Mr John Trevor Trembath v Kabi Organic Golf Course
[2011] FWA 8346
•2 DECEMBER 2011
[2011] FWA 8346 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr John Trevor Trembath
v
Kabi Organic Golf Course
(U2011/7768)
COMMISSIONER SPENCER | BRISBANE, 2 DECEMBER 2011 |
Application for unfair dismissal - jurisdictional - genuine redundancy
[1] This decision relates to an Application made to Fair Work Australia (FWA) pursuant to s 394 of the Fair Work Act 2009 (the Act), by Mr John Trevor Trembath (the Applicant).
[2] The Application relates to the termination of the Applicant’s employment from Kabi Organic Golf Course [and Orchard] (the Respondent). The Respondent objected to the Application on the ground that the termination was a case of genuine redundancy as per the definition in s 389 of the Act.
[3] The Applicant asserted that in accordance with s 385 of the Act, his dismissal was unfair and not a case of genuine redundancy.
[4] The Applicant was self represented and the Respondent was represented by Mr Clifford of Clifford Gouldson Lawyers.
[5] Directions were originally set for the filing of material in relation to the merits of the matter and the jurisdictional objections made by the Respondent. The matter was then set down for hearing of all matters in relation to jurisdiction and the Applicant’s contentions that the termination was a case of an unfair or unlawful dismissal as proposed by the Applicant.
[6] The Respondent later confirmed that the only jurisdictional objection they were pursuing was that of the termination being effected as a case of ‘genuine redundancy’.
[7] In response to matters raised by the parties, two Directions conferences by telephone were held; regarding procedural issues. A series of difficulties arose as to the proposed hearing place and dates, and the unavailability of witnesses at particular dates and their impediments to attending at various courthouses, which provided difficulties in listing the matter.
[8] The Applicant was based on the North Coast, near the Respondent’s Golf Course. The Respondent Ms Merchant had moved to North Queensland and on the basis of medical evidence, was unable to participate in a hearing. The Respondent’s solicitor was based in Toowoomba. The Respondent’s Accountant was based in Brisbane, and was concerned at having to spend time away from his practice to attend a hearing on the North Coast. Further, the other Applicant stated his medical condition precluded him from travelling by car to Brisbane. The Respondent at the time of the initial proposed listings also had one of the Directors and the Company Accountant unable to attend due to other commitments.
[9] In consideration of these range of issues and on reviewing the material once the Directions had been discharged and the written evidence and submissions assessed, it was clear that the jurisdictional matter should be dealt with initially, in accordance with s 396. Given there were contested facts between the parties, a Directions hearing was set to consider the listing of the jurisdictional matter pursuant to s 396 and s 397 by telephone. The matter was listed for Directions hearing by telephone and a comprehensive listing setting out the legislative provisions was provided to the parties. Taking into account all of these issues, the jurisdictional hearing was listed to occur by telephone. However given the other Applicant, after the Directions hearing indicated he could now travel to Brisbane, the hearing was listed for Brisbane on 16 November 2011 with final submissions provided by consent by telephone, after the transcript, was made available to the parties.
Relevant legislation to the procedural issues of conduct of matters before Fair Work Australia
[10] Section 396 states that FWA must consider a number of matters before considering the merits of the Application.
“Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[11] It is necessary to consider the jurisdictional issue of the genuine redundancy (s. 389) in the first instance. If the termination of the Applicant’s employment was a case of genuine redundancy, then the s 394 application, is jurisdictionally barred and cannot proceed.
[12] In deciding how this matter was to be appropriately progressed, the provisions relating to conduct of matters before FWA are relevant.
Section 589 - Procedural and interim decisions
Section 589(1) states:
“(1) FWA may make decisions as to how, when and where a matter is to be dealt with. ........”
[13] Further to this, specifically in relation to applications made pursuant to s 394, the initial matters to be considered under s 396; were dealt with prior to consideration of the merits.
Section 397 matters involving contested facts states:
“FWA must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.”
[14] By consent, the Applicant’s matter was heard jointly with another employee; Mr White. Correspondence was forwarded to all parties in response to a series of procedural matters that were raised, after the final Directions hearing. A significant amount of material covered at the hearing was common to both Applicants accordingly it has been included in both decisions.
