Mr GG v Respondent
[2011] FWA 4843
•26 JULY 2011
[2011] FWA 4843 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
MR GG
v
RESPONDENT
(U2010/3125)
COMMISSIONER GOOLEY | MELBOURNE, 26 JULY 2011 |
Application for unfair dismissal remedy.
[1] Mr GG was employed by the Respondent from 3 October 2007 until his employment was terminated on 1 September 2010.
[2] Mr GG lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed. The application was referred to conciliation on 3 February 2011 however the conference did not take place.
[3] A jurisdictional hearing was held on 19 May 2011 and I granted leave for Mr GG to amend his application to name the correct respondent.
[4] Mr GG represented himself and Mr AVB, the owner of the Respondent appeared for the Respondent.
[5] The parties agreed to have the matter conducted by way of a conference. However all witnesses gave their evidence under oath.
[6] Mr GG gave evidence on his own behalf and Mr AVB and Ms TA gave evidence for the Respondent.
Jurisdiction of Fair Work Australia
[7] There is no dispute that Mr GG is a person who was protected from unfair dismissal. Further, the employer was not at the time of the termination of Mr GG’s employment a small business. However it was submitted that Mr GG had been made redundant. Fair Work Australia has the jurisdiction to determine the application.
The Evidence
[8] Mr GG was employed by the Respondent as casual console operator.
[9] It is not disputed that in April 2011 the Respondent was approached by a company who wished to buy the business. The purchasing company advised the Respondent that it intended offering all existing staff employment.
[10] In June 2011 the Respondent sent a letter to all customers advising them of the sale of the business and advising them that they would “be dealing with the same local staff.”
[11] Staff were also advised that they would be employed by the new company.
[12] Two weeks after making that announcement the purchasing company advised the Respondent that casual employees would not be guaranteed employment.
[13] Mr AVB called a meeting of all site managers to advise them of this change and directed them to contact all casual employees to advise them of this development.
[14] Ms TA gave evidence that she spoke to all the site managers and was informed that all casual staff were given this information either directly or by diary entry or by telephone.
[15] Mr GG disputed that he received this advice.
[16] On 19 August 2010 Mr GG received a letter from the Respondent which advised that his employment would end on 31 August 2010 as the Respondent would cease to operate the service station.
[17] The letter advised that Mr GG should contact the new owner to see if further casual shifts were available.
[18] Mr GG did not discuss the content of this letter with the Respondent.
[19] Mr GG was not offered any casual work by the new operator. His grievance with the Respondent stems from this. Mr GG said he was misled by the Respondent about the availability of work with the new owner. It was his view that the new owner never intended offering work to the employees of the Respondent.
[20] In my earlier decision I drew the parties’ attention the provisions of the FW Act which provides that a dismissal is not unfair if the dismissal arose from a genuine redundancy.
[21] The FW Act provides that a person has not been unfairly dismissed in cases of genuine redundancy:
“S385 What is an unfair dismissal
A person has been unfairly dismissed if FWA 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.”
[22] 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.”
The Relevant Award
[23] Mr GG’s employment was regulated by the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Award).
[24] The Award provides at clause 8 for consultation about workplace change as follows:
“8. Consultation regarding major workplace change
8.1 Employer to notify
(a) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.
(b) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.
8.2 Employer to discuss change
(a) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.
(b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1.
(c) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”
[25] I accept the evidence of the Respondent that once the decision to sell the business was made the employees were informed. I further accept the evidence of the Respondent that it was understood by them that all employees would be offered employment with the new operator.
[26] I accept the evidence of the Respondent that once the new operator advised them that casual employees would not automatically be employed, the Respondent advised casual employees of the need to apply to the new employer for work.
[27] I further accept that on 19 August 2011 the Respondent provided written notice of the termination of Mr GG’s employment to take effect from 1 September 2011 and written advice that Mr GG would need to apply for work with the new operator.
[28] While it is unfortunate that the initial arrangement made by the Respondent with the new owner did not eventuate I do not consider that the Respondent misled its employees.
[29] I find that Mr GG’s position was redundant. Because of his casual employment status he was not entitled to redundancy pay.
Could Mr GG have been redeployed?
[30] This is not relevant in circumstances where the business had been sold.
Conclusion
[31] I find that Mr GG’s employment was terminated because of a genuine redundancy and therefore Mr GG’s employment was not terminated unfairly. The application is dismissed.
COMMISSIONER
Appearances:
Mr GG on his behalf.
Mr AVB for the Respondent.
Hearing details:
2011.
Melbourne:
July 27.
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