Mr Roger Fisher v Association for the Blind W.A

[2014] FWC 5604

[2014] FWC 5604

FAIR WORK COMMISSION

DECISION

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

Mr Roger Fisher
v
Association for The Blind W.A.
(U2014/7133)

COMMISSIONER CLOGHAN PERTH, 27 AUGUST 2014

Unfair dismissal.

[1] On 9 May 2014, Mr Roger Fisher (Mr Fisher or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, the Association for the Blind of Western Australia (Inc) (Employer or Association for the Blind).

[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 is not protected by the unfair dismissal provisions of the FW Act, because Mr Fisher’s dismissal was a case of genuine redundancy.

[4] To assist in the determination of the Employer’s jurisdictional objection, I issued directions on 17 June 2014.

[5] Having received the submissions, this is my decision and reasons for decision as to whether the Applicant’s dismissal was a case of genuine redundancy, and therefore, not protected by the unfair dismissal provisions of the FW Act as set out in s.385.

RELEVANT STATUTORY FRAMEWORK

[6] 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.”

[7] 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.”

RELEVANT BACKGROUND

[8] The Applicant was employed as a Casual Manual Arts Officer from 25 October to 2 November 2007.

[9] On 15 November 2007, the Applicant commenced employment on a part-time basis (15 hours per week) as a Manual Arts Officer-Confident Living Programme (CLP).

[10] The Applicant’s employment, at the time he was dismissed, was regulated, in part, by the Association for the Blind of WA Inc Enterprise Agreement 2011-2014 (Agreement).

[11] On 11 April 2014, the Employer’s Board made the decision to make five (5) of the 10 positions within the CLPredundant. All five (5) positions made redundant were Activity Officers.

[12] On 16 April 2014, Mr Fisher received correspondence entitled “Notification of Redundancy”. The correspondence advised Mr Fisher that the cessation of his employment would be 30 April 2014.

[13] The reason for Mr Fisher’s position being made redundant followed “a review of our operational requirements...restructure of our services so that we are better placed for broader funding reforms. To position our organisation for the future, we must make significant changes to the composition of our workforce”.

[14] The correspondence of 16 April 2014 continues that, in the context of client feedback, the CLP service had been reviewed and there was a need to provide more flexible delivery arrangements. Further, there was a need to meet client demands in a timely and adaptable manner. Finally, the current workplace arrangements do not meet those client demands.

[15] The correspondence concludes by informing the Applicant that, although the part-time position of 15 hours per week will become redundant, he could continue his employment on a casual basis commencing 1 May 2014.

RELEVANT CHRONOLOGY OF EVENTS

[16] In July/August 2013, the Employer established a Project Working Group (PWG) to review current services and the development of options for its future operations.

[17] The Final Report of the PWG was provided to the Employer’s Board for consideration and endorsement on 11 April 2013.

[18] The Employer’s Board decided to make five (5) Activity Officer positions redundant on 11 April 2013.

[19] On 16 April 2013, the Ms Barnes, Executive Manager Operations, met with all 10 CLP employees. Ms Barnes informed the employees of changes to the CLP services and its integration with Adult Services.

[20] Those employees whose positions were to be made redundant, received correspondence to that effect at the meeting on 16 April 2014.

[21] Four (4) of the five (5) employees affected met with Ms Linquist, Manager, Human Resources on 16 April 2014. The Applicant was one of the four (4) employees who met with Ms Linquist.

[22] On 16 April 2014, the Employer advised the Health Services Union of Western Australia (HSU) of the redundant positions.

[23] On 17 April 2014, the Applicant sought and received an offer of employment as a Casual Manual Arts Officer.

[24] On 21 April 2014, the Applicant wrote to Ms Barnes highlighting four (4) issues associated with the redundancy of the position he occupied. Mr Fisher sought a meeting with Ms Barnes.

