Mr Sean McCormick v Mt Pleasant Stud Farm Pty Limited

[2015] FWC 6360

[2015] FWC 6360 [Note: An appeal pursuant to s.604 (C2015/6828) was lodged against this decision - refer to Full Bench decision dated 11 November 2015 [[2015] FWCFB 7676] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Sean McCormick
v
Mt Pleasant Stud Farm Pty Limited
(U2015/963)

DEPUTY PRESIDENT SAMS SYDNEY, 14 SEPTEMBER 2015

Termination of employment – Horse Trainer – unfair dismissal – jurisdictional objections – whether dismissal a case of ‘genuine redundancy’ – Small Business Fair Dismissal Code – notification and consultation under the Award – operational requirements – redeployment options – compliance with Code not relevant – employer no longer required the job of Trainer to be performed by anyone – no consultation as to the applicant’s redundancy – dismissal not a case of ‘genuine redundancy’ – further proceedings on merit and remedy.

BACKGROUND

[1] This decision will determine two jurisdictional objections pressed by Mt Pleasant Stud Farm Pty Limited (the ‘respondent’) in respect to an application for an unfair dismissal remedy lodged by Mr Sean McCormick (the ‘applicant’) on 6 March 2015, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). The applicant commenced employment in May 2012 as a Horse Trainer based at the respondent’s farm at Thirlmere, New South Wales (the ‘farm’ or ‘Mt Pleasant’). From January 2013, the applicant and his family lived in a house next to the farm (the ‘Thirlmere house’), owned by Mr Roderic Hamilton, the owner and sole director of the respondent. There is no dispute that the employment of the applicant was covered by the Horse and Greyhound Training Award 2010 [MA000008] (the ‘Award’).

[2] On 13 February 2015, during the course of a conversation with Mr Hamilton, the applicant was dismissed from his employment. Mr Hamilton’s evidence was that the conversation was as follows:

Mr Hamilton:	I need to speak to you.
Applicant:	What’s wrong?
Mr Hamilton:	Sean, this is difficult for me to say but I have to finish you up.
Applicant:	What do you mean?
Mr Hamilton:	I’ll have to ask you to finish.
Applicant:	You’ll have to tell Margo that.
Mr Hamilton:	Sean, I employed you, not your wife.
Applicant:	I didn’t think you could sack someone if they were on compo.
Mr Hamilton:	I’m not sacking you, your position has been made redundant.

[3] Later that day, the applicant was handed a letter which said:

‘Dear Sean

Termination of your employment by reason of redundancy

The purpose of this letter is to confirm the outcome of a recent review by Mt Pleasant Stud Farm Pty Ltd (the employer) of its operational requirements, and what this means for you.

As a result of a change in the structure of the business, the position of Trainer is no longer needed. Regrettably this means your employment will terminate. This decision is not a reflection on your performance.

Your employment will end immediately. Based on your length of service, your notice period is 3 weeks. In lieu of receiving that notice, you will be paid the sum of $3846.

You will also be paid your accrued entitlements and any outstanding pay, including superannuation, up to and including your last day of employment.

We thank you for your valuable contribution during your employment with us.’

[4] Shortly stated, the respondent objects to the unfair dismissal application on the basis that the dismissal of the applicant was a case of ‘genuine redundancy’ and, that the respondent, is a Small Business Employer, as defined and the applicant’s dismissal was consistent with the Small Business Fair Dismissal Code (the ‘Code’). On either basis, it is said that the dismissal cannot be an unfair dismissal within the meaning of s 385 of the Act.

[5] On the other hand, the applicant denies that his dismissal was a case of ‘genuine redundancy’ or that it was consistent with the Code. He claims that his dismissal arose as a result of him suffering a workplace injury on 29 December 2014.

[6] Further, while not strictly relevant to the two jurisdictional objections, the applicant disputes that a letter of appointment (see para [18] below) said to cover his employment at Mt Pleasant, correctly records his terms and conditions of employment. He claims that there was a verbal agreement between himself and Mr Hamilton in which Mr Hamilton agreed he would provide accommodation for the applicant and his family, as well as pay for the provision of electricity to the house and a phone and also provide the applicant with a fully maintained vehicle. This alleged agreement is disputed by Mr Hamilton. He relies exclusively on the letter of appointment as setting out the terms and conditions of the applicant’s employment.

[7] In addition, I note that there were unrelated proceedings in the New South Wales Civil and Administrative Tribunal, in respect to the continued occupation of the house by the applicant and his family, post the applicant’s dismissal.

Statutory and Award considerations

[8] Under the Commission’s unfair dismissal jurisdiction, s 385 of the Act defines an unfair dismissal as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC 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.

[9] Section 396 of the Act sets out a number of matters that the Commission must determine prior to considering the merits of an application for a remedy for unfair dismissal. As will be evident, ss 396(c) and (d) sit in harmony with ss 385(c) and (d) of the Act. Section 396 is as expressed as follows:

396 Initial matters to be considered before merits

The FWC 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.

[10] The applicant was dismissed by the respondent on 13 February 2015 (s 385(a)). Consideration of whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’ (s 385(b) may become agitated if either one of sub-sections (c) or (d) of s 385 are established by this decision. The following findings do not appear to be in dispute between the parties:

(a) The applicant was a national system employee and the respondent was a national system employer, as defined (ss 13, 14);
(b) The applicant’s unfair dismissal application was lodged within the 21 day statutory time period set out in s 394(2)(a); and
(c) The applicant was a person protected from unfair dismissal (s 382) in that:

(i) even if it is found that the respondent is a Small Business Employer, as defined, the applicant had completed the minimum employment period of 12 months (s 383);
(ii) the applicant was covered by the Award (s 382(b)(i)).

[11] As I will discuss later, the fundamental issue in this case is whether the applicant’s dismissal was consistent with the definition of a ‘genuine redundancy’, as set out in s 389 of the Act. The definition is set out 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.

[12] Pursuant to s 389(1)(b), the relevant provisions of the Award dealing with consultation are found at cl 8 and are set out as follows:

8. Consultation

8.1 Consultation regarding major workplace change

(a) Employer to notify

(i) 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.

(ii) 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.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), 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.

(ii) 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(a).

(iii) 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.

[13] The matter was listed for arbitration in Sydney on 16 and 17 July 2015. The applicant appeared for himself, assisted by his wife, Mrs Margo McCormick. Mr G Lloyd, Solicitor, appeared, with permission granted pursuant to s 596 of the Act, for the respondent. As the matter had not been subject to the usual telephone conciliation by a FWC conciliator, I decided at the commencement of the proceeding, to conduct a brief private conference with the parties. However, the matter was not amenable to settlement and the arbitration proceeded.

THE EVIDENCE

[14] The following persons gave written and oral evidence in the proceeding:

• The applicant;



• Mrs Margo McCormick, the applicant’s wife;



• Ms Melina Lane, a former Farm Attendant of the respondent;



• Ms Melanie Bolwell, formerly employed by the respondent as a Strapper/Apprentice Jockey; and



• Mr Hamilton.

[15] At this point, I note that the applicant also sought to rely on statutory declarations of Ms Lynette Newman, Mr Wayne Hudd and Mr Christopher Rose. However, as these persons were not available to have their evidence tested by way of cross examination, the applicant was refused leave to tender their statements.

For the applicant

The applicant

[16] The applicant provided a number of statutory declarations and other written materials, including a line by line rebuttal of the respondent’s materials. The applicant’s materials demonstrated the usual difficulties encountered by self-represented litigants in relation to repetition, hearsay and the common misunderstanding of what constitutes the distinction between evidence and submissions. I make no criticism of the applicant for the preparation of his case. I shall do my best to summarise the applicant’s evidence below.

[17] Prior to his employment at Mt Pleasant, the applicant had been working for five years on a property at Oakdale, New South Wales, known as Heritage Park. The applicant deposed that in 2012, after Mr Hamilton had asked him what ‘package’ he was on at Heritage Park, he had told him that he received a weekly wage, house, electricity, vehicle and phone. When Mr Hamilton had answered, ‘I suppose I have to match that’, they verbally agreed to the following package:

• A salary of $66,664 (equating to $1,000 per week ‘in hand’ (net));



• Superannuation of $5,999;



• The provision of a house for his family to occupy;



• The payment of all electricity bills for that house; and



• A motor vehicle for business and private use.