Relevant Legislation to the Application
[15] All parties provided submissions and a series of witness affidavits. The parties were provided with the relevant legislative provisions with the listing for the Directions hearing:
Section 385 - What is an unfair dismissal The following states:
“A person has been unfairly dismissedif 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.”
Section 389- Meaning of genuine redundancy states:
“(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 ofgenuine 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.”
[16] This relevant extract of the Explanatory Memorandum which sets out clause 389 - Meaning of genuine redundancy was provided to the parties:
“Clause 389 – Meaning of genuine redundancy
1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.
1547. Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.
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.
1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise.
1550. Paragraph 389(1)(b) provides that it will not be case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.
1551.Subclause 389(2) provides that a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).
1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.
1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal...”
Background
[17] The Applicant was employed as a full time employee; as the Head Gardener.
[18] Ms Rena Merchant (the Respondent), as a sole trader, operated the Kabi Organic Golf Course and Orchard. The business was comprised of three parts; an organic orchard, an organic golf course and a clubhouse.
[19] The Respondent set out that the Applicant’s position was made redundant by Ms Merchant due to a decision to close down the whole business based on the Respondent’s ill health and the business not being financially viable to continue. Dr Vivienne Taylor provided two affidavits as to Ms Merchant’s ill health. The Respondent’s accountant, Mr Offenhauser provided an affidavit detailing in particular the last 3 - 4 years of declining returns of the Respondent’s business and noting it’s financial decline since 2002.
[20] The evidence of the Respondent and the Applicant confirmed that Ms Merchant communicated to the Applicant on 28 April 2011 verbally and in writing that his position and those of 9 other employees were being made redundant. The Applicant was provided with the following letter of redundancy.
“...Further to our meeting of today I regretfully confirm that your employment with us is terminated with effect from 28th April 2011.
This is due to your position having to be made redundant, and in no way reflects your performance in your job, which has been entirely satisfactory.
Kabi Organic Golf Course will be closing its gates as of the 30th April and consequently your services are no longer required.
This letter serves as notice of termination and any holiday entitlements will be paid out today. You will also receive 3 weeks pay in lieu of notice.
We thank you for your efforts and contribution will be happy to supply a written reference if required and wish you all the best for future endeavours...” 1
[21] The letter stipulated the anticipated date the “gates would be closed” was 30 April 2011. Later that day on 28 April 2011, the closure date was amended to 1 May 2011 to allow for a pre-booked function and to operate on a skeleton staff of green keepers.
[22] The medical evidence of Dr Taylor referred to the ongoing chronic health problems suffered by Ms Merchant; and that she had suffered this condition for a number of years and has been in “extreme ill health”, and had to avoid stress in her life.
[23] Mr Craig Offenhauser, the Respondent’s Accountant, confirmed the financial state of the Respondent’s business taken from the tax returns from 2002 - 2009 and the unaudited statements for 2010/2011 as follows:
“...Over the last 5 years, we have provided various financial analyses to the proprietor for the purpose of restructure of the business to place it on a more profitable basis, and then further advice as to the complete closure of the business due to the financial unsustainability of their operating model. The primary causes of the unsustainability of the business have been:
- its geographical position -it's distance from populated areas such as Noosa and Tewantin, and its low surrounding existing population and prospective population growth; and
- its certification as organic by definition eliminates the use of chemical pesticides and fertilisers resulting in a higher labour cost per dollar of income in comparison to traditional golf courses and orchards.
Over the last 10 years the proprietor has investigated and implemented several proposals, with the objective of establishing Kabi Organic Golf Course & Orchard as a "destination" sporting and function centre, including:
- relocating and renovating a historical building from the surrounding area, and incorporating it into the golf course club house;
- the purchase of surrounding farm land and incorporating the purchase and raising of organic cattle for commercial sale;
- the building of a restaurant cum function centre for 120-150 people to attract both business functions/conference/seminars and wedding receptions; and
- the establishment of a "Fairway Functions" website.
Over the last 3 to 4 years, we had come to the conclusion that the business was financially unsustainable and we advised the proprietor of this fact. During that time the proprietor's health deteriorated substantially and it was blatantly clear that the business could not continue. We advised her to close the business and sell the assets.
Despite her absolute determination to find a viable financial operating model for the business, her personal health could no longer take the stress and strain, and she seriously risked her own personal financial ruin.
We had several meetings with the proprietor during the months of March and April, and she advised us on the 28th April 2011 that she had decided to close the business not only due to the financial position but also her poor personal health.
