Mr Kevin Hetherington v VIP Petfoods Employment Pty Ltd
[2014] FWC 5798
•26 AUGUST 2014
| [2014] FWC 5798 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Kevin Hetherington
v
VIP Petfoods Employment Pty Ltd
(U2014/4653)
COMMISSIONER CLOGHAN | PERTH, 26 AUGUST 2014 |
Unfair dismissal.
[1] On 14 February 2014, Mr Kevin Hetherington (Mr Hetherington or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his employment with VIP Petfoods Pty Ltd.
[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[3] In response to the application, the Employer asserts that:
- the Applicant was not protected from unfair dismissal as his dismissal was a case of genuine redundancy.
[4] I advised the parties that I intended to deal with the Employer’s jurisdictional objection by way of written submissions, and if necessary, either party was able to challenge the submissions or witness statements of the other party.
[5] Following receipt of written submissions, the Applicant requested that the evidence of Mr Browner, on behalf of the Employer, be subject to cross examination. The challenge to Mr Browner’s evidence took place on 5 June 2014.
[6] At the conclusion of the hearing, I indicated to Mr Browner that a copy of the transcript would be made available to him. The purpose of making the transcript available to the Employer was to enable it to make any further submission regarding its jurisdictional objection. I advised the Applicant that he would also be given the opportunity to make a further submission in response.
[7] The Employer and Applicant provided further submissions.
[8] The Employer’s original response to the application was that the Applicant is not protected from the unfair dismissal provisions of the FW Act because his dismissal was a case of genuine redundancy. However, on 10 July 2014, the Respondent sought for the application to be declared invalid as it failed to identify the proper Employer. Accordingly, the application should be dismissed for want of jurisdiction.
[9] This is my decision and reasons for decision as to the Employer’s jurisdictional objections.
[10] I intend to deal with the correct identity of the former employer in the first instance.
CORRECT IDENTITY OF EMPLOYER
[11] The named respondent in the application is VIP Petfoods Pty Ltd T/A VIP Petfoods. The ACN stated in the application is 069 880 164. ACN 069 880 164 is the ACN for VIP Petfoods (Aust) Pty Ltd.
[12] The respondent named in the employer’s response to the application is VMEC Pty Ltd T/A VIP Petfoods Pty Ltd. The ABN provided in the Respondent’s response is 73 155 086 301.
[13] ABN 73 155 086 301 is the ABN for VIP Petfoods Employment Pty Ltd.
[14] The Applicant’s former employer and actual respondent to these proceedings is VIP Petfoods Employment Pty Ltd (Employer).
[15] The address and principal place of business for both VIP Petfoods Employment Pty Ltd and VIP Petfoods Pty Ltd are identical.
[16] Having considered the submissions of both parties, extracts from the Australian Securities and Investments Commission (ASIC) and the witness statement of Ms Bates, I am satisfied that the Applicant’s error in naming the incorrect respondent to these proceedings should not be fatal to his application. I am also satisfied that both parties made errors of an administrative nature and that this may have been caused either by the repetitive use of words “VIP Petfoods” or, in Ms Bates’ case, lack of familiarity with respect to the corporate structure of the business.
[17] I am mindful that the correct identity of the employer was not initially raised in response to Mr Hetherington’s application. Further, the only prejudice which can be “suffered” by the Employer, is having to deal with the application which it would have had to do so if such an error had not been made. Up until its latest submission, the Employer has dealt with the application as if the identity of the correct employer had been made in the application.
[18] In view of the above circumstances and pursuant to s.381(1)(b)(i) and s.586(a) of the FW Act, I am satisfied it is appropriate to correct and amend the application to reflect that the respondent employer is VIP Petfoods Employment Pty Ltd.
RELEVANT LEGISLATIVE FRAMEWORK
[19] 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.”
[20] 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.”
CONSIDERATION
[21] For the dismissal to be a genuine redundancy, it is necessary, in accordance with the legislation, to determine whether:
- the Employer no longer required the job to be performed by the employee because of operational changes to the employee’s enterprise;
- the Employer has complied with any obligation in a modern award or enterprise agreement to consult about the redundancy; and
- it would have been reasonable, in all the circumstances, for the employee, whose job has been made redundant, to be redeployed within the Employer’s enterprise.