[18] While the applicant claimed that his letter of appointment (Annexure A, annexed to this decision) was not a true reflection of their verbal arrangement, Mr Hamilton had reiterated the above offer to his wife (Margo) in a meeting conducted at Mr Hamilton’s request on 10 March 2012. At this meeting, Mr Hamilton had provided his wife with a list of his properties and an internal plan of one of these properties for their consideration. He had asked her to ‘drive by’ properties and indicate whether or not they appeared to be suitable. Mr Hamilton later advised his wife of his intention to purchase a property adjacent to the farm and his family subsequently moved in.

[19] The applicant said that the vehicle provided by Mt Pleasant - a truck - was purchased to save on transport costs for the horses and he had used it to transport the horses throughout his employment. He held an MR – Medium Rigid Licence and was not aware of anyone else on the farm who held such a licence. This meant that no-one would be able to drive the truck.

[20] The applicant acknowledged that on 4 December 2014, Mr Hamilton had discussed having more of his horses trained off the farm. He had also reiterated this in another conversation with himself and Ms Bolwell the next day. While Mr Hamilton had referred to the costs of training horses at the farm, he had not detailed the financial viability of the business or provided information on how he had determined these costs. He believed Mr Hamilton had overestimated the costs in relation to working horses and underestimated costs in relation to brood mares, foals and spellers. In any event, even after employing him, Mr Hamilton had continued to have some horses trained off the farm, and he listed a number of horses sent to other trainers during his employment. The applicant had understood that the purpose of the changes proposed by Mr Hamilton in December 2014 was to give him more time to concentrate on his other duties of pre-training, ‘breaking in’ and general care of horses. While Mr Hamilton had asked for his view of external Trainers, he had never been notified of, or consulted in relation to redeployment or redundancy.

[21] The applicant speculated that Mr Hamilton may have believed that he was overstating the seriousness of an injury he suffered on 29 December 2014, which meant that he could not ride horses. In January 2015, he had expressed his concern to Mr Hamilton that he might not have been properly diagnosed, as his injury was not healing. He told Mr Hamilton in early February 2015 that he would be unable to continue riding horses for the purposes of breaking them in and some horses had been sent to an external trainer to complete their breaking-in on 12 February 2015.

[22] The applicant was aware of another employee (Ms Lane) who had suffered a workplace injury in August 2013. When he had suggested some light duties for this employee to undertake, Mr Hamilton had replied ‘She has a worker’s compensation claim, there is no work for her here’ (See Ms Lane’s evidence later in this decision).

[23] The applicant had provided a WorkCover certificate to Mr Hamilton on 11 February 2015 which set out that he could not handle horses and that office duties were recommended. He was dismissed by Mr Hamilton on 13 February 2015. When he had asked Mr Hamilton why he had not been told earlier, Mr Hamilton replied that he had made the decision in the last 24 hours and that he intended that his family look after the horses from now on. The applicant believed he had been dismissed due to the restrictions set out in the WorkCover certificate.

[24] The applicant observed that the respondent had advertised for, and engaged new employees. The advertisement emphasised riding skills (see para [76]). His own previous duties had not been limited to training - they also involved feeding, riding and the general care of horses. The duties described in the advertisement had formed part of his role. Moreover, he was aware of a thoroughbred which had recently been pre-trained at Mt Pleasant. He was also aware that there were three persons employed at the farm carrying out his duties. He understood that the respondent had actually expanded its business and there was scope for his employment to have continued in that it now had 50 horses, as distinct from the nine when he had commenced employment.

[25] The applicant stated that he had relocated his family and changed schools for his high school aged children so he could work at Mt Pleasant. Given these circumstances, Mr Hamilton’s direction to vacate the Thirlmere property, within three weeks, was harsh. He had written to Mr Hamilton on 26 February 2015 to make an offer to remain in the house at a commercial rate of rent. He asked for a further extension to 15 June 2015 and to continue to extend the lease on a week by week basis. Mr Hamilton had responded to this latter request by making an application to the New South Wales Civil and Administrative Tribunal seeking an order for vacant possession of the premises. The applicant and his family had unsuccessfully applied for a number of alternative rental properties around this time.

[26] In cross examination, the applicant said that he had given notice to his old employer, Heritage Park, in February 2012 when he became aware that the property was to be sold. He could not recall if he had already given notice when he first discussed possible employment with Mr Hamilton. He believed it was around this time. His family had been living at Heritage Park, but they returned to Nowra so as to minimise disruption to the children’s schooling. The applicant intended to remain at Heritage Park until his notice expired in April, before following them back to Nowra.

[27] The applicant had a conversation with Mr Hamilton when he had inspected the Heritage Park farm for sale. The applicant had advised Mr Hamilton, out of respect, not to purchase the farm, as he did not believe that it was correctly built. The two had then discussed the possibility of Mr Hamilton investing in his land to make it suitable for the ‘breaking in’, pre-training and training of horses. He was not seeking a job with Mr Hamilton at this point, and was intending to take a break after five years working on a busy farm. As they walked back to the car, Mr Hamilton had asked if he intended to continue training horses and then asked, ‘What package are you on at Heritage Park?’ When he said that he received a wage, car, house, electricity and phone, Mr Hamilton replied, ‘Well, I suppose I can match that.’ They shook hands on this arrangement. At the time, he had not described the house he was in at Heritage Park. Nor had he mentioned what kind of car he had been provided with.

[28] The applicant agreed he had asked for some time off before starting at Mt Pleasant so that he could paint his house. He was due to start in June or July 2012, but he had offered to start earlier when he heard that Mr Hamilton’s wife was very ill. When he finished up at Heritage Park, he had lost the use of the Heritage Park vehicle and his wife had the family car in Nowra. Mr Hamilton had therefore offered him the loan of a vehicle in April 2012.

[29] The applicant was referred to his letter of appointment (see Annexure A). He agreed it was dated 13 June 2012, although he observed that there was no date next to his own signature and that Mr Hamilton had not signed it. This letter had been given to him by Mr Hamilton’s office staff and he had taken it away, discussed it with his wife and signed it. He had refrained from dating it, because he was waiting for Mr Hamilton to sign it. He conceded that it made no reference to housing or electricity, but he had expected Mr Hamilton to honour their verbal agreement. It set out that his actual start date was 2 May 2012. Mr Hamilton had not been present when he arrived on the farm. However, it had been agreed that he would be provided with accommodation until a suitable, more permanent place was found for his family.

[30] The applicant acknowledged that Mr Hamilton had assisted him in his reaccreditation as a Registered Trainer with Racing New South Wales. Registration was necessary for him to take a horse onto a race track site. He understood that the industry practice was that the employer would pay the cost of registration for an employed Trainer. The applicant was shown Rule LR 78 of the Rules of Racing of Racing NSW (the ‘Racing Rules’) which is as follows:

LR 78. (1) A Trainer is at all times responsible for the administration and conduct of his or her stables.

(2) A Trainer is at all times responsible for the care, control and supervision of the horses in his or her stables.

(3) If a Trainer is to be absent from his or her stables, for a period longer than 48 hours, he or she must, with the Stewards permission and approval, deputise a licensed or registered person to be in charge of such stables during his or her absence.

(4) Such deputation does not relieve the Trainer in any way from his or her responsibilities for the care, control and supervision of his or her horses and the conduct of his or her stables.

(5) The person to whom responsibility is delegated does not have the authority to further delegate this responsibility.

The applicant understood that in his role as a Trainer, he would not be able to delegate his responsibilities under sub-rules (1) and (2).

[31] In further questioning, the applicant agreed that he was generally responsible for his day to day duties, particularly as Mr Hamilton was not always on the farm in the first four months of his employment. With the agreement of Mr Hamilton, Ms Lane and Ms Bolwell had both reported to him and Ms Bolwell was apprenticed to him. This meant he had obligations in relation to Ms Bolwell’s education, training and welfare. He also had oversight and responsibility for investigating Ms Lane’s injury and making a recommendation to Mr Hamilton about her return to work.

[32] The applicant had been aware of Mr Hamilton’s intention to take nearly all of his training horses off the farm from 4 or 5 December 2014. He understood that there would only be two horses left on the farm for training. The applicant agreed that Mr Hamilton had said that it would be cheaper to train horses off the farm. He had been concerned about the broodmares and foals being in a paddock with insufficient grass and he had recommended that they be placed onto pasture, although he could not see a simple way of doing this on the farm as it was. Mr Hamilton had not taken his advice on the broodmares and they remained on the farm.