Since that date, we have overseen the calculation and refund of paid membership fees to all club members. Appropriate action was taken with respect to notifications that the golf course and clubhouse were being closed immediately. We have forwarded a full analysis and details to KPMG who is assisting us in developing a plan to sell the assets...” 2
[24] In accordance with the redundancy decision; the Respondent paid all outstanding leave entitlements and payment of wages in lieu of notice to the Applicant. Further to this on 9 June 2011, the Applicant was paid the applicable severance pay. This payment of severance, occurred later, as the Accountant, subsequently calculated that the Respondent did not have less than 15 employees, due to operating a related corporate entity, the organic cattle station.
Summary of Submissions by the Respondent and Evidence
[25] The submissions made by the Respondent contended that the Applicant’s dismissal was a result of a genuine redundancy, and, consequentially, FWA does not have jurisdiction to hear the Application. In the second instance, the Respondent contended that the Applicant’s dismissal was fair, and not harsh, unjust or unreasonable, as the Applicant’s position of employment with the Respondent, was made redundant.
[26] It was the main submission of the Respondent, with respect to s 389 (1) (a) of the Act, that the Applicant’s position of employment was made redundant, due to the Respondent’s ill-health, and the business no longer being financially viable. In support of this, the Respondent confirmed that no one was employed to perform the job previously performed by the Applicant.
[27] The Respondent submitted that, the Applicant was informed, verbally and in writing on 28 April 2011, that his employment was made redundant. As stated the reason for this was cited as Ms Merchant’s ill health and the business suffering continued financial losses and would be closed on 30 April 2011. Later on the day, the employees were informed of the redundancy, it was submitted, the Applicant was made aware that the business would be open for an additional day due to a pre-booked event. At the same time, the Applicant was made aware of the fact a skeleton staff would be employed until such time that the business was sold. This was supported by the evidence of Mr Troy Maclaren, Course Superintendent. 3
[28] With respect to Ms Merchant’s ill health it was submitted that, according to the medical opinion of Dr Taylor, the Respondent was suffering from ongoing chronic health problems that caused her to endure severely incapacitating pain and disability, which had been occurring for a number of years. This led Dr Taylor to determine, that the Respondent was unable to continue working.
[29] With respect to the financial position of the business, it was submitted that the business was no longer financially viable according to Mr Offenhauser’s examination of the financial records. 4 This opinion, it was submitted, came as a result of continued significant financial losses, and in discussion with the Respondent in March and April 2011, the determination was made that the business could no longer be sustained. However Ms Merchant, made the final decision herself on 28 April 2011, to close the business.
[30] It was submitted that as the business was ceasing its operations, there were no positions created or alternative positions available for the Applicant. Additionally, the Respondent contended that because of this, it was not reasonable in the circumstances of the Applicant, to redeploy him within the enterprise, as it was no longer operational.
[31] With respect to s 389 (1) (b) of the Act, the Respondent submitted that the employment of the Applicant was governed by the terms of the Gardening and Landscaping Services Award 2010. 5 In regard to the obligation in a Modern Award with respect to a redundancy, the Respondent submitted that in clause 8 of the Award (set out later), there is an obligation for the Respondent to consult with the Applicant “in the event of introducing a major change that will have a significant effect”.6 It was argued these consultative provisions had been complied with.
[32] The Respondent supported this assertion, by making reference to the events of 28 April 2011 in which Ms Merchant after making a definite decision to close down the business on that morning, notified the employees of this major change to the operational requirements of the business and the significant effect of this change on their employment; therefore complying with the Award obligation. This, in addition to the Applicant’s ability to discuss the redundancy with this Respondent, at the meeting of employees it was submitted, demonstrated compliance with clause 8 of the Award.
[33] The evidence of Dr Taylor demonstrated that Ms Merchant’s poor health contributed to the closure of the business. The Respondent stated that the closure of the business was inevitable. Mr Offenhauser stated that he had tried to get Ms Merchant to close the business and it was widely known by employees (as follows) that the business was losing money:
“Right. Why wasn't there earlier consultation or was there earlier consultation?
