Mr Glenn Campbell v Hindmarsh McDonald Pty Ltd First Respondent Eastern Accounting Pty Ltd Second Respondent

[2014] FWC 5327

[2014] FWC 5327

FAIR WORK COMMISSION

DECISION

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

Mr Glenn Campbell
v
Hindmarsh McDonald Pty Ltd - First Respondent
Eastern Accounting Pty Ltd - Second Respondent
(U2013/10337)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 6 AUGUST 2014

Application for relief from unfair dismissal - extension of time, genuine redundancy.

[1] This application pursuant to s394 of the Fair Work Act2009 (the Act) was allocated to me for the purpose of resolving the jurisdictional objections of the respondent Hindmarsh McDonald Pty Ltd (Hindmarsh).

[2] Mr Wesley Hindmarsh lodged an Employer's Response to Mr Campbell's application. It identified Mr Campbell's employer as Eastern Accounting Pty Ltd (Eastern).

[3] I have ordered that this application be amended to name Hindmarch McDonald Pty Ltd as the first respondent and to join Eastern Accounting Pty Ltd as a second respondent.

[4] Mr Campbell was self-represented and Hindmarsh (or Eastern) was represented by Mr Wesley Hindmarsh.

[5] I heard both parties’ evidence and submissions separately.

[6] Hindmarsh’s (or Eastern’s) first objection to Mr Campbell’s application was that it was not lodged within the time limit prescribed by the Act.

[7] Mr Campbell was informed of his termination of employment on 29 April 2013. He continued to work until 17 May 2013. His application was lodged on 6 June 2013.

[8] Hindmarsh (or Eastern) submitted that the date of termination of employment, and thus the starting date for calculating the 21 day statutory time limit for lodgement, was 29 April 2013, as this was the date on which he told Mr Campbell his employment was to be terminated.

[9] Hindmarsh (or Eastern) conceded that Mr Campbell continued to work until 17 May 2013. Given Mr Campbell’s final day of employment at Hindmarsh (or Eastern) was 17 May 2013, I am satisfied that this date was the effective date of Mr Campbell's termination of employment. Consequently Mr Campbell’s application was not lodged out of time and there is no need for any extension of time for lodgement.

[10] Hindmarsh (or Eastern) also submitted that the dismissal of Mr Campbell was a genuine redundancy. Hindmarsh submitted that Hindmarsh (or Eastern) was a small business employer with six employees at the date of Mr Campbell’s termination of employment which had been taken over by another entity, of which Mr Hindmarsh is also a director.

[11] Mr Campbell submitted that there was not a genuine redundancy, that there was no valid reason for his dismissal and that he had been harshly, unjustly or unfairly dismissed from his employment.

[12] Was there a genuine redundancy?

“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”.

[13] There was no evidence before me in support of Hindmarsh’s (or Eastern’s) submission that there was a genuine redundancy.

[14] In both its written submission dated 16 April 2014, and its Employer’s Response dated 31 October 2013, Hindmarsh (or Eastern) provided nothing more than a copy of Mr Campbell’s employment contract and a copy of a hand-written notice of termination.  The only factual matters established by these documents are that Hindmarsh (or Eastern) hired Mr Campbell on 24 June 2011 and commenced the process of terminating his employment in April 2013.

[15] In its written submission Hindmarsh (or Eastern) stated that Mr Campbell’s position no longer existed “in the selling or purchasing entity” and he could not be deployed to any other trading entity related to the vendor. There was no supporting evidence for this submission.

[16] Mr Campbell alleged that other individuals had been hired to perform his role after the termination of his employment. This contention was not addressed by Hindmarsh (or Eastern).

[17] I cannot be satisfied that Hindmarsh (or Eastern) no longer required Mr Campbell’s job to be performed by anyone when it terminated his employment.

[18] I am satisfied that there was no consultation in compliance with any instrument or otherwise, in relation to the termination of Mr Campbell's employment.

[19] I am satisfied that the corporate entity which purchased Hindmarsh (or Eastern), the new accounting company of which Mr Hindmarsh is a director, was an associated entity for the purpose of considering the possible redeployment of Mr Campbell. I am satisfied that no attempt was made to consider the redeployment of Mr Campbell in that associated entity.