[33] The applicant acknowledged that he had been employed as a Trainer, but did not accept that the main part of his role was no longer needed. In addition to care and feeding, ‘teaching’ horses to lead was necessary, so that that they could be branded, vaccinated and drenched, amongst other things. Being a Trainer constituted 40% of his job. He understood he was paid as a horseman; although he acknowledged that this term did not appear in the Award and was not very specific. ‘Breaking in’ and pre-training remained important aspects of his job. 35 horses remained on the farm, meaning it was overpopulated. It followed that more labour was required for general farm tasks such as increased paddock rotation. He believed the farm would need at least two persons working together for safety reasons. He denied he would have been insulted if the respondent had proposed to employ and pay him as a Farmhand.

[34] In further questioning, the applicant was asked about the injury he sustained on 29 December 2014. He had been taken to Campbelltown Hospital by his wife. While numerous tests had been performed, no serious injury was found at the time. His first WorkCover certificate had recommended two days off work, subject to him visiting his GP the next day. His doctor had asked if he wanted to return to work. Although he had wanted to do so, he was unsure what work he could do. The doctor had recommended a return to work on light duties. The applicant agreed he had not been forced to return to work after two days and he had wanted to check in to see how things were going. His second WorkCover certificate did not restrict his hours. It set out that he could return to work and do what he could tolerate. He agreed he had taken a horse from the farm to Nowra for a race meet on 31 December 2014 - two days after his injury.

[35] The applicant went on a holiday to China on 5 or 6 January 2015, returning on 28 January. While he had been in pain during the trip, he had taken painkillers and his teenage children had handled the luggage.He had not sought medical treatment while in China. He had elected not to cancel his holiday and claim travel insurance, as he wanted to go for the sake of his family and there had been no diagnosis of a serious injury, at that stage. Nevertheless, he remained concerned that there was something which had not been diagnosed, as he could not raise his right arm. He said that standing appeared to alleviate the pain. A WorkCover certificate from 28 January 2015 set out restricted duties, during normal working hours.

[36] The applicant was asked about a horse named ‘Corella’. He agreed that he had offered to ride ‘Corella’. However, Mr Hamilton had refused to let him do so. He had offered because ‘Corella’ was a quiet horse and he was trying to prompt Mr Hamilton into thinking of an alternative rider to ride the horse and to address the staffing issues on the farm. He conceded that as a Trainer, he had obligations for his own health and safety under the Racing Rules.

[37] The applicant acknowledged that there was no clear diagnosis of his injury at the time he was dismissed, but his doctor had told him on 11 February 2015, that he should ‘take it very easy’ and that he should ‘not touch another horse.’

[38] In re-examination, the applicant reiterated that he had deliberately not dated his letter of appointment, as Mr Hamilton had not been present to sign it. He had not wanted to bother Mr Hamilton while his wife was so ill, but the office manager had ‘pressed’ him into signing it.

Ms Melina Jean Lane
[39] Ms Lane provided two brief written statements. Ms Lane was employed by the respondent from 2010. She had assisted the applicant with the general care of horses from when he commenced his employment in May 2012. This involved mixing feed, handling mares, foals, yearlings and spellers, drenching, bandaging and treatment of horses and paddock rotation. She also assisted the applicant in saddling up, exercising and the washing of the horses. She had been involved in the ‘education’ of foals and yearlings prior to their handling by a farrier and vet.

[40] Ms Lane deposed that the applicant had told her of his fall and injury on 29 January 2014. She had been injured herself in August 2013 and had been disappointed by the way the respondent had treated her at the time. For example, she had never been offered any suitable alternative duties while she was recovering from her injury.

[41] In a further statutory declaration, Ms Lane said that she had been told by the applicant, shortly after he started working at Mt Pleasant, that he was provided with a vehicle, accommodation and electricity. She had visited the premises in Thirlmere and had seen the applicant using the work van for both work and private purposes.

[42] In cross examination, Ms Lane acknowledged that she had received all of her workers’ compensation entitlements when she was injured and off work. She agreed that she had written an email to Mr Hamilton’s then assistant, Ms Rhonda Brooks, dated 28 November 2014 setting out that she had been given the ‘all clear’ from her doctor. However, she had decided to resign from Mt Pleasant immediately.

[43] Ms Lane agreed that the respondent was an otherwise generous employer. He had donated a coffee machine for a raffle to raise funds for her daughter to travel overseas and had also donated money to her family directly for this purpose.

[44] Ms Lane said that there were just two employees when she started working for the respondent and three or four when she resigned. She did not believe that it would be difficult to find work for an injured employee in such a small group, as she felt she could have mowed and slashed paddocks. She had been frustrated as she had wanted to be at work. She conceded it was possible that Mr Hamilton had been seeking to protect her, in not allowing her to perform certain onerous duties.

[45] In re-examination, Ms Lane said that her daughter (who had also worked for Mr Hamilton), had been paid at a flat rate, until she had brought the requirements of the Award to Mr Hamilton’s attention. Her daughter had only worked one shift after this time.

Ms Melanie Bolwell

[46] In written evidence, Ms Bolwell said that she had been employed by the respondent as a Strapper/Apprentice Jockey from January 2013 to 30 January 2015.

[47] Ms Bolwell deposed that at a meeting with Mr Hamilton and the applicant on 5 December 2014, Mr Hamilton had set out his intention to have most of his horses trained externally. He also told her that she should go down to Kembla Grange to do ride work. The applicant was to continue to train two horses on the farm. She and the applicant were to continue with the general care of horses, focusing on pre-training, ‘breaking in’ and ‘educating’ horses.

[48] In oral evidence, Ms Bolwell agreed that she was an apprentice to Ms Sue Grills, a Trainer based in Tamworth. A horse being trained at her premises (‘Jonathon’) had been pre-trained at Mt Pleasant. In cross examination, Ms Bolwell explained that ‘Jonathon’ had probably arrived at Ms Grills’ premises in May 2015. She had been working for Ms Grills’ since March 2015 and had stopped working for the respondent in January 2015. She accepted that she could not comment on what had happened to ‘Jonathon’ between January and May 2015.

[49] In re-examination, Ms Bolwell agreed that if it had not been for the meeting with Mr Hamilton on 5 December 2014, she would have stayed at Mount Pleasant as an Apprentice Jockey.

Mrs Margo McCormick

[50] In written evidence, Mrs McCormick deposed that her husband had told her of a conversation he had had with Mr Hamilton in March 2012 in relation to his proposed employment at Mt Pleasant.

[51] Mrs McCormick said that at Mr Hamilton’s initiative, she had met with him on 10 March 2012. Mr Hamilton had outlined to her that a house with electricity would constitute part of her husband’s employment package. Mr Hamilton had given her drawings of a property he owned, along with a number of addresses he wanted her to drive by, to determine if they were suitable. When she telephoned Mr Hamilton the following week, he said that he intended to buy the Thirlmere property and that this would be ideal for her family to live in. The family subsequently moved into this house in January 2013 and electricity bills were paid by Mr Hamilton up to March 2015.

[52] In cross examination, Mrs McCormick denied that her husband had left his employment at Heritage Park on poor terms. She and the two children had moved back to Nowra while he had remained at Heritage Park for a period. They had stayed with a friend for a few weeks while a house they owned in Nowra was readied for their return.

[53] Mrs McCormick insisted that the meeting of 10 March 2012, had been at Mr Hamilton’s request. Mr Hamilton had not contacted her directly to request the meeting and the request was communicated through her husband. She had actually telephoned Mr Hamilton on the morning of 10 March 2012 to reschedule the meeting, but he had asked that it go ahead on that day. Mr Hamilton had met her at her car and she had had a discussion with him in the office about the family moving to Nowra. He had also showed her the property, available for her husband to move into, while he waited for the rest of the family to relocate. The family were welcome to visit during this period. He had also suggested some of his properties for the family to move into, but had not mentioned whether they were currently tenanted.

[54] Mrs McCormick said that the conversation included discussion of the house, a vehicle and the electricity being part of the package provided to her husband. However, she was unclear as to whether Mr Hamilton had used the word ‘package’. After this part of the meeting had concluded, Mr Hamilton had invited her into the home. Mr Hamilton’s wife was there as well. This aspect of the meeting was informal and there had been a general chat about the background of Mr Hamilton and his wife and their experience in the industry and their respective families.

[55] Mrs McCormick said that when she telephoned Mr Hamilton the following week, he had told her that a property next to his house was about to come back on the market and that it would be ideal for her family. She had replied that it sounded good, but the family was not planning to make a decision until later in the year. They had moved there in January 2013 and were still living there. Ms McCormick was adamant that Mr Hamilton’s evidence about becoming aware of the house coming on the market in the second half of 2012 could not be correct. She denied ‘reconstructing’ her evidence on this point.