[25] As Ms Barnes was overseas until 28 April 2014 and Mr Fisher’s first working day after 28 April 2014 was 30 April 2014, the meeting took place on 30 April 2014. This day was also Mr Fisher’s last day of employment in the position of part-time Manual Arts Officer, CLP.

[26] At the meeting on 30 April 2014, the Applicant’s support person was present. The meeting discussed the content of Mr Fisher’s correspondence of 21 April 2014 which will be discussed later in this Decision.

CONSIDERATION

[27] 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 anyone 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 by anyone because of changes in its operational requirements?

[28] Section 385 of the FW Act provides that an employee has been unfairly dismissed if the dismissal was not a case of genuine redundancy. The converse of s.385 is that an employee has been fairly dismissed if the dismissal was a genuine redundancy.

[29] The presumption in s.385 of the FW Act is that a redundancy is a fair dismissal unless it can be established that the redundancy was not genuine.

[30] When Mr Fisher, or any applicant, makes application alleging that he or she was unfairly dismissed, in circumstances of redundancy, the person is essentially asserting that the redundancy was not genuine. In the ordinary course of dismissals, having made the assertion of being unfairly dismissed, the onus or burden of proof lies with the applicant to demonstrate that he or she has been unfairly dismissed. However, in unfair dismissal applications which relate to redundancies, the employer has the onus or burden of proof to establish that the redundancy was genuine.

[31] In this application, the Association for the Blind has submitted, and provided affidavits that, as a consequence of funding reforms due to the implementation of the National Disability Insurance Scheme (NDIS) and the Living Longer Living Better-Aged Care Reforms, it has had to restructure its business to meet client demands and manage its costs.

[32] With increasing frequency, applicants contesting whether a redundancy was genuine, reply to the employer’s submission with words to the effect of, “the respondent has not provided any evidence to the applicant”. In this application, Mr Fisher asserts that, notwithstanding the Employer’s submission and affidavits, he has not been given any evidence:

• that implementation of the NDIS required the Employer to restructure its business;



• what clients required;



• the restructure meets the change in client demand; and



• how the restructure will achieve cost savings.

[33] Put simply, Mr Fisher asserts that although the Association for the Blind established a PWG which, after 8-9 months, provided a report to the Board, and five (5) positions in the CLP area were abolished, those actions have no validity, because the grounds upon they are based have not been satisfactorily demonstrated to him. Accordingly, the redundancy is not genuine. I am not persuaded by such a proposition.

[34] In my view, it is not the Commission’s role to enquire into and come to a conclusion as to whether the restructure of the organisation by the Board of the Association for the Blind, is correct or not. It is a matter for the Employer to determine how it organises its business.

[35] However, that is not to say that employees cannot challenge the authenticity of positions being made redundancy for operational requirements.

[36] It is the Commission’s role to determine, on the balance of probabilities, whether the Employer no longer required the job, in this case, a part-time Manual Arts Officer, to be performed by anyone for operational reasons. It is not the Commission’s role to determine whether the Applicant has been sufficiently persuaded of the operational changes which led to the position being made redundant.

[37] What evidence do I have in relation whether the position was abolished for operational reasons? Firstly, I have the letter of termination provided to Mr Fisher. Secondly, I have the correspondence to the HSU Thirdly, I have the affidavits of Ms Barnes and Ms Linquist. The thrust of the documentation is the need for the Employer to change the delivery of its services to meet client demand, funding reforms and address escalating costs. This direct evidence was unchallenged by the Applicant except to make the truth of these assertions conditional on him being convinced.

[38] Mr Fisher submits that “he does not believe that a significant change in operations has taken place (nor will take place in the future)”. Mr Fisher does not indicate whether he is referring to the services provided by the Employer in its totality or the tasks/duties of the Manual Arts Officer. I am not able to make an assessment of this submission. However, the Board of the Association of the Blind has made changes to prepare and adapt to financial and service delivery circumstances it finds itself in.

