Mr Mathew Curtis v Djarragun College

[2011] FWA 6482

[2011] FWA 6482

FAIR WORK AUSTRALIA

DECISION

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

Mr Mathew Curtis
v
Djarragun College
(U2011/35)

DEPUTY PRESIDENT SWAN BRISBANE, 22 SEPTEMBER 2011

[1] This is an application made by Mr Mathew Curtis [the applicant] pursuant to s.394 of the Fair Work Act 2009 [the Act] for his alleged unfair dismissal from Djarragun College [the college].

[2] The applicant was represented by the Independent Education Union of Australia and the college by Jones Ross.

[3] This is a somewhat unusual application as neither party seek to have a hearing of the matter. Both are content to have the matter heard on the papers.

[4] The college did not seek to produce evidence in relation to the matter nor did it seek to cross examine the applicant.

[5] The college says, under the heading of “Concessions” that:

“Mr Curtis commenced employment with the Respondent in June 2009 as the Assistant Principal, Head of VET and Senior School;

Mr Curtis’s position was terminated by letter dated 11 November 2010 on the basis that his position was made redundant;

The Respondent is unable to present evidence demonstrating that Mr Curtis was consulted regarding the redundancy of his position;

The Respondent is unable to present evidence demonstrating that Mr Curtis was given an opportunity to be represented during the termination process:”

[Submissions of the College – “Concessions”]

[6] The only substantive submission the college wish to make goes to the question of a remedy which might be ordered by the Tribunal if the application was successful. As well, the college holds to the view that the applicant’s position was terminated due to ‘genuine redundancy’.

Applicant’s evidence

[7] The applicant commenced employment with the college in June 2009 and continued until December 21, 2010. The applicant had held the position of Assistant Principal, Head of VET and Senior School.

[8] Notwithstanding the title attributed towards the position held, the applicant says that his duties changed over time as there was no specific job description for his position. Leading up to his termination of employment, the applicant continued to perform the core duties of his position.

[9] The college has held to its claim that redundancy of the applicant’s position led to the termination of his employment.

[10] There have been no allegations by the college concerning the applicant’s work performance.

[11] What is now to be considered is whether the applicant’s position was genuinely redundant. s. 385(d) of the Act provides that a dismissal is not unfair if it is a case of genuine redundancy.

[12] The meaning of ‘genuine redundancy’ is addressed in s.389 of the 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; of

(b) the enterprise of an associated entity of the employer.”

[13] “385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) ....

(b)

(c)

(d) the dismissal was not a case of genuine redundancy.”

[14] The college contends that it had reorganised its operations. It says that it split Mr Curtis’s job into two positions – ie one of Head of Senior School and one as Head of VET.

[15] The college claims that the actual role originally held by the applicant was abolished and has not been replaced since it was occupied by the applicant.

[16] The applicant says he was offered a teaching position at the Wangetti Campus of the college. There was no more substantive information given by either the applicant or the college around this point, and I can take that matter no further.

[17] A statement made by the Revd Dr David Cole (Chaplain at Djarragun) highlights that there had been difficulty at the college with regard to enrolment numbers. He says that the applicant advised him that his position had been made redundant because of the decline in student numbers during 2010. Revd Dr Cole believes that the applicant’s position was replaced by two new staff members in 2011.

[18] Mr Richard Irwin (Secondary School Teacher) had taught at the college during 2010. He recalls that late in 2010 he was introduced, by the Principal of the college, to an employee whose position at the college was Head of Senior School.

[19] Mr Shayne Pitout (Facilities Manager) says he was aware that the applicant was leaving the school because of a decline in student numbers in 2010. Mr Pitout only became aware of problems the school was facing with student numbers because of reports in the media about the viability of the school, amongst other issues.

[20] Mr Pitout was advised in early 2011 that there was a new Head of VET and he believed that this employee replaced the applicant in that part of his role. Further, around the same time, Mr Pitout was introduced to the new Head of Senior School. He also believed that the person replaced the applicant’s position as Head of Senior School.

[21] Ms Louise Redmond (Chief Operating Officer) was employed at the college from February 2010 until December 2010. During that time she was aware that the applicant’s role was that of Assistant Principal who was also Head of Senior School and Head of VET.

[22] Ms Redmond became aware in late 2010 that the applicant’s employment had been terminated because of the decline in student numbers during 2010. She believed that the college was stating that there were now insufficient funds to further employ the applicant.

[23] Ms Redmond became aware that, when viewing the student numbers at the college at that time as reported in the College 2010 Annual Report, the number was 215 students. It was only when reading media articles about the college that she discovered that there had been 250 ‘phantom’ enrolments at the college over a three year period.