[56] Mrs McCormick acknowledged that there had been a friendly neighbourly relationship between her family and Mr Hamilton, noting that she had prepared meals for him after his wife had died.

[57] Mrs McCormick denied that it was Mr Hamilton who had told her that there may be a job for her in a real estate agent near Mount Pleasant; rather, he had told her husband and he had passed the information on to her, as she had past experience in the real estate industry.

[58] In re-examination, Mrs McCormick, having been referred to a reference for her husband provided by Heritage Park, reiterated that he had not left employment there on poor terms, even though they had had ‘stern’ words with the owners after they had put the farm on the market.

For the respondent

Mr Roderic Hamilton

[59] Mr Hamilton is the sole director of Mt Pleasant Stud Farm Pty Ltd, which operates a property of 325 acres with 15 box stables at Thirlmere, New South Wales. The respondent is engaged in breeding, ‘educating’ and racing horses. While the property stables 50 horses, this number obviously varies from time to time.

[60] In written evidence, Mr Hamilton said that prior to employing the applicant, he had always engaged externally contracted Trainers to train for his horses. He had become aware of the applicant and his experience when the applicant was working at Heritage Park in Oakdale. After deciding against an earlier intention to purchase that property, Mr Hamilton had asked the applicant to work at Mt Pleasant and he agreed to do so.

[61] Mr Hamilton said that when the applicant was first employed on 2 May 2012, the terms of his employment were recorded in a letter dated 30 June 2012, which was signed and returned by the applicant (Annexure A). This document identified the applicant’s address in Nowra and did not refer to the provision of accommodation on the Mt Pleasant property. He had subsequently allowed the applicant and his family to move into a house adjacent to the property as ‘an act of grace’, after having earlier allowed the applicant to move into his own house. Around this time, Mr Hamilton, was attending to his seriously ill wife in Sydney.

[62] Mr Hamilton explained that two years after employing the applicant, he had formed the view, after analysing his costs, that the business could not remain viable if it continued to operate in the same manner. During an informal meeting with the applicant on 4 December 2014, he told him that it was not financially viable to continue to train horses on the farm. Mr Hamilton recalled telling the applicant at the meeting on 4 December 2014 that he would ‘be able to concentrate on the care of our broodmares. We are spending a lot of money on service fees for our broodmares.’ When the applicant asked to see his costings, he provided a brief verbal explanation of his financial position. Mr Hamilton noted that it cost $150 a day for the applicant to train the horses, while an external Trainer at Kembla Grange could do the same work for $80 per day. Nevertheless, Mr Hamilton said that he had not made a final decision as to whether the applicant was to be made redundant, as he was attempting to find another position for him within the business. Some days later, the applicant had handed him a schedule of training costs from another Horse Trainer, Mr David van Dyke. A few days later, in a conversation about paddock allocation, the applicant had suggested that it would be a good idea to send a number of the broodmares to Wagga Wagga.

[63] Mr Hamilton deposed that on the morning of Friday 13 February 2015, he had a conversation with one of his stablehands (Rhiannon), who said that she would be leaving the farm as she was not earning enough money. Later that day, he had the conversation with the applicant, which is recorded in para [2] above.

[64] Mr Hamilton also told the applicant that he and his family had three weeks to vacate the property. Mr Hamilton handed a letter to the applicant, dated 13 February 2015 (see para [3]). Mr Hamilton claimed that he was not aware of the full extent of the applicant’s injury at this time. He believed the applicant had been able to undertake a fair proportion of his duties during his recovery.

[65] Mr Hamilton referred to correspondence dated 26 February 2015 in which the applicant asked him to reconsider his request that the applicant and his family vacate the premises. In a letter dated 5 March 2015, he responded by offering a three month lease of the house at $300 per week. As this was said to be less than the market value of $450 per week, he considered his offer to be fair and reasonable. The correspondence was accompanied by a tenancy agreement and a copy of the last electricity bill to assist the applicant in transferring the electricity supply to his own name.

[66] Mr Hamilton emphasised that there were currently no horses being trained at Mt Pleasant. No-one presently on the farm performed horse training work similar to that performed by the applicant. There were three casual farmhands employed on the farm. The farm is the only business operated by the respondent and there were no viable redeployment options for the applicant. There was no intention to engage in training on the farm in the foreseeable future.

[67] In further written evidence, Mr Hamilton did not dispute that the applicant had carried out other duties, in addition to horse training. Many of these were general duties usually carried out by stablehands; but Trainers would carry out more of these duties, if their training responsibilities permitted. Mr Hamilton denied having said that the farm was no longer operational. There were currently some casual employees on the farm, although these were farmhands, who did not perform any horse training duties.

[68] Mr Hamilton said that he had not kept detailed notes of the ‘somewhat informal’ earlier meetings between himself, the applicant and Mrs McCormick in March 2012. He stressed that the applicant’s terms and conditions were recorded in the letter of appointment dated 13 June 2012 (See Annexure A). He recalled saying to the applicant when he first visited Mt Pleasant Farm: ‘Well, what do you think?’ The applicant had replied, ‘Yeah, ok, but I will need $1,000.00 in the hand.’ He recalled having responded, ‘Yes. I think we can manage that’.

[69] Mr Hamilton could not recall discussing the terms and conditions of the applicant’s employment at a meeting arranged, at Mrs McCormicks’ request, in March 2012 in his kitchen between himself, his late wife and Mrs McCormick. Mrs McCormick had mainly been interested in discussing their experience as Horse Trainers.

[70] Mr Hamilton denied that the applicant had told him that he had been provided with accommodation, a phone and electricity in his previous job at Heritage Park. He also denied having told the applicant that similar arrangements would be provided for him at Mt Pleasant. He noted there was no mention of such an arrangement in the reference from his former employer. However, he had advised the applicant and his wife that he had interests in other properties in the area and invited them to inspect the properties. The applicant had told him that his wife had driven past one of the properties, but thought it was unsuitable. Mr Hamilton referred to another property which he had acquired in August 2012. He had allowed the applicant’s family to move into this property at the end of January 2013. The respondent had paid for the electricity from the first bill issued in April 2013 and had also reimbursed the applicant for mobile phone expenses from 11 October 2012. These arrangements, in contrast to the provision of the motor vehicle, were not set out in the letter of appointment.

[71] Mr Hamilton clarified Ms Bolwell’s evidence as to the two horses that had remained at Mt Pleasant for training. One of these had a condition (‘tying up’) which Mr Hamilton believed would best be dealt with by continuing to train it on the farm; while a two year old filly was jointly owned by the applicant and himself. As the applicant had told him that he would not be able to afford his share of external training, Mr Hamilton had allowed him to continue to train this horse on the farm. Some time before the applicant was made redundant, Mr Hamilton purchased the applicant’s interest in the filly.

[72] Mr Hamilton emphasised that the respondent had complied with its WorkCover obligations in relation to Ms Lane’s injury. She had provided a number of WorkCover certificates, all of which set out that she was unable to do farm work. It was not possible to give her office work, as this work was being performed by another employee. Ms Lane had resigned once her injury had resolved.

[73] Mr Hamilton deposed that at some time in January 2015, the applicant had told him that his injury was not improving and that he was unhappy with his doctor. He had suggested that the applicant consult another doctor. At another time, the applicant had told him of an earlier back injury, prior to his employment at Mt Pleasant. Mr Hamilton had sometimes observed the applicant wearing black lumbar support while performing training duties. In January 2015, he had asked how the applicant’s shoulder had been, while he had travelled overseas. The applicant had said that the only problem was when he was required to hold his arms above his head when passing through airport security.

[74] Mr Hamilton acknowledged that the applicant had provided a WorkCover certificate on 11 February 2015. It was in similar terms to one provided on 28 January 2015, but it specifically set out ‘no handling of horses, office duties recommended’. He had not been aware of any specialist diagnosis when the applicant’s employment was terminated on 13 February 2015. In any event, he had already decided to terminate the applicant’s employment prior to 11 February 2015. He annexed a copy of a termination letter dated 5 February 2015 which he had not given to the applicant. He had delayed termination of the applicant, as the sale of the applicant’s share in the two year old filly was not finalised until 10 February 2015. Mr Hamilton denied ever having relied on serious misconduct, as a basis for the applicant’s termination of employment.

[75] Mr Hamilton denied that there had been a conversation with the applicant about him working as a Stud Farm Attendant. He believed the applicant would have been insulted by such a suggestion. Mr Hamilton agreed that he had placed online advertisements with Racing Jobs, on or around 11 March and 21 April 2015. These jobs were for casual Stud Farm Attendants - not Trainers.