---Everybody at that - every employee knew. Graeme Shorland will verify this, and I know - and I'm sure Mr White knows this, and I know - Commissioner, I would be certain that just about everybody knew that we were under sheer financial stress, serious financial stress. Every year I would go up there and get budgets. Every year I would tell them to cut. Every year I would tell them, "We cannot continue like this. We've got to cut the expenses, cut the expenses, cut the expenses." There were salary increases or wage increases but you can't leave a person on one wage for five years and never give them an increase, for crying out loud, when the CPI is 3 per cent so I just had to deal with that because - well, you just can't do that to somebody. Everyone knew we were under sheer financial stress and for a substantial period of time - seven years, easy seven years. Everyone knew. The last four years, Ms Merchant's health was deteriorating seriously, and the main reason for that was the financial stress. Someone suggested that I probably put that stress on her because I'm worried about the financial side.
Right?---Maybe I did, but that's - I tried to get her to close that place down in 2006, 2007, 2008, 2009. "Let's sell it, let's sell it, let's sell it," because I couldn't see any way, and it was her dream, it was her determination. "No. Let's try something else, let's try something else, let's try something else," and then when your client makes that decision you have to support them in the best way you can and use your professional skills to help them achieve their goals. So was there consultation? The week before the 28th, we had continuous discussions and I made it very clear to Ms Merchant that, "We cannot continue like this, Rena. It is killing you financially and physically, and we cannot continue," and when she made the decision - because she would argue against it. She would argue against it. She was arguing against it. I was relieved that she had made the decision, and then on that day I wasn't - I was there the following day.... Originally there was only going to be two but - two greenkeepers, but then the main greenkeeper said, "Look, we can't do it on two. It's just too damn big." It's 180 acres - I think it is. 182 acres. "We can't do it." So then they got increased to four. The specific area of the orchard was we don't want fruit fly, but we've got to strip it and dump it. But there were - - -
Is that why you allowed people on to pick the fruit, for the fruit fly?---That's because if you cross that with the council you can get in a lot of trouble. So - and she also wanted to give - her attitude was, "Look, I don't want any money for it. Just give it away. Give it to charities," and she actually organised for it to be given away because she didn't want any money. She said, "Listen, just strip it off, then the trees are right. The greenkeepers can keep everything else okay, and we'll just get rid of everything." But there was no income received. The idea was to close the business down and reduce expenditure to the absolute bone.” 7
[34] The Respondent stated that significant operational requirements flowed from Ms Merchant’s decision to close the business. This decision led to an obvious reduction in staff and the duties required to be performed.
[35] The Respondent provided a series of case authorities in support of the Respondent having met its obligations under s 389 of the Act. The Respondent submitted that pursuant to Forster v Hanson Precast Pty Ltd, 8 a s 394 application can proceed no further if the termination of an employee’s employment was a case of genuine redundancy.
[36] The Respondent submitted that regard must also be had to Kekeris v A. Hartrodt Australia Pty Ltd, 9in which Hamberger SDP made reference to the importance of the explanatory memorandum in determining jurisdictional matters of this nature. His Honour stated:
“When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists.”
[37] Additionally, the Respondent also referred to the decision in Harding v Linbo Pty Ltd (Receivers and Managers Appointed) t/as Noosa Blue Resort, 10 as authority that if the Applicant’s position is no longer required to be performed by anyone, this can be confirmed by no one performing that role within the organisation. This was the case with the Applicant’s job after the closure. Additionally, it was submitted, that on the basis of Manoor and Yatish Prasad v United Petroleum Pty Ltd;11 except where stated in a Modern Award or agreement, there is not an absolute requirement to consult with employees about a proposed redundancy. However, in the current matter adequate consultation had occurred in accordance with the Modern Award.
[38] The Respondent referred to the case of Maswan v Escada Textilevertried t/as Escada 12 where Vice President Watson held:
“I have found that the reason for termination was redundancy consequent upon a restructure of the operations and the merger of two positions. If this restructure had not have occurred there would not have been a termination. This reason cannot reasonably be described as related to Mr Maswan’s capacity or conduct and hence much of the provisions related to such terminations will not be relevant to the fairness of the termination...”
[39] Similarly the reason for the Applicant’s termination was redundancy consequent upon the restructure of the operations (caused by the closure), and was unrelated to his capacity or conduct.
[40] The Respondent submitted that where there is no opportunity for redeployment or the employee does not have suitable qualifications or experience where a redundancy occurs, per Taylor v Tatiara Meat Company Pty Ltd, 13 this gives weight to instances where a redundancy is genuine. The four retained employees were skilled and qualified organic green keepers.