[20] When determining whether or not a dismissal is harsh, unjust or unreasonable I must take into account those matters set out in s387 of the Act. I did so in relation to this application.

[21] I have considered ss387(a). I am not persuaded that there was a valid reason for the dismissal of Mr Campbell relating to either his capacity or conduct. I am not satisfied there was a redundancy.

[22] I have considered ss387(b). Mr Campbell was not notified of any reason for his dismissal until he was given a hand-written notice of termination of employment on 29 April 2013. The reason provided by Hindmarsh (or Eastern) did not relate to his capacity or conduct.

[23] I have considered ss387(c). There was no reason provided by Hindmarsh (or Eastern) for Mr Campbell’s dismissal relating to his capacity or conduct and therefore there could be no relevant opportunity to respond. There was no opportunity to respond to any reason Hindmarsh (or Eastern) might have had for his dismissal, including redundancy. There was no consultation about any issue.

[24] I have considered ss387(d). There was no discussion in relation to any issue relevant to Mr Campbell’s dismissal. There could therefore be no unreasonable refusal to have a support person present at those discussions.

[25] I have considered ss387(e). Unsatisfactory performance was irrelevant.

[26] I have considered ss387(f) and ss387(g). I am satisfied that the size of Hindmarsh (or Eastern) or any related enterprise impacted on its procedures. That is probably best demonstrated by the total absence of procedures. However, considering Mr Hindmarsh’s executive experience in directing an enterprise of this nature, and his professional qualifications, I have not given the absence of dedicated human resource management or expertise in Hindmarsh (or Eastern) any weight.

[27] Pursuant to ss387(h) I have considered Mr Campbell’s period of service and the absence of any complaint by Hindmarsh (or Eastern) as to his conduct or capacity.

[28] I have considered the lack of consultation with Mr Campbell. There was no discussion about any possible alternative to dismissal. Demotion, job sharing or a process of merit selection were not discussed. Nothing was discussed.

[29] Hindmarsh (Eastern) produced no evidence in relation to any of these matters. The sum total of Hindmarsh’s (or Eastern’s) submission was that Mr Campbell's job no longer existed, Mr Campbell could not be deployed elsewhere and Mr Campell’s entitlements had been discharged in a timely manner. These submissions do not go to establishing a genuine redundancy.

[30] Hindmarsh (or Eastern) produced no evidence to support its submission as to the number of persons employed at the date of termination of employment, offering only its submission dated 16 April 2014 to substantiate that Hindmarsh (or Eastern) satisfied the requirements of s23 of the Act. However, I have considered the facts of this case on the presumption that Hindmarsh (or Eastern) would fall within the ambit of the Small Business Fair Dismissal Code (the Code).

[31] The Code is designed to assist a small business with executing its redundancy procedures and, in turn, assist the Commission in determining whether that redundancy is genuine.

[32] After an analysis of the facts before me I am not satisfied that Hindmarsh’s (or Eastern’s) actions were consistent with the obligations conferred upon it by the Code.

[33] I am not satisfied that Mr Campbell’s termination of employment arose from a genuine redundancy. I am satisfied that the termination of Mr Campbell’s employment was instead harsh, unjust or unreasonable.

Remedy

[34] When considering remedy I considered all of those matters to which my attention is directed by s390, s391and s392 of the Act.

[35] I am satisfied that reinstatement is not appropriate in all the circumstances of this application. I am satisfied that an award of compensation is appropriate in all the circumstances of this application.

[36] I have taken particular account of the circumstances surrounding the termination of Mr Campbell’s employment, the length of Mr Campbell’s employment, the fact that Mr Campbell has been able to secure work subsequent to the termination of his employment and my conclusion, based on my observation of Mr Hindmarsh and his evidence, that in any event, Mr Campbell was not likely to retain his employment with Hindmarsh (or Eastern) for longer than six weeks.

[37] I consider payment of 6 weeks compensation at Mr Campbell's previous gross weekly wage to be appropriate in all the circumstances.

[38] I order that $9384, less tax at the applicable rate, be paid to Mr Campbell by Hindmarsh and or Eastern, which corporations will be jointly and severally liable for that sum, within 14 days of the date of the Order which will be published simultaneously with this decision.

SENIOR DEPUTY PRESIDENT

Hearing details:

2014.

Sydney, 7 April.

Wollongong, 11 June.

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