[76] In cross examination, Mr Hamilton was referred to the advertisement for Stud Farm Attendant, dated 21 April 2015, the description of which was as follows:

‘We are seeking someone who has a passion for race horses and is a capable, energetic team worker.

The duties of the Stud Farm Attendant will include:

Feeding and general care of stud horses and young horses
General hours are 3 hours in the morning and 2 hours in the afternoon
Some weekend work involved

Experience with thoroughbreds preferred

Riding experience beneficial

Mt Pleasant Stud Farm is a smoke free work place

If you are interested in this position please send your resume.’

[77] Mr Hamilton denied he was advertising for employees to ‘pre-train’ horses. He had advertised for persons with riding ability as he believed this experience was indicative of someone who could handle horses and understood them. While he was unsure as to whether someone could be a ‘horseman’ without riding skills, he thought there would be plenty of people who understood horses, but who did not ride them.

[78] Mr Hamilton set out the number and category of horses on his farm as follows:

36 horses on the farm on 13 February 2015		35 Horses on farm as at close of business 29 January 2015
8	Wet mares
8	Foals
3	Mares in foal	10	Mares in foal
3	Maiden mares
1	Empty mare
3	Retired race horses
8	Weanlings
4	Spellers	2	Spellers
8	Yearlings	9	Yearlings
2	Untried hourses	2	Untried horses
Staff consisted of 1 stable hand and myself.		Staff consists of 3 casual farm hands and myself.

[79] In oral evidence, Mr Hamilton explained that at the time he had originally asked Ms Sue Grills (a Trainer in Tamworth) to take on another horse to train, she had been unable to do so. Sometime later, he spoke to Ms Grills and she agreed to take on a horse named ‘Jonathon’. ‘Jonathon’ was prepared by bringing him into the stables and exercising him on a horse walking machine. This was done by himself and a farmhand. He now had two, rather than three, farmhands and they worked on a rotational roster. In cross examination,Mr Hamilton agreed that ‘Jonathon’ had been ridden prior to going to Tamworth. The two farmhands were social riders who had ridden ‘Jonathon’ and another horse (‘Capsicum’) around the paddock, with his permission. They had not ridden him as part of a training regime.

[80] Mr Hamilton did not agree that the training of a racehorse begins when it is a foal. In order to vaccinate a horse or have a horse shoed, it would be necessary to have someone ‘educate’ the horse ‘to lead’. The applicant had ‘educated’ horses in this fashion when he worked at Mt Pleasant and other persons on the farm did this work now. In any event, he drew a distinction between ‘training’ and ‘educating’ a horse, by explaining that ‘education’ involves the horse becoming familiar with humans and accepting human contact. Training involves giving the horse to a Trainer, to prepare it for racing. There had been no horses trained or ‘broken in’ on the farm since the applicant had been dismissed.

[81] Mr Hamilton agreed that when he advised the applicant of his immediate termination on 13 February 2015, he said that he had only made the decision in the previous 24 hours. When asked about the consultation provisions in the Award, Mr Hamilton explained that he had told the applicant that horses would be sent off the farm for training on 4 December 2014. He had not mentioned ‘breaking in’ horses during this conversation. He had started sending horses to other premises to be ‘broken in’ from 13 February 2015. However, these arrangements had been booked two weeks earlier. While he had not advised the applicant of these arrangements, he believed the applicant was already aware of his intention to send most of the horses to other premises.

[82] Mr Hamilton denied having told the applicant and Ms Lane at a meeting on 5 December 2014 that training horses off the farm was intended to free up time for them to deal with pre-training, ‘breaking in’ and ‘educating’ horses; rather, he had said that the applicant would have more time to concentrate on the broodmares. While he could not recall his exact words, he had advised Ms Bolwell the following day that nothing would change and her position was secure.

[83] Mr Hamilton acknowledged that he had not read the Act’s provisions relating to ‘genuine redundancy’. He had not advised his employees, in writing, of the relevant changes or the expected effect on them. When asked as to possible redeployment opportunities, given that the farm now had 50 horses (rather than the nine at the time of the applicant’s dismissal), Mr Hamilton conceded that he was unaware of the redeployment requirements in the Award, as he had not taken any legal advice before terminating the applicant’s employment. Nevertheless, he believed he had acted responsibly.

[84] Mr Hamilton said that one of the junior farmhands had now taken over the duties of mixing feeds, general care of horses, feeding out horses, handling mares, foals, yearlings and spellers, teaching foals to lead, drenching horses and holding horses for vets and farriers. While he acknowledged that the respondent continued to ‘breed, race and educate horses’, nobody was presently engaged in training horses at Mt Pleasant.

[85] Mr Hamilton repeatedly denied that he had asked the applicant what package he was on at Heritage Park. At no time, had he agreed to provide a house, electricity and a car as part of the applicant’s package.

[86] Mr Hamilton said that when he had been informed of the applicant’s injury, he had asked Ms Bolwell about the nature of the accident. He believed the business had notified the insurer within 48 hours and then consulted with the insurer and the doctor as to the applicant’s return to work. He had little involvement with the applicant’s return to work program, as it was primarily organised through his office manager.

[87] Mr Hamilton acknowledged that he had asked the applicant to hold a horse (half owned by each of them), for a photograph, after he had provided his WorkCover certificate of 11 February 2015, which set out that he should not engage in handling of horses. However, after the applicant had refused to hold the horse for the photograph, Mr Hamilton had not compelled him to do so. While he had directed the applicant to load horses to go to Bowral the next day, the applicant could have been assisted by issuing verbal directions of his own to other employees.

[88] Mr Hamilton conceded that he had not consulted with staff regarding the development of the applicant’s return to work plan. He agreed that his office had had contact with Racing New South Wales, the workers’ compensation insurer for the respondent. He insisted the timing of the applicant providing his WorkCover certificate, two days prior to his formal redundancy, was coincidental. In response to a question from me, Mr Hamilton clarified that his reference to making a decision 24 hours beforehand was the physical act of handing the notice to the applicant, not the decision that the applicant’s role was redundant. That decision had been made some weeks earlier.

[89] Mr Hamilton reiterated that when he had told the applicant of his redundancy, he had also said that members of his own family would be looking after the horses. The two or three employees now engaged on the farm (aside from his family) were casual farmhands. They were not doing the applicant’s job, although they were carrying out some of the same duties. Mr Hamilton said that after the applicant’s redundancy, only his son in law had assisted him in cleaning out stables, mixing feed and feeding horses. He was not paid for this work.

[90] While Mr Hamilton recalled a conversation with the applicant in relation to the costs of keeping brood mares on the farm, he could not recall whether the cost was substantially more than the agistment costs at Wagga Wagga. Even so, there had been substantial savings since he had changed the operations of the business. He anticipated sending 12 brood mares off to stud in the coming year.

[91] In re-examination, Mr Hamilton said that his wife had been seriously ill when the applicant had commenced employment and had passed away seven months later. He had had a close personal relationship with the applicant in this period and the applicant had run the farm, on his behalf, when he was away with his wife during her illness. He had found the decision to make the applicant redundant very difficult and had avoided making it until the last minute. He had been trying to ‘cushion the blow’ when he had told the applicant that he had only made his decision in the last 24 hours.

[92] Mr Hamilton stated that his personal involvement with the WorkCover matters involving the applicant and Ms Lane was ‘very peripheral’. His office manager had been most involved and she only worked Wednesday through Friday.

[93] Mr Hamilton clarified that he and his office manager had performed comparative costings in relation to training both on and off the farm and the latter was cheaper. The farm had not been making much money towards the end of 2014 and he had not replaced employees who had left.

[94] Mr Hamilton drew a distinction between ‘breaking in’ and ‘pre-training’. ‘Breaking-in’ would happen first, but progress through stages of training was largely dependent on the horse. Mr Hamilton initially stated that prior to 2013, he had never employed someone to train horses on his farm since commencing operations in 1976. However, he subsequently clarified his evidence and said that he had engaged a contractor to assist with handling, ‘breaking-in’ and ‘education’ between 2009 and 2011. The contractor would have worked on a maximum of four horses at the time.

[95] Mr Hamilton said that until the second half of 2012, he had not even known of the property into which the applicant and his family had moved in January 2013. It had been purchased in August 2012. He had given the applicant the use of the van prior to him starting at Mount Pleasant when the applicant had told him that he needed to return a company ute to his previous employer. This arrangement was on the basis of a ‘gentleman’s agreement’.