Summary of Submissions by the Applicant and Evidence
[41] The Applicant had been employed for over six years with the Respondent. For the last three years as the Head Gardener.
[42] The main contention of the Applicant, was that the Respondent did not engage in appropriate consultation with him regarding his dismissal or appropriately consider his possible redeployment.
[43] He argued that he had undertaken unsupervised duties in maintaining the golf course. He conceded he did not hold the qualifications of the green keepers that were retained. They held a certificate IV in Horticulture and Turf Management. He stated he had attained ‘Level 1’ green keeping. However he was frustrated that one of the green keepers whose employment had been maintained, had only been employed for eight weeks. He stated he could have undertaken work of an equal standard.
[44] He argued that the Respondent did not appropriately consult with him on an individual basis. He stated he was told of the decision and then farewell drinks were provided. He submitted that the letter of termination from the Respondent setting out the dismissal; as a genuine redundancy was not provided to him until later. Although the Respondent argued that it was left for him on his desk, during the meeting held to discuss the redundancy. The Respondent suggested that the Applicant couldn’t recall this; perhaps due to his intoxication from the drinks. The Respondent later had the letter collected from his desk and delivered to him at his home.
[45] The Applicant argued that he could have possibly undertaken duties at the organic cattle station (the associated entity) where he stated he had worked. Further, he stated that there was still maintenance work required to be done on the grounds of the golf course and orchard he could have done. In regard to this he submitted that prior to the dismissal; he had observed a female, referred to as ‘Crystal’ doing gardening work (part of his duties) on the site.
[46] In addition the Applicant submitted that his initial understanding was that only two staff were to be retained for the maintenance and this became four.
[47] The Applicant stated he had received two written warnings from the Respondent. However there is no evidence that these were taken into account in the Respondent’s decision. The redundancies related to the positions that were no longer required.
Considerations
[48] The obligation to consult is not an absolute obligation to consult. The Full Bench in Ulan Coal Mine Limited v Henry Jon Howarth and others (as set out below):
“We do not consider, in the particular circumstances of the present matter and having regard to the obligation under sub-clause 23.1 of the Agreement, that a further round of discussions was required to be held by the Company with the employees to be dismissed, either separately or as a group. This does not mean that such separate discussions might not be worthwhile and appropriate e.g. as part of the consideration of measures to mitigate the adverse affects of terminations or to ensure that opportunities for other employment and assistance are properly examined. However they are not part of the discussions envisaged and required under sub-clause 23.1 of the Agreement and that is the test in these particular circumstances. In different circumstances this will of course vary according to the terms of particular awards and agreements.” 14
[49] The obligation to consult is to be discharged in accordance with the obligations in the provision of industrial instruments. The test in relation to consultation in this matter arises from clause 8 the Gardening and Landscaping Services Award 2010 15 set out for convenience below:
“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.”
[50] The evidence of Mr Maclaren demonstrated that discussions were held on the issues of the closure of the business and redeployment. The decision to close the business was made on the morning of 28 April 2011, and discussions held further that morning, the Applicant confirmed as follows:
“During that first meeting, what was discussed?---Rena's decision to close the golf course and that she was looking to keep a skeleton crew on, and unfortunately due to her health and other issues, eg financial costs of the enterprise, she had to close the course and it would be put on the market for sale when she saw fit.
Was there any other discussion? Was there an opportunity for everyone to ask questions to Ms Merchant about - - -?---Definitely. Yes, I mean, we were all shocked. You know, we sat around there a little bit dumbfounded, I suppose. I do believe we were still there - I was definitely still there when Graeme arrived, and the then Graeme the pro shop manager was informed of the decision. Then we started to talk about what needed to be done. He made us aware that there was a private function booked for the Sunday and that we could not close on that day. We had to follow up on that, so then the decision was made to tell the members, "Go ahead with this function," basically sort out what we needed to sort out prior to the actual closing.
During these conversation, people had an opportunity to discuss with Ms Merchant the nature and the reasons for her decision, and in fact Ms Merchant even proffered some of that information?---Yes. Correct.” 16
[51] Further Mr Maclaren provided evidence that he attended the meeting on 28 April 2011, with Ms Merchant and that staff were told of the decision and changes to the operations:
“During these conversation, people had an opportunity to discuss with Ms Merchant the nature and the reasons for her decision, and in fact Ms Merchant even proffered some of that information?---Yes. Correct.” 17
[52] The Applicant had an opportunity to the discuss redundancy with Ms Merchant; the consultation was adequate. In accordance with the decision in Ulan Coal Mines Limited v Honeysett and other 18 clause 8 of the Award does not require individual consultation.
