20] The Employer determined that Mr Windt was not suitable for the vacant roles.
[21] As a consequence of being unsuitable for the vacant roles, Mr Windt was paid his redundancy payment and accrued entitlements.
APPLICANT’S CASE
[22] The Applicant asserts that his redundancy was not genuine for the following reasons:
- My portfolio of clients is now being serviced by the new Business Development Manager and the Key Accounts Manager, which was retained;
- I am of the opinion that I am suitably qualified and experienced to have been offered at least one of the vacant positions within Ampcontrol.” 1
“ I was not offered the opportunity to be redeployed in any of the three sales positions that was available in Ampcontrol at the time of redundancy;
CONSIDERATION
Did the Employer no longer require the job to be performed because of changes in operational requirements?
[23] The Applicant does not disagree that there was a downturn in the Employer’s business and that between October 2012 and April 2014, a total of 200 employees in the Employer’s Australian operations have been made redundant.
[24] The Applicant agrees that Mr Blacklock reviewed the Employer’s Western Australian operations and that two (2) Key Accounts Manager positions were made redundant. Further, Mr Windt acknowledges that his portfolio of clients is now being handled by the remaining Key Accounts Manager and the Business Development Manager.
[25] While Mr Windt has a view why the Western Australian operations were not successful and that he had the highest sales and projected sales, these views are not relevant to my purpose of determining whether the Employer no longer required a person to fill the position previously occupied by the Applicant.
[26] While the Applicant disputes some aspects of the selection process (and which remain disputed) pursuant to paragraph 389(1)(a) of the FW Act, the meaning of “genuine redundancy”, focuses on whether the person’s job is no longer required to be performed.
[27] Where the Employer has concluded, for operational reasons, to reduce the number of the same jobs, as it has done in this case, from three (3) to one (1), the “genuineness” of the redundancy does not go to a consideration of the selection process. In support of this analysis, I am assisted by paragraph 1553 of the Explanatory Memorandum which reads:
“Whether a dismissal is a genuine redundancy does not go to the process of selecting individual employees for redundancy”.
[28] Simply put, the Commission is required, for the purposes of genuine redundancy, to distinguish between the substantive operational changes of the business leading to positions being excess to requirements, and the process of selecting those individual employees will leave.
[29] Finally, the definition of “genuine redundancy” should not be misconstrued to mean that the tasks and responsibilities of the redundant position cannot be reallocated to remaining employees. The tasks and activities of Mr Windt’s position have continued, it would appear, uninterrupted, except to say that they are performed by another employee as part of their role/position. What has simply happened is that the discrete job occupied by Mr Windt, and known to him and the Employer, no longer exists. The content of the position has been transferred, in whole or part, to other employees.
[30] I again refer to paragraph 1548 of the Explanatory Memorandum which gives the following examples of changes in operational requirements which lead to redundancies:
● 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.
[31] For the reasons set out above, I am satisfied that the Employer no longer wanted the job performed by Mr Windt to be abolished because of changes in operational requirements in accordance with paragraph 389(1)(a) of the FW act.
Has the Employer complied with any obligation in a modern award or enterprise agreement that applied to Mr Windt to consult about the redundancy?
[32] Mr Windt’s offer of employment does not mention either an award or enterprise agreement.
[33] In his application and submission, Mr Windt does not assert that he was employed pursuant to an award or enterprise agreement.
[34] Notwithstanding the uncertainty of whether an award or enterprise agreement applies to Mr Windt, I am satisfied that, on the basis of the documentary material and statutory declarations provided by the Employer, that the consultation provisions generally contained in modern awards have been complied with.
[35] The Employer, since November 2012, through a number of internal memoranda updated employees, including the Applicant, on the operational changes required because of business needs. There was a meeting with the Applicant on 30 January 2014. Finally, the Applicant advised the Employer that he wished to be considered for redeployment into the vacant positions which existed at the time.
Would it have been reasonable, in all the circumstances, for Mr Windt to be redeployed within the Employer’s organisation?
[36] The Applicant does not dispute that he was referred to the “Hiring Managers” of the three (3) vacant positions. All three (3) Hiring Managers considered Mr Windt unsuitable for the positions for a variety of reasons. Due to the demanding business environment, the Employer was seeking persons with “High Voltage systems solutions knowledge”, whereas the Applicant’s skill set and background was in the field of “Low Voltage component sales”. The Employer notes that all three (3) vacant positions were in the eastern states and that it was looking for employees with an immediate skills alignment to realise benefits in the challenging business environment.
[37] Mr Windt contends that he was suitable “for at least one of those positions” and that the “only fair way that anybody can be measured is by having an interview”.
[38] It is not uncommon for people who wish to be considered for a vacant position, to overestimate their capacity to persuade the recruiting person of their suitability for the position. Common knowledge indicates that the selection and process demonstrates, at least, two outcomes. Firstly, not every applicant for a position is interviewed and this is not considered unfair. Secondly, even when more applicants are interviewed than positions exists, not everybody is successful in prosecuting their case as to suitability for the position.
[39] In these circumstances, the Employer had the benefit of employing Mr Windt for approximately two (2) years; a reasonable time, I think, in which to make an assessment of the Applicant’s skills and abilities. With the benefit of that assessment, it came to the view for technical and business reasons that there was not congruence between Mr Windt’s knowledge, skills, experience and the job requirements. I have no reasons to disturb the conclusion reached by the Employer.
[40] For completeness, I note that the Employer did not proceed to fill two (2) of the three (3) vacant positions for business reasons.
[41] The remaining position required software engineering skills and experience which, the Employer asserts, the Applicant does not possess.
[42] In total, I am satisfied that the Employer considered redeployment of the Applicant within the enterprise, and the provisions of s.389(2) of the FW Act are not applicable.
CONCLUSION
[43] For the above reasons, I find that Mr Windt’s dismissal was a genuine redundancy. Accordingly, the application must be dismissed. An order to this effect will be issued jointly with this Decision and Reasons for Decision.
COMMISSIONER
Final written submissions:
Respondent: 9 and 13 May 2014.
Applicant: 7 May 2014.
1 Mr Windt’s application
Printed by authority of the Commonwealth Government Printer
<Price code C, PR551020>
0
0
0