SUBMISSIONS

For the respondent

[96] In written submissions, Mr Lloyd put that the respondent was a Small Business Employer, as defined. The applicant had been employed, pursuant to the letter of appointment (see Annexure A) and the respondent had not previously employed anyone with the same duties. Following a financial analysis of its activities in late 2014, Mr Hamilton had formed the view that it would not be commercially viable to continue training horses on-site. This conclusion had been discussed with the applicant in December 2014. Mr Hamilton had not been able to identify another role suitable for the applicant to be redeployed to. The respondent no longer engaged in the activity for which the applicant was employed and did not intend to do so in the future. Accordingly, the applicant’s role no longer existed.

[97] Mr Lloyd denied that the applicant’s injury was relevant to the respondent’s decision to make him redundant. The termination of the applicant’s employment was a ‘genuine redundancy’, within the meaning of s 389 of the Act and the Commission had no jurisdiction to determine the applicant’s unfair dismissal application.

[98] In oral submissions, Mr Lloyd noted that the applicant had signed a letter of appointment identifying his role as a Trainer. The applicant’s evidence as to his reasons for not dating the letter after signing it, was of no significance and were irrelevant.

[99] Mr Lloyd said that the evidence demonstrated that on-site horse training had almost completely disappeared from the respondent’s farm at the end of 2014. The applicant was the only employee on the farm at the time he was terminated. Mr Hamilton had given evidence that he had needed to get help from his son in law after this time. The respondent had not employed a Horse Trainer in the past (notwithstanding the engagement of a contractor to briefly provide those services). In reality, the employment of an on-site Horse Trainer could be characterised as an unsuccessful experiment by the respondent. In these circumstances, s 389(1)(a) of the Act, had been satisfied.

[100] Mr Lloyd suggested that the close personal relationship between the applicant and his wife on one hand and Mr Hamilton on the other, along with commercial considerations, meant that Mr Hamilton had found it difficult to deliver the bad news of the applicant’s redundancy. Mr Lloyd submitted that regardless of the number of horses on the farm, the respondent was a Small Business Employer. Mr Hamilton was not conversant with the Act, the Award and the relevant work safety legislation. While it was conceded that he could have better addressed the consultation requirements under the Award (s 389(1)(b)), he had done his best in the circumstances. These considerations and the respondent’s status as a Small Business Employer were matters that the Commission should take into account when determining whether the applicant had been unfairly dismissed. He submitted that Parliament had evinced an intention to deal differently with Small Business Employers (s 388), but acknowledged that the applicant had not been dismissed for misconduct or for performance reasons.

[101] Referring to redeployment, Mr Lloyd said that it was uncontroversial that there was no related entity to which the applicant could have been redeployed. Additionally, Mr Hamilton had thought it would have offended the applicant to offer him the alternative drudgery of farmhand work, given his status as a Horse Trainer.

[102] Mr Lloyd noted that there was no medical diagnosis or other evidence before Mr Hamilton to suggest that the applicant had suffered a long-term or serious injury until after the applicant had been dismissed. The applicant had voluntarily returned to work just two days after his initial injury and had to be directed by Mr Hamilton not to ride a horse because of his restrictions.

[103] Mr Lloyd said that as the respondent was a Small Business Employer, there was no obligation for it to pay the applicant any redundancy payments. In accordance with the National Employment Standards (NES) he had been paid two weeks’ notice, plus one extra week because he was over 45 years of age.

For the applicant

[104] In written submissions, the applicant referred to his letter of appointment, which clearly set out that his terms and conditions of employment were covered by the Award. The respondent had failed to comply with the termination of employment and redundancy provisions in the Award. He had not been consulted about his redundancy and no alternative redeployment options had been discussed with him. He had not been notified, in writing, as to the changes and the expected effects those changes would have on his future employment.

[105] The applicant said that at the commencement of his employment, Mr Hamilton had stated that he intended to continue training some horses externally and that the applicant would be responsible for the general care of horses, cleaning, watering, mucking out stables and paddocks and holding horses for farriers, vets and others. The applicant had advised Mr Hamilton in November 2014 that the number of horses required to be ‘broken in’, in the immediate future would require extra staff. On 4 and 5 December 2014, Mr Hamilton had advised that more horses were to be trained externally to allow the applicant to concentrate on breaking horses in, handling foals, pre-training and general care.

[106] The applicant referred to his injury on 29 December 2014. He agreed he had returned to work two days later. He had expressed concern to Mr Hamilton in January 2015 that there may have been a misdiagnosis of his injury. While he had commenced ‘breaking in’ horses at the end of February 2014, he had advised Mr Hamilton that he could not complete breaking them in, as he could not ride them. He recommended that they be sent to a third party for this work to be completed. The applicant was terminated on 13 February 2015, two days after receiving a WorkCover Certificate which set out ‘No handling of horses, office duties recommended’. Following a further diagnosis on 16 February 2015, he was then waiting for surgery. The applicant believed his dismissal was as a direct result of his injury at work. It was unlawful for the respondent to dismiss him because of his injury, within six months of him suffering that injury. The applicant observed that Mr Hamilton had refused to provide suitable duties to another employee who had been injured on the farm.

[107] The applicant did not accept that his dismissal was consistent with the Code. He had not engaged in misconduct and had never been given any reason relating to his performance, which indicated that his employment might be at risk.

[108] The applicant understood that in circumstances where there was a ‘genuine redundancy’, he could not bring an application for an unfair dismissal remedy. However, his dismissal was not a ‘genuine redundancy’. There had never been any discussion in relation to a business downturn. He noted that Mr Hamilton had said that he had made his decision to terminate him in the previous 24 hours. He also noted that the respondent had advertised for, and engaged new employees since he had been dismissed.

[109] In oral submissions, the applicant put that his dismissal was ‘harsh, unreasonable and unjust’. Mr Hamilton had conceded that he had not read and had not complied with the respondent’s obligations under the Award, the Act and the Code.

[110] The applicant offered some initial submissions on remedy. He sought the maximum compensation from the Commission to reflect the severity of his case, his workplace injury, the uncertainty of his future, his continued unemployment and his risk of becoming homeless. In addition, he sought compensation for ‘non-monetary’ items under the ‘package’ agreed to with the respondent, being a total of $30,320. Having acknowledged he was paid $800 per week in workers’ compensation (80% of his wages) and may have been receiving 95% of his wages for the first 13 weeks, he sought 23 weeks’ pay as compensation, minus those amounts. He sought 23 weeks in recognition of the three weeks’ notice he had been paid (although I suggested to the applicant that notice would not ordinarily be deducted from any compensatory order as it was a statutory requirement).

[111] In reply, Mr Lloyd submitted that, if the Commission were to find that the applicant’s dismissal was not a ‘genuine redundancy’, then in the alternative, it was not unfair. If the dismissal were found to be unfair, much of what the applicant sought seemed to be precluded by s 392(4) of the Act. Additionally, for the first 13 weeks, his loss appeared to be only 5% of his wages, being $50 per week and then 20% for the following 13 weeks, being $200 per week. The applicant would continue to receive workers’ compensation until at least August 2015; See: Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 (‘Sprigg’).

[112] As the hearing was only dealing with the jurisdictional questions, the parties reserved their rights to make further submissions, as to whether the dismissal was unfair and, if so, what remedy should be ordered.

CONSIDERATION

[113] At the outset, I consider that the conflicting evidence in the proceeding going to the applicant’s letter of appointment, his alleged ‘package’ and the circumstances surrounding the occupancy of a property owned by Mr Hamilton are not relevant for the purposes of determining the jurisdictional objections raised in this case. That being so, it is unnecessary, at this stage, to resolve any evidentiary conflict in these matters as they are not determinative to the issues the Commission must resolve in this case.

[114] Two jurisdictional matters are raised for determination at this point. Firstly, whether the applicant’s dismissal was a case of ‘genuine redundancy’. If it was, the dismissal could not be an unfair dismissal within the meaning of 385 of the Act. Secondly, it was submitted that as a Small Business Employer, the applicant’s dismissal was consistent with the Code.

[115] I can dispose of the Code question in relatively short order. The Code is expressed as follows:

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

[116] While there can be no doubt, the respondent was a Small Business Employer, I do not see how the Code is relevant in the context of its primary objection based on ‘genuine redundancy’ grounds. This is so, because, shortly stated, the Code deals with dismissals for cause; that is, involving either the employee’s conduct, including serious misconduct, or capacity to do the job and the assessment of procedural fairness relating thereto.

[117] As Mr Lloyd expressly (and appropriately) eschewed any allegations of conduct, including misconduct, or an incapacity to do the job, I do not see how reliance on the Code takes the respondent’s case very far at all. I think the respondent is confusing its defence as to whether the applicant’s dismissal was ‘harsh, unreasonable or unjust’, which is not what the case is about - although it may well be subsequently.