[53] In terms of the issue of possible redeployment of the Applicant, the Respondent referred to Ulan Coal Mines Limited v Honeysett and other. 19 In this decision the Full Bench said as follows at paragraph 28;
“...The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the role, 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...”
Further at paragraph 34 the Full Bench said as follows;
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) that a redundant employee be placed into 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. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard...” 20
[54] The nature of the qualifications and experience held by the Applicant are important to determining the issue of redeployment. The only positions available were those of the required organic green keepers, with appropriate qualifications. The Applicant conceded he did not hold the equivalent skill or qualifications, therefore it was reasonable that the Applicant was not redeployed in these positions.
[55] At paragraphs 138 and 280 of the transcript, Mr Offenhauser and Mr Maclaren confirm the Applicant’s job was not being performed by anyone. The Applicant conceded no one was doing his job:
“To the best of your knowledge though, is anyone performing the role of a gardener at the moment?---No, not that I know of.” 21
[56] The Applicant submitted a person referred to as ‘Crystal’ was doing his job. Mr Offenhauser maintained that Crystal was not employed:
“- - - and the day after the redundancies she was still working on the golf course doing my duties?---Commissioner, Crystal, as I said earlier, was a personal friend who assisted Ms Merchant in her home when she was living at Merchant Beach or whatever, and in the cleaning and in her own little garden, and she was not associated with the business and had never been associated with the business. Rena would see something that she wanted to do. She might want to put a flower bed in that corner, or she might want to grow some vegetables in that corner, so she would do it herself, or she would, say, get Crystal to help her, but she was not ever anything to do with the business. It was Ms Merchant and Crystal, and it was never associated - and it was never taking somebody else's job. It was never had anything to do - it was a personal thing non-connected to the business at all times and that ran for years. That ran for years.
Why was it then Crystal was pruning hedges with a petrol-powered hedger, which was my responsibility? Why was she brush-cutting the banana patch and tidying the banana patch, which was my responsibility, which are all parts of the golf course?---Yes. Well, the golf course is 182 acres. Rena had vegetable patches behind the machinery shed. There are - had many things that she wanted to do but she didn't want to involve in the business, and that's - that were her personal thing. If she wanted to have a special little tree, she'd plant a special little tree herself, not tell anybody, not do anything else, and maintain it herself. That was some of her enjoyment in life that she personally did, and it was unconnected to the business. She didn't have to - she would do it with Rena and not associated with the greenkeepers, not associated with the gardeners, not associated with the orchard, not associated with Shorland in the food and beverage area. It was a personal relationship that she had.” 22
[57] Mr Offenhauser maintained further that even if ‘Crystal’ was doing some work as set out below she was never an employee and also had left the business:
“Okay. Do you recall Crystal working in the garden Friday after the redundancies were handed out?---I believe she was planting out a rosemary plot - a rosemary bush plot for Ms Merchant and continued to do so until the job was finished and then was let go.” 23
[58] The Applicant queried redeployment at the organic cattle farm (the related entity) at which there were two other people working. 24 The Respondent concluded on this basis it was not reasonable to redeploy the Applicant as no other roles were available.25.
[59] The Respondent therefore stated that their obligations under clause 8 were met. In terms of 8.2(c) the communication of the message to the Applicant was given orally and he was given the letter that morning. It is suggested the Applicant couldn’t remember receiving the letter.
It was suggested the Applicant received his letter on 28 April 2011 but it was left on his desk and delivered to him later.
“Well, I'd been there a few years and all of a sudden I lose my job, so what, I'm about to leap out of my skin to go back? "It's understood at the time the respondent announced the course closure that only two employees were to be kept for the maintenance." Is that correct?---No, that's incorrect. I don't remember hearing anything about only two people being kept on. I think where that came from was possibly the conversation that Ms Merchant had with Mr White and Ms Luff, and I'm pretty sure the words were put into her mouth. From what I overheard was that they just assumed that myself and my 2IC Brendan would be kept on. That's the only time that I heard any mention of only two staff being kept on as a skeleton crew.” 26
[60] A definite decision had been made to close the business and the Applicant confirmed this in his evidence:
“Is it that the reason no-one is performing your role at the moment is because operational changes have been made to the business; ie, a decision has been made to shut the business down?---Mm.