[39] The real issue, it appears, for Mr Fisher is that his “job” has not been abolished but has changed from being permanent part-time of 15 hours per week on specified days, to a casual position in which hours and days of the week are unspecified.

[40] Mr Fisher states:

“The Respondent contends that once attention is given to the definition of casual in the Respondent’s agreement, it is clearly an entirely new “job”. This analysis is specious and fundamentally flawed. An attempt to change an employee’s working conditions (to their detriment) does not “create” a new job. A new job is created when the day to day fundamental job requirements are altered. The Respondent made no attempt to explain how the Applicant’s day to day responsibilities would change, other than to say he was required to sign a casual contract.”

[41] The plain and ordinary meaning of “job” is a paid position of employment. Mr Fisher’s position/job was 15 hours per week on specified days. For operational reasons, the Employer no longer wants that position to be filled by anyone. In abolishing the position, the Employer could have increased the hours, reduced the hours, allocated the activities to other employees or, as in this case, required the duties/tasks of the position to be carried out on a required needs basis - casual.

[42] Mr Fisher appears to conclude that the inherent duties/tasks of the job are the only factors to be considered when a new job is established. The fact is that a specified job consists of more than just duties/tasks.

[43] The Association for the Blind of Western Australia Inc Enterprise Agreement 2011-2014 (Agreement) provides for employees to be employed in jobs which are full-time (37.5 hours per week), part time (less than 37.5 hours per week) and casual (persons not engaged on a regular basis). Accordingly, jobs can require employees to be employed on a full-time, part-time or casual basis.

[44] Shortly put, a “job” has more characteristics than its duties/tasks. Accordingly, I find that for operational reasons, the Association for the Blind no longer wanted the part-time position occupied by Mr Fisher to be performed. Secondly, the fact that the Employer wishes to have the activities/tasks of the abolished position carried out on a casual basis in the future, does not annul the Employer’s submission that there are good and proper operational reasons to abolish the position.

[45] 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 Fisher’s position will continue, however, they will be activated on a casual basis. What has simply happened is that the discrete job occupied by Mr Fisher, and known to him and the Employer, no longer exists.

[46] 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.

[47] In my view, the above examples are analogous to where an employer abolishes a part-time position and has those tasks/duties carried out on a casual basis.

[48] For the reasons set out above, I find that the Employer no longer wanted the part-time Manual Arts Officer - CLP position to be performed by anyone 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 Fisher to consult about the redundancy?

[49] Clause 25 of the Agreement is entitled “Introduction to Change and Redundancy”.

[50] There is no dispute that after the Employer’s Board had made the definite decision to abolish the position held by Mr Fisher; he was notified on 16 April 2014 in accordance with subclause 25.1 of the Agreement.

[51] On 16 April 2014, the HSU was notified of the organisational restructure in accordance with subclause 25.1 of the Agreement. The correspondence to the HSU advised that five (5) Activity Officer positions in the CLP have been made redundant and that all staff have been offered casual contracts.

[52] It is notable, in subclause 25.2 of the Agreement, that “significant effects” includes and envisages changes in “job tenure”.

[53] In accordance with subclause 25.4 of the Agreement, I find that the discussions with affected employees occurred as early as possible after the Board had made its decision to abolish the five (5) positions in the CLP.

[54] It is a requirement of subclause 25.3 of the Agreement that the Employer consider measures to mitigate the adverse effects of the decision to make a position redundant. I find that Mr Fisher requested and the Employer offered the Applicant a casual contract of employment on 17 April 2014. On 30 April 2014, Mr Fisher advised the CLP Coordinator that he would not be accepting the offer of casual employment.

[55] The Applicant misreads Clause 25 of the Agreement when he infers that consultation should have occurred before he was notified of the decision to make his position redundant. The Agreement does not prescribe that consultation, with potentially affected employees, should occur prior to a definite decision being made to make positions redundant. On the contrary, the Agreement specifies at subclauses 25.1 and 25.4 that notification and consultation take place after a definite decision has been made to make a position(s) redundant.