[118] I am fortified to the above conclusion by the findings of the Full Bench in UES (Int’) Pty Ltd v Harvey [2012] FWAFB 5241, in which it was found that a dismissal unrelated to an employee’s conduct or capacity was a neutral matter, but a failure to meet the criteria set out in s 389 of the Act may be taken into account to determine whether the dismissal was ‘harsh, unjust or unreasonable’ under s 387(h) of the Act. The Full Bench said at paras [27]-[30]:

‘[27] The terms of s.389 of the FW Act suggest the process for selecting individual employees for redundancy is not relevant to whether a dismissal was a case of genuine redundancy. The relevant Explanatory Memorandum confirms as much. Setting aside jurisdictional pre-requisites and the matters in s.396(a) to (c), FWA only needs to consider s.387(a) concerning whether there was a valid reason for a person’s dismissal related to the person’s capacity or conduct if one or more of the criteria in s.389 of the FW Act, which sets out the meaning of genuine redundancy, have not been met. The criteria in s.389 which have not been met can be taken into account in FWA’s consideration as to whether the dismissal was harsh, unjust or unreasonable as part of s.387(h), being “any other matters that FWA considers relevant”

[28] We think it unlikely that it was intended that FWA’s consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct would extend to the process for selecting the person for redundancy when:

(i) the process for selecting a person for redundancy is not relevant to FWA’s determination of an unfair dismissal remedy application if the s.389 criteria for a case of genuine redundancy are met, and

(ii) any unmet criteria in s.389 of the FW Act can be taken into account as part of s.387(h) in FWA’s consideration as to whether the dismissal was harsh, unjust or unreasonable.

[29] To conclude otherwise would mean that where an employer met the s.389 criteria for a genuine redundancy the process for selecting the person for redundancy would not be a matter FWA would consider in respect of an unfair dismissal remedy application. However (unless the application was otherwise determined) an employer who did not meet the s.389 criteria because, for example, they failed to consult as required by s.389(b) of the FW Act would have both the failure to consult and the process for selecting the person for redundancy considered in any unfair dismissal remedy application.

[30] We recognise that statutory provisions concerning a valid reason for termination of employment connected with or related to an employee’s capacity or conduct and the issue of the selection process for redundancy were considered by the Full Federal Court in Kenefick v Australian Submarine Corporation Pty Ltd (No 2) and Cosco Holdings Pty Ltd v Thu Thi Van Do and Others and a Full Bench of the Australian Industrial Relations Commission in Windsor Smith v Lui. However, the legislative context in which each of those decisions was made was very different to that in the FW Act [footnotes omitted].’

[119] I turn now to the jurisdictional issue of ‘genuine redundancy’.

Meaning of redundancy

[120] As mentioned earlier, s 389 of the Act expressly defines ‘genuine redundancy’ 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.

[121] The Explanatory Memorandum to the Fair Work Bill 2008 developed the meaning of ‘genuine redundancy’ as follows:

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.

[122] It is trite to observe that the meaning of the term ‘redundancy’ may vary, depending on the particular industrial context and/or the text of an applicable industrial instrument. In Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10, Gleeson CJ and McHugh J held at [12] that:

‘In the industrial context, redundancy of position is not a concept of clearly defined and inflexible meaning.’

[123] More recently, a Full Bench of this Commission in Construction, Forestry, Mining and Energy Union and others v Spotless Facility Services Pty Ltd[2015] FWCFB 1162 said at para [66]:

‘[66] The meaning of the word ‘redundancy’ is not fixed and the term will take colour from its context. However, in any relevant context it is the abolition of a position which leads to that position being redundant. The cause of the abolition of the position – whether business restructure, technological advance, loss of contract/ordinary turnover or otherwise – is a separate matter, albeit one which may determine the entitlements of the redundant employee. Indeed the presence of the express exclusion in s.119 (and in the predecessor TCR case) demonstrates that the abolition of a position as a result of ordinary and customary turnover is a redundancy; albeit one that does not give rise to an entitlement to redundancy pay. The exclusion would otherwise be entirely otiose. As we have earlier indicated, s.119 does not define ‘redundancy’. It merely sets out the circumstances in which an employee will or will not have an entitlement to redundancy pay under the NES. Doubtless employees who fall within the class have been dismissed by reason of redundancy, but ‘redundancy’ is not thereby so narrowly confined. Further, although we accept that the industrial contextual considerations identified by Spotless lend some support to its contention, other industrial contextual considerations cannot be ignored. There is firstly the incorporation of the redundancy provisions of the Building On-Site Award and the Plumbing Award which each carry a definition of redundancy which is contrary to the meaning of redundancy contended for by Spotless [footnote omitted].’

[124] In Foster’s Group Ltd v Wing (2005) 148 IR 224 (‘Foster’s v Wing’), Habersberger AJA referred to a number of the higher court authorities on the subject of redundancy. At pages, 230-233, His Honour said:

‘The Meaning of Redundancy

33. A clear guide to the meaning of redundancy is to be found in the judgment of the Full Court of the Supreme Court of South Australia in R v Industrial Commission (SA); Ex parte Adelaide Milk Supply Co-operative Ltd. In that case Bray CJ said that:

“ … the concept of redundancy in the context we are discussing seems to be simply this, that a job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him but because the employer no longer wishes the job the employee has been doing to be done by anyone. ”

Bright J expressed a similar view:

“The word ‘redundant’ does not occur in the Act. In its industrial sense it is not defined in the Oxford Dictionary. The application which I have already set out attempts a definition for the purpose of the proposed award. A consideration of the cases leads me to think that the question of the redundancy of an employee is linked to the question of the continued utility of the job which he is performing. In other words it does not relate to the personal competence of the employee in the job which he is performing. If I am right in this, then in its widest form the concept of redundancy connotes that an employee becomes redundant whenever (and for whatever reason) his employer no longer desires to have performed the job which that employee was doing. ”
34. The meaning of redundancy was recently considered by the Full Court of the Federal Court of Australia in Dibb v Commissioner of Taxation (Cth).That case arose out of a private ruling by the Commissioner concerning the tax liability of Mr Dibb in respect of a lump sum settlement received by him following the termination of his employment as a district manager with a finance company. One of the issues was whether Mr Dibb's dismissal was by reason of his bona fide redundancy within the meaning of s 27F of the Income Tax Assessment Act 1936  (Cth). In a joint judgment, Spender, Dowsett and Allsop JJ referred to Adelaide Milk and continued:

“34 We note also the observations of Ryan J in Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308 as follows:

‘However, it is within the employer's prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to single position and distributing them among the holders of other positions, including newly-created positions. It is inappropriate now to attempt an exhaustive description of the methods by which a reorganisation of that kind may be achieved. One illustration of it occurs where the duties of a single, full-time, employee are redistributed to several part-time employees. What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant in the sense in which the word was used in the Adelaide Milk Co-operative case.

“35 Similarly in Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327 at 332-333 Beazley J said:

‘There was no dispute that the “operational requirements” of a business may include redundancy. A redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed.; or where the employer wishes to amalgamate jobs. … As was said in Bunnetts'  case (Bunnett v Henderson's Federal Spring Works Pty Ltd (1989) 31 AILR 354:

“Organisational restructuring may result in a position being abolished and the functions or some of them being given to another or split amongst others.

“36The Macquarie Dictionary (3rd ed, 1997) now relevantly defines ‘redundant’ as meaning:

‘ … denoting or relating to an employee who is or becomes superfluous to the needs of the employer …

“37In the Oxford English Dictionary (2nd ed, 1991) the word is defined relevantly as:

‘The condition of having more staff in an organisation than is necessary. Hence, the state or fact of losing a job because there is no further work to be done; a case of unemployment due to reorganisation, mechanization, loss of orders, etc.

35. Their Honours contrasted the position adopted by the Commissioner and the primary Judge with the approach espoused by the South Australian Full Court in Adelaide Milk, which necessitated “identification of the ‘jobs’ in question”. Their Honours continued:

“41In Jones Ryan J observed that a job involves ‘a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer's organisation, to a particular employee’. We accept that view. Ryan J then observed that where such duties are reassigned, the question is whether any function or duty remains to be performed by the employee. We do not understand his Honour to have meant that if any aspect of the employee's duties is still to be performed by somebody, he or she cannot be redundant. His Honour's meaning appears clearly from the following paragraphs at 308-309:

‘In this case, the respondent led evidence that of the major changes which were made to the Department between September 1993 and late 1994. According to Mr Downie, the applicant's former position as Director, Mining Inspectorate, was abolished and the duties attached to it were combined with those of the previous Director, Environmental Management. In addition to a number of other, newly-created functions, those pre-existing duties were to be performed by a newly created General Manager, Mineral Operations. Thus it is clear that although some of the tasks previously assigned to Mr Jones still had to be carried out, the employer's rearrangement of its operational structure had the consequence that they be combined with other functions and performed by the holder of a new, more generally-oriented position.