Yes? Is that right?---Mm'hm.
Can you speak into the microphone for recording purposes?---Yes.” 27
...MR CLIFFORD: So you have just told me that there was a conversation between after morning tea so at 10 o'clock or 9.30, 10 o'clock, you said?---Mm'hm.
Whereby you were told three things: that the business would be shut - sorry, told two things and you assumed one thing. You were told the business would be shut?---Yes.
You were told that a skeleton staff would remain?---Mm'hm.
You assumed that that skeleton staff would be Mr MacLaren and Mr Scrase?
---Yes, well, the two longest-serving staff members.
You deny that you were told that you were informed of you dismissal and redundancy at that particular point?---I didn't have my - I didn't get my redundancy letter that day.
Well, you say at paragraph 5 of your application, you say, "During morning tea break between 9.00 and 9.30 on 28 April, Rena Merchant gave me verbal notice of my immediate dismissal in front of the fully retained greenkeeping staff members." So you were informed at that point?---What paragraph are you at, please?” 28
And that steps had been taken to mitigate the loss:
“You were told that there would be a skeleton staff?---Mm'hm.” 29
Conclusion
[61] The decision to close the business was based on Ms Merchant’s continued ill-health and the long-term losses from the business. Ms Merchant had resisted the counsel of her accountant for as long as possible; trying many endeavours to maintain her aspirations for this unique business.
[62] Whilst the Applicant maintained he was mislead regarding the number of green keepers to be retained in the skeleton crew, to maintain the business for sale; it is irrelevant as he conceded that he did not hold the equivalent skills or qualifications to these green keepers.
[63] Arising from the decision to close the business the employer, due to the change in operational requirements, no longer required the Applicant’s job to be performed by anyone. There was no evidence; that the Respondent could have reasonably redeployed the Applicant within the business or an associated entity.
[64] The Respondent had also met the obligations to consult arising from clause 8 the Modern Award. The employer made a definite decision on 28 April 2011 to close the business and communicated it to the Applicant that morning. On the evidence, the letter containing the decision (that his job was being made redundant) was also provided to him that day.
[65] In addition as set out, the Respondent has complied with the obligation for consultation under the Modern Award. Further, in accordance with ss 389(2)(a) and (b) there were no redeployment options available to the Applicant.
[66] Accordingly, the Applicant’s dismissal is a case of genuine redundancy pursuant to s 389. Therefore (in line with s 385) it cannot be determined that the Applicant was unfairly dismissed. For all of the aforementioned reasons; the application is jurisdictionally barred; as the termination was a genuine redundancy. The application made pursuant to s 394 is therefore dismissed. I Order accordingly.
COMMISSIONER
1 Termination Letter.
2 Witness Affidavit of Mr Craig Offenhauser, Annexure 1.
3 Witness Affidavit of Mr Troy Maclaren, [5-9].
4 Witness Affidavit of Mr Craig Offenhauser, [5].
5 [MA000101].
6 [MA000101], clause 8.
7 Transcript 16 November 2011 PN170-172.
8 Harrison, SDP, [2010] FWA 5393.
9 [2010] FWA 674, [27].
10 [2010] FWA 6125.
11 Smith, C, [2010] FWA 2571.
12 [2011] FWA 4239.
13 Steel, C, [2010] FWA 5150.
14 [2010] FWAFB 3488, [31].
15 [MA000101].
16 Transcript 16 November 2011 PN411 - PN413.
17 Transcript 16 November 2011 PN413.
18 [2010] FWAFB 7578, [38].
19 [2010] FWAFB 7578.
20 [2010] FWAFB 7578, as cited by Simpson C in Wilson v North Rockhampton Bowls Club Inc[2011] FWA 1928, [83-84].
21 Transcript 16 November 2011 PN823.
22 Transcript 16 November 2011 PN206-207.
23 Transcript 16 November 2011 PN369.
24 Transcript 16 November 2011 PN150.
25 Steel, C, Taylor v Tatiara Meat Company Pty Ltd [2010] FWA 5150.
26 Transcript 16 November 2011 PN363.
27 Transcript 16 November 2011 PN824-826.
28 Transcript 16 November 2011 PN852-857.
29 Transcript 16 November 2011 PN843.
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