[56] The evidence I have is that on 16 April 2014 the Employer discussed with the affected employees the effects of the Board’s decision on 16 April 2014. Mr Fisher asserts that this was not “consultation” but notification. Mr Fisher is correct but before there can be consultation, the affected employees must be “notified” that the positions they occupy have been made redundant; this is what occurred.

[57] The unchallenged affidavits of Ms Barnes and Ms Linquist is that at the group meeting with CLP staff on 16 April 2014, the affected employees were encouraged to meet either of them to discuss any concerns, issues or seek further clarification on the redundancies. The evidence is that Mr Fisher made some comments at the meeting and asked specific questions concerning long service leave (LSL). Ms Linquist gives evidence that Mr Fisher came to see her after the group meeting but only for the purpose of raising the issue of LSL.

[58] On 21 April 2014, Mr Fisher provided Ms Linquist a copy of correspondence addressed to Ms Barnes. The correspondence refers to his position being made redundant and raises four (4) “concerns”. One concern is that he was not given the “opportunity at this meeting [16 April 2014] to offer any proposal in regard to an alternative to redundancy”.

[59] While it is understandable for Mr Fisher wanting to challenge the Board’s decision to make the position he occupies redundant, the consultation required in subclause 25.3 of the Agreement, is in relation to measures to “avert or mitigate the adverse effect” of making the position redundant. It is not consultation for the purposes of attempting to overturn the decision to make the position redundant.

[60] In this application, the Association for the Blind had already turned its mind to measures to avert or mitigate the consequences of Mr Fisher’s position being made redundant. It did so by making available to him a casual contract of employment. When Mr Fisher sought the casual contract of employment, it was provided to him promptly and written in such a way as confirmation of his appointment. Subsequently, Mr Fisher decided not to pursue the casual contract of employment.

[61] To complete the episode of consultation, Ms Barnes met with Mr Fisher to discuss his correspondence on 30 April 2014.

[62] I find that the Association for the Blind complied with its obligations concerning consultation in the Agreement.

Would it have been reasonable, in all the circumstances, for Mr Fisher to be redeployed within the employer’s enterprise or related entities?

[63] The Employer submits that it had no positions to offer the affected employees at the date of the five (5) positions becoming redundant. Ms Barnes’ affidavit declares, “as the Executive Manager Operations, I authorise and approve all advertising and recruitment. No other vacancies existed across client service areas of the organisation at that time”.

[64] Mr Fisher, in reply, submits “Disputed: The Applicant maintains that a substantially similar position did exist at the time of his redundancy as evidence by the Respondent’s own statements that there would be ongoing requirements in conducting client classes within the workshop and their offer of ongoing employment to the Applicant”.

[65] The third “limb” of whether a person’s dismissal is genuine is whether “it would have been reasonable in all the circumstances” for Mr Fisher to be redeployed within the Association for the Blind. Mr Fisher points out, quite rightly, that the Employer acknowledged that there was an ongoing requirement and he was offered a casual contract of employment as a Manual Arts Officer. There is no dispute that he had the skills to carry out the casual position, the place of employment was the same and the conditions would remain under the Agreement. However, he said no to the offer of casual employment.

[66] Having regard to the overall circumstances that Mr Fisher declined redeployment into a position that was made available to him, and the overall operational circumstances faced by the Employer, as set out in Ms Barnes affidavit, I am satisfied that the Association for the Blind considered redeployment within the enterprise but there were no positions available with the exception of the casual Manual Arts Officer - a position which he rejected.

[67] In summary, I find that the Employer considered redeployment of Mr Fisher within the enterprise and the provisions of s.389(2) of the FW Act are not applicable.

CONCLUSION

[68] For the reasons above, I find that Mr Fisher’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

Final written submissions:

Applicant: 23 July 2014.

Respondent: 3 July and 7 August 2014.

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