[24] Ms Redmond believed that the applicant’s position had been replaced by two new employees – one as Head of Senior School and one as Head of VET.

[25] Ms Emma Casey (Senior Teacher/Head of English/Drama Department) gave evidence similar to that given by the abovementioned witnesses. In 2011, Ms Casey’s employment contract with the college was renewed. She would now be reporting to the new Head of Senior School and the new Head of VET. Ms Casey believes that the applicant’s position was replaced by two new staff members who took over his formerly held duties as Head of VET and Senior School.

Consideration of whether there was a ‘genuine redundancy’

[26] The applicant had sought disclosure from the college of any documentation regarding its reorganisation or restructuring plans relative to the applicant’s position. There had been no response from the college to this request.

[27] The applicant says that each of the two new positions Head of Senior School and Head of VET, encompassed a significant part of the functions, duties and responsibilities which previously comprised the job held by the applicant.

[28] At the time when the applicant received his notice of termination of employment, there remained another position at the college which he could have reasonably filled – ie that of Head of VET. That position had remained unfilled at that time.

[29] The applicant asserts that it was unreasonable of the college to make the applicant’s position redundant, when at the same time it was advertising the position of Head of VET.

[30] As well, the position of Head of Senior Secondary was filled by the college on 30 November. This was a position which could also have been filled by the applicant.

[31] The college had advised that the two new positions it had created (ie Head of Senor School and Head of VET) were ‘lower level positions’ to the position held by the applicant as Assistant Principal. However, the salary attaching to the position of Head of Senior Secondary was advertised at an annual salary of $94,746 as compared the applicant’s annual salary of $90,000.

[32] In determining whether the termination of employment occurred as a result of a ‘genuine redundancy’, I can only rely upon the information provided in the papers.

[33] The college has raised little by way of corroborative comments to support its claim that what occurred was a ‘genuine redundancy’. The applicant, however, has provided uncontested affidavits to the contrary.

[34] I accept that the applicant’s termination of employment was not related to genuine redundancy of the position. The applicant’s former position was broken into two positions incorporating primarily the roles previously held by the applicant.

[35] One of the newly created positions was paid at a higher annual salary than what was paid to the applicant in his previously held position and it would be difficult to accept a submission that the position was at a lower level.

[36] The weight of the material before the Tribunal supports the applicant’s claim that his primary job continued at the college, albeit split into two new positions.

[37] Given the nature of this matter, it is not for me to consider whether the college’s student numbers were inappropriately inflated or otherwise. As I understand the submissions, that matter is being investigated by appropriate bodies.

[38] In all, the termination of the applicant’s employment did not relate to a ‘genuine redundancy’ but was a harsh and unfair dismissal of the applicant at the initiative of the employer. Given the “concessions” made by the college in paragraph 5 of this decision there have been no further submissions around this point save for dealing with the question of remedy.

[39] This leaves only the question of Remedy to be considered.

Remedy

[40] Initially the applicant had sought reinstatement to his formerly held position without loss of wages between the date of termination and the date of reinstatement.

[41] Since the date of termination of employment, I have been advised that the Principal and Deputy Principal of the college have ceased their employment with the college.

[42] Theoretically, it could have been submitted that the applicant may have been reinstated to his formerly held position as any difficulty between the applicant and the Principal would have been removed.

[43] In the intervening period, however, the college has been purchased by another entity.

[44] The college says that reinstatement would be impracticable as it is “currently enduring a very difficult period and has incurred debts to both the Federal and State Governments of more than four million dollars”. [Submissions of the college]

[45] The college also says that since the applicant’s termination of employment, it has closed one of its campuses and made some 30 employees redundant.

[46] In my view, it would be impracticable to seek to reinstate the applicant to his formerly held position. There is simply insufficient information available to me to be able to make such an Order.

[47] Having considered that question, it would seem that the only available remedy would be that of compensation.

Preamble to consideration for the payment of Compensation

[48] This matter has been considered on the basis of the applicant’s claim and that of supporting witnesses. The college has only supplied to the Tribunal a short Summary of Submissions with no attached supporting material.

Compensation

392 Remedy – Compensation

Compensation

(1) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWA considered relevant.

Re (a)

[49] The college says that it is unable to make any submissions around this point.