Did the Employer no longer require the person’s job to be performed because of changes in its operational requirements?
[22] In his application, Mr Hetherington states, on 10 January 2014, he was informed that “he was to be dismissed due to a restructure of the business”. Further, Mr Hetherington was given notice that this employment would end on 14 February 2014.
[23] In addition, Mr Hetherington states in his application that he was dismissed on 23 January 2014 which was effective from 24 January 2014.
[24] In response to the question, “why was the dismissal unfair”, Mr Hetherington’s representative asserts that the dismissal was unfair:
- the redundancy was not genuine as the applicant was not consulted regarding redeployment.”
“ because the applicant could have been deployed within the respondent’s business as over the 11 years of service he has learnt many features of the business; and
[25] In its response to the application, the Employer states that Mr Hetherington was notified of his dismissal for reasons of redundancy on 10 January 2014. However, on 23 January 2014, Mr Hetherington was advised by the Employer that it did not require him to work out his notice past 24 January 2014 and he would be paid in lieu.
[26] Briefly put, Mr Hetherington was certified unfit for work on 22 January 2014 and would not be returning to work until 28 January 2014. Mr Hetherington’s partner advised the Employer of the Applicant’s sick leave. The Employer came to the view that Mr Hetherington would not be required to work out his notice and paid him in lieu for the notice period to 14 February 2014. It is for this reason that Mr Hetherington claims he was dismissed with effect from 24 January 2014.
[27] Correspondence from the Employer dated 10 January 2014 to Mr Hetherington refers to a review of the business from October 2013 to improve efficiencies and reduce costs. As a result of the review, the role of the Western Australian Field Manager became redundant and the tasks of the position distributed among other employees. Further, several unsuccessful efforts had been made to find Mr Hetherington an alternative role within the Employer’s organisation to suit his skills set.
Status of 10 January 2014 letter of termination
[28] As I have already indicated, the Applicant concedes that on 13 January 2014 he was given correspondence dated 10 January 2014 terminating his employment for reasons of redundancy.
[29] The signatory to the redundancy letter of 10 January 2014 was Mr Browner. However, the correspondence was prepared by Ms Bates for Mr Browner. Ms Bates states that she used the VMEC Pty Ltd letterhead because she had used it previously, and was not familiar with the business corporate structure. Ms Bates admits she made a mistake and used the wrong corporate letterhead.
[30] With the Employer admitting a mistake had been made in relation to the letterhead, the Applicant now claims that the 10 January 2014 correspondence is a “nullity”. Mr Mullally, for the Applicant, submits “the purported termination, notice of which was given on 10 January by letter, was a nullity and there was no dismissal of this applicant until 23 January when he was told, ‘Don’t come back to work.’ Now, he was told, ‘It’s because we don’t need you to work out your notice,’ but my submission at law is that there was no subsisting dismissal at that time. It was a nullity from the beginning and so the only dismissal, and the dismissal upon which he basis his application, was on 23 January” 1 (my emphasis).
[31] Further, and importantly, “the dismissal occurred on 23 January and that could not possibly be to do with a genuine redundancy” 2 (my emphasis).
[32] The Applicant, having used the 10 January 2014 correspondence to substantiate, in part, the reason why he failed to correctly identify the Employer in his application, is now submitting that it should be considered non-existent and not having any probative value in these proceedings.
[33] However, the Applicant’s representative goes much further when he submits that the dismissal occurred on 23 January 2014 and that the dismissal could not possibly be to do with a genuine redundancy. If that is the case, it is somewhat at odds with Mr Hetherington’s statements in the application that the dismissal was unfair on the grounds of it not being a genuine redundancy, and further that the Applicant was not consulted regarding redundancy. If the Applicant considers that his dismissal has nothing to do with a genuine redundancy, no other grounds are put forward as to why it is unfair.
[34] I am satisfied that the correspondence of 10 January 2014 was to advise Mr Hetherington that his employment was to cease on the grounds that his position was being made redundant.
Did the Employer no longer require the person’s job to be performed because of changes in its operational requirements? (cont’d)
[35] The Employer asserts the following facts in short form:
- from late 2013 a review was conducted into the operations of the business;
- the review involved assessing various aspects of the business and steps which could be taken to improve efficiencies and reduce costs;
- the review highlighted a significant reduction in the “harvesting” of kangaroos;
- the reduction in the numbers of kangaroos harvested led to a withdrawal of supply to two major retailers; and
- the restructure to harvesting and kangaroo processing operations was necessary to reduce costs and improve efficiencies.
[36] The Applicant, in his response to the Employer’s facts above, disagrees but without adding any further comment or reasons why he disagrees.
[37] Mr Hetherington concedes that in September 2013, Mr Browner spoke to him about changes in the boning room. Mr Hetherington also acknowledges that Mr Browner had a discussion with him in October 2013.
[38] I am satisfied from the detailed evidence provided by Mr Browner, which was largely undisturbed in cross examination, that Mr Hetherington was aware that the Employer was conducting an operational review. In cross examination, I gained the impression that Mr Browner was hesitant and sensitive in his discussions with Mr Hetherington with regard to the role of Field Manager not continuing. I consider from the evidence that Mr Browner expected the reduced “numbers” of harvested kangaroos to speak for themselves.
[39] 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 Hetherington’s position have continued, except to say that they are performed by other employees as part of their role/position. What has simply happened is that the discrete job occupied by Mr Hetherington, and known to him and the Employer, no longer exists.
[40] Paragraph 1548 of the Explanatory Memorandum to the Fair Work Bill 2008 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.
[41] I am satisfied, on the material provided and the evidence of Mr Browner, that following a review of its operations, the Employer came to the view that it no longer wanted the job of Field Manager to continue because of changing business needs. These needs included reduced demand for its products and the requirement to respond to this situation by cutting costs or increasing efficiencies.
[42] As part of the Employer’s statement of facts, it states that the Applicant has commenced proceedings in the Western Australian Industrial Magistrates Courts’ jurisdiction where it has alleged that the Employer has failed to pay the correct redundancy payments. The grounds for the amount claimed clearly states “the respondent terminated the claimant due to redundancy...the respondent therefore is liable to pay the claimant a further $2250 for redundancy”. While not conclusive of whether it was a genuine redundancy, it can be reasonably deduced that Mr Hetherington has made statements in the Magistrates Courts’ jurisdiction which are true for the purposes of his claim that he was made redundant.
[43] For the reasons set out above, I find that the Employer no longer required the position of Field Manager to be performed because of changes in operational requirements consistent with paragraph 389(1)(a) of the FW Act.
Did the Employer comply with any obligation in a modern award or enterprise agreement applicable to Mr Hetherington to consult about the redundancy?
[44] The Applicant, in his application, does not state what enterprise agreement or modern award applied to his employment. The Applicant asserts, however, that the redundancy was not “genuine” because he was not consulted regarding “redeployment”.
[45] The Employer submits that there is no obligation to consult on the Applicant’s redundancy because no enterprise agreement or modern award applies. In the alternative, the Employer submits, if a modern award applies, Mr Browner engaged in consultation with the Applicant.
[46] The Applicant has not submitted that an enterprise agreement applies to his employment. Consequently, it is necessary to determine whether a modern award applies to Mr Hetherington’s employment.
[47] The Applicant asserts that the Meat Industry Award 2010 (Meat Award) applied to his employment. The Applicant submits that the Employer is in the business of the meat industry. The Employer does not dispute this assertion.
[48] However, the Applicant and the Employer do not agree that the Meat Award covers the Applicant. Further, the Employer contends that as the Meat Award does not cover Mr Hetherington, the consultation provisions of the Meat Award do not apply.
[49] Mr Hetherington concedes that he was employed as a Field Manager, however, “despite the name of Field Manager, I did not have any managerial duties or responsibilities or have any control or supervision of other employees”.
[50] Similar to many words in the English language, reverence to their meaning is dispensed with if it satisfies the persons involved. It would appear, over time, that the connection between being called a manager and controlling or supervising the activities of others, are not always linked. With maybe the exception of large public service or corporate organisations which have specified hierarchies, and having dedicated classifications, the title of manager is used almost without any close examination.
[51] In contrast to Mr Hetherington’s generalisation that he was not involved in any managerial duties or responsibility for staff, Mr Browner gave detailed evidence of Mr Hetherington’s duties and was cross examined on that evidence. Having considered Mr Browner’s evidence, I am satisfied that Mr Hetherington’s duties can be broadly defined as managerial in that his role was to coordinate the activities of kangaroo harvesters, handling and recording of data of those activities, compliance functions, and had delegated authority for certain expenditure and autonomous actions. Further, as a result of this role, Mr Hetherington was provided with a vehicle and mobile telephone.
[52] Mr Hetherington contends that he is a Meat Industry Level 5 employee but does not particularise which “stream” he is employed within. Further, I note that the minimum weekly wage for a Level 5 employee is $701.20 whereas Mr Hetherington’s weekly wage at the time of his dismissal was $1,136.40 and additional employment benefits. From the material provided as part of these proceedings, I am not satisfied that Mr Hetherington was a Meat Industry Level 5 employee.
[53] In the alternative, if Mr Hetherington is a Level 5 employee, the only provisions relating to consultation are contained in Clause 9, “consultation regarding major workplace change”. It is arguable whether the abolition of the Field Manager’s position can be regarded as major change for the purposes of the Meat Award. I accept it is major change for Mr Hetherington. If Clause 9 of the Meat Award is applicable, I find that the consultations occurred with Mr Hetherington before the definite decision was made to abolish the position of Field Manager and not after.
[54] For the reasons outlined above, I find that the Employer was not required to comply with any consultation provisions contained in the Meat Award as it was not applicable to Mr Hetherington.
Would it have been reasonable, in all the circumstances, for Mr Hetherington to be redeployed within the employer’s enterprise or related entities?
[55] The Applicant’s application asserts that he was not consulted regarding redeployment.
[56] Mr Hetherington’s witness statement states that he was “never offered other opportunities or reduced hours as alleged in his [Mr Browner’s] witness statement”.
[57] Further, Mr Hetherington submits that the Employer has produced no credible evidence that it was not reasonable to redeploy the Applicant within its business.
[58] Mr Browner’s witness statement is that he examined possible opportunities to redeploy the Applicant and there was simply no appropriate work available. Mr Browner also states that, on the two occasions, he raised with Mr Hetherington, the issue of reduced hours and other opportunities. Importantly, he states that “the response I received from the Applicant was that he was not interested in any other options and that he just wanted to continue working in his current role”.
[59] Despite having the benefit of this witness statement for some 14 days, Mr Hetherington does not dispute Mr Browner’s clear understanding of what Mr Hetherington’s position was when it came to redeployment. Mr Browner repeats this evidence again in a second witness statement. Mr Browner was not tested on this evidence. Accordingly, on the basis of what is before the Commission, I am satisfied that Mr Hetherington indicated to the Employer that he had no desire to be redeployed elsewhere and wished to remain in the current position, which unfortunately for him, was made redundant.
[60] Mr Browner’s evidence was unequivocal. Mr Browner considered redeployment of Mr Hetherington but there were no suitable positions available. That evidence was not challenged. Accordingly, I am satisfied that it would not have been reasonable, in all the circumstances, including a declining market, and Mr Hetherington’s preferences, for the Applicant to be redeployed.
[61] In summary, I am satisfied that the Employer considered redeployment of the Applicant within the enterprise, and provisions of s.389(2) of the FW Act are not applicable.
CONCLUSION
[62] For the reasons above, I find that Mr Hetherington’s dismissal was a genuine redundancy. Accordingly, the Commission has no jurisdiction to deal with the application and it must be dismissed. An order to this effect will be issued jointly with this Decision.
COMMISSIONER
Appearances:
P Mullally, Agent, for the Applicant
C Browner, for the Respondent.
Hearing details:
2014:
Perth,
5 June.
Final written submissions:
Respondent: 10 July 2014.
Applicant: 5 August 2014.
1 Transcript PN138
2 Transcript PN143
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