On this basis, it appears that Mr Jones' former position was rendered “generally redundant”. When it became apparent that he could not be redeployed, Mr Jones was found to be surplus to the respondent's personnel needs. This amounted to a reason for dismissal which was clearly based on his employer's operational requirements.

“42 As Beazley J observed in Quality Bakers:

‘A redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed; or where the employer wishes to amalgamate jobs …

“43 The difficulty in this case has been caused by the aphorism which appears in both paras 12 and 42 of TD 94/12 to the effect that the job, not the employee, becomes redundant. However s 27F speaks of the ‘bona fide redundancy of the taxpayer’. We consider that it is more accurate to say that an employee becomes redundant when his or her job (described by reference to the duties attached to it) is no longer to be performed by any employee of the employer, though this may not be the only circumstance where it could be said that the employee becomes redundant. Reallocation of duties within an organisation will often lead the employer to consider whether an employee, previously employed to perform specific functions assigned to a particular ‘job’, will be able to perform any available ‘job’ existing after such reallocation. Even if the employee's job, defined by reference to its duties, has disappeared, he or she may be able to perform some other available job to the satisfaction of the employer. In that case, no question of redundancy arises. It is only if the employer considers that there is no available job for which the employee is suited, and that he or she must therefore be dismissed, that the question of redundancy arises. If, in good faith, the employer:

• has reallocated duties;



• considers that the employee is not suitable to perform any available job, defined by reference to those reallocated duties, existing after the re-allocation; and



• for that reason, dismisses the employee.

then, for the purposes of s 27F, the employee is dismissed by reason of his or her bona fide redundancy. In the above discussion we have used the word ‘available’ as meaning ‘vacant’, and the word ‘suitable’ as meaning ‘within the employee's capacity’. ”

36. It seems to me that the approach followed in Adelaide Milk has been reflected in the wording of Foster's policy. The critical question is whether through no fault of the employee his or her role no longer exists or the duties have so changed that for all practical purposes the original role no longer exists [footnotes omitted].’

[125] Further, in Hodgson v Amcor Ltd (2012) 264 FLR 1, Vickery J, after summarising the various authorities, arrived at the following conclusions:

‘In essence, subject to any qualification or re-statement found in the relevant contract of employment or any applicable statute, the common law concept of “redundancy” comes down to the following propositions:

(a) A job becomes redundant when the job of the employee ceases to exist because the employer, for whatever reason, whether by reason of reorganisation, mechanization, change in demand or other reason, no longer desires to have it performed by anyone;

(b) This can occur either when the role no longer exists or the duties have so changed that for all practical purposes the original role no longer exists;

(c) However, redundancy is not limited to the circumstance where the employer, no longer desires to have the work previously performed by the terminated employee done by anyone;

(d) A redundancy may also arise upon the redistribution of job functions, where the duties performed by an employee are redistributed among other employees.In this case the employer still requires the duties to be performed, but the re-organisation may give rise to a redundancy. In this event, although the duties remain to be performed, “for all practical purposes the original role no longer exists” because the duties are divided and assigned amongst others. In such a case the question is whether any function or duty remains to be performed by the employee. A redundancy will occur if, after the reorganisation, the employee in question is left with no duties to discharge;and

(e) Redundancy will not arise where the termination of employment is carried out solely because of any personal act or default of the employee terminated or for any consideration peculiar to that employee [footnotes omitted, emphasis added].’

[126] And again, in Ulan Coal Mines Limited v John Howarth and others[2010] FWAFB 3488 (‘Ulan Coal v Howarth’), a Full Bench of the Commission held at paras [19]-[20] that:

‘[19] In the present case, the Commissioner appears not to have drawn an appropriate distinction in his reasoning between the “jobs” of the mineworkers who were retrenched and the functions performed by those mineworkers or take proper account of the nature of the restructure at the mine which led to an overall reduction in the size of the non-trades mineworker workforce. The Company restructured its operations in various ways including by outsourcing certain specialised, ancillary and other work and increasing the proportion of trade-qualified mineworkers in underground development and outbye crews. As a result, it was identified that there were 14 non-trades mineworker positions which were surplus to the Company’s requirements. The mineworkers whose employment was to be terminated were determined according to the seniority principle as provided in the Agreement. This did not mean that the functions or duties previously performed by the retrenched mineworkers were no longer required to be performed. It also did not mean that the positions of some of these mineworkers (e.g. in underground crews) did not continue, although those positions might after the restructure be filled by more senior non-trades mineworkers transferred from other parts of the operations or by trade-qualified mineworkers. However fewer non-trades mineworker jobs were required overall at the mine as a result of the operational changes introduced and, for this reason, the jobs of the 14 mineworkers selected for retrenchment could be said to no longer exist.

[20] These circumstances readily fit within the ordinary meaning and customary usage of the expression in s.389(1)(a) of the Act where a job is no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.’

[127] It will be seen that a consistent theme emerging from the above citations is the employer’s prerogative to rearrange the structure of its business by breaking up the functions, duties and responsibilities of a single position and distributing them among the holders of other positions, including newly created ones. In these examples, the work required to be performed does not change, but the means by which the work is organised does change. In some respects, notably in regard to general farmhand work, that is what occurred in this case - as I will shortly explain.

Was the applicant’s job no longer required to be performed by anyone?

[128] In my view, the evidence in this case established that Mr Hamilton had decided in late 2014, for operational and cost savings reasons, to externally outsource his horse training functions. The applicant’s evidence did not seriously challenge this proposition, nor did the applicant specifically dispute Mr Hamilton’s evidence that training on his farm cost $150 a day, whereas the training by an external Trainer at Kembla Grange was $80 a day. Both the applicant and Ms Bolwell’s evidence was to the effect that Mr Hamilton had informed them in early December 2014 of his intentions to train his horses off site.

[129] There is no doubt that the applicant was first engaged in 2012 as a Trainer, as his letter of appointment (Annexure A) makes abundantly plain (‘I am pleased to offer you employment in the position of Trainer with us at Mt Pleasant Stud Farm Pty Ltd (‘the employer’) on the terms and conditions set out in this letter.’). I accept Mr Hamilton’s evidence that no horses have been trained at Mr Pleasant since the applicant’s dismissal and there is no intention to do so in the foreseeable future. It is significant to note that a Horse Trainer is required to be registered with Racing New South Wales. Mr Hamilton employs no Trainers and while he has retained and hired Stud Farm Attendants (‘farmhands’) after the applicant’s dismissal and the work of Stud Farm Attendants may include aspects of the work performed by a Horse Trainer, their primary functions are not those of a qualified, registered Trainer. Nor did the advertisements for these positions contemplate applicants for the jobs being qualified as registered Horse Trainers.

[130] Accordingly, I am satisfied that Mr Hamilton no longer required the job of the applicant as a Trainer to be performed by anyone, because of changes in the operational requirements of his business. It follows, that I find that s 389(1)(a) of the Act is satisfied in this case.

Notification and consultation with the employee and options for redeployment

[131] There are two further aspects to the Act’s definition of ‘genuine redundancy’. The first concerns the notification and consultation provisions under the applicable Award and, secondly, whether it would have been reasonable to redeploy the applicant within the employer’s enterprise or an associated entity. As I do not understand there to be any associated entity of the respondent to which the applicant could have been redeployed, the focus then, is whether there were any available alternative positions at Mt Pleasant to which the applicant could have been redeployed.

[132] The applicant claimed that he had not been consulted at all about his redundancy or the effects of Mr Hamilton’s decision to outsource all the training work on his future employment. There is much force to this submission. He was certainly given nothing in writing in accordance with cl 8(1)(b)(iii) of the Award. Mr Lloyd conceded that Mr Hamilton could have better handled the consultation process with the applicant. Such a concession was entirely appropriate. The applicant also argued that the respondent had suitable alternative positions, which he could have filled, including that of Stud Farm Attendant, notwithstanding this was a lesser position.

[133] In Ulan Coal Mines v Honeysett and others [2010] FWAFB 7578 (‘Ulan Coal