[50] Under this criterion, the applicant says that is has no knowledge of the financial position of the new entity. The applicant says that “we would make the general observation that, in light of the reported debts of the previous operator of the college, the quantum of any compensation order would not materially alter the College’s situation”. [Applicant’s Submissions – point 29(a)]

[51] In the absence of the college making any submissions at all around this particular point, I can only accept the applicant’s submissions that any order of compensation would not materially alter the College’s situation.

Re (b)

[52] The applicant was employed by the college for approximately 18 months.

[53] The college says that this period of employment should limit the amount of compensation payable to the applicant and the applicant states that, when considering the general stability of the education industry, the period under consideration should not provide any grounds to reduce an award of compensation.

[54] I have accepted generally the applicant’s submissions. The statements provided in support of the applicant’s case all show that the applicant had a strong commitment to his work and under normal circumstances it would be fair to say that he could have anticipated lengthy service with the college. The circumstances at this college unfortunately could not be classed as normal circumstances.

Re (c)

[55] The applicant believed that he could have worked for the college until his retirement in 10 years time. His work had been well regarded by his peers. Had his employment not been terminated, the applicant says that he could have earned, over those 10 years, at least $900,000 based on his rate of pay at the time of the termination.

[56] The college differs on this point. It says that the applicant’s employment would only have lasted until May 2011. It says that the maximum payment the applicant would have received was four months pay, given that he was paid up until January 2011.

[57] The college says that the applicant would only have been able to work until May 2011. The college did not elaborate upon the significance of this date. The applicant has not challenged this date and that maybe because of his claim that he anticipated working for the next ten years at the college.

[58] In my view, a realistic approach must be undertaken with regard to this criterion. It is evident that the college’s business was in a parlous position. This factor will be taken into consideration, upon making my determination.

Re (d)

[59] The applicant says that he has applied for all reasonably comparable jobs in the Cairns area. He has also applied for positions at a lower level in order to mitigate his losses.

[60] The college’s view is that the applicant has not made a real effort to mitigate his losses. The applicant has supplied only scant documentation to support his assertions about his job searches.

[61] Two of the jobs mentioned in the applicant’s Attachment “O” to his application could be seen as realistic attempts to find a position. One position was for a Learning Support Teacher in Cairns and the other was for a Professional Development Training Manager at the James Cook University.

[62] Other applications made by the applicant include one to the BBC, Sky Sports and the Australian Broadcasting Corporation. The applicant says that in all he applied for eleven positions but other than for the rejection letters contained in Attachment ‘O’, I am unaware of exactly what positions the applicant applied for.

[63] While I have not been provided with descriptions of the jobs applied for by the applicant, I agree with the college that the more realistic job applications relate to the two aforementioned applications in Cairns and Townsville.

[64] From the material before me, I am not convinced that the applicant has sought to appropriately mitigate his losses.

Re (e)

[65] The applicant says that as of 26 August 2011, he earned approximately $4,788.

Re (f)

[66] Based upon his experience in the job market, the applicant does not believe that there would be any earnings of any significance in the period between the date of an Order and the payment of compensation. The college makes no submissions around this point.

Re (g)

[67] There are no matters raised under this criterion.

[68] The applicant has asked for compensation of $45,000 and the college believes that the applicant should receive 12 weeks pay, equalling an amount of $20,760.

[69] A particular factor mitigating against the applicant being awarded the amount claimed relates to the applicant’s failure to adequately attempt to mitigate his losses.

[70] I have also accepted the college’s submissions that, given the state of the college’s business around and after the time of the applicant’s termination of employment, it became obvious that long term employment with the college may not be realistic.

[71] It appears that the applicant was paid a redundancy payment as he was paid up until January 2011. I have taken this into account as well as the amount the applicant says he has earned since the termination of his employment.

[72] I have had regard to the remuneration that the applicant would have received or have been likely to receive if he had not been dismissed.

[73] I have had regard to any income the applicant is reasonably likely to earn during the period between the making of this Order and actual compensation.

[74] There has been no question of misconduct on the applicant’s part.

[75] The amount that I order for compensation does not include any component by way of compensation for the shock, distress or humiliation or any other analogous hurt caused to the applicant by the manner of his dismissal.

[76] I have concluded that the applicant’s gross weekly wage was $1730.

[77] Having taken into account all of these considerations, I determine to award to the applicant an amount equal to 15 weeks pay. I view this amount as an appropriate remedy in all of the circumstances of this application.

[78] I make the order that within fourteen days Djarragun College is to pay Mr Mathew Curtis a gross sum equalling 15 weeks pay, ie $25 950, to be taxed appropriately.

DEPUTY PRESIDENT

Appearances:

Mr J Spriggs for the Applicant

Mr C Pollard for the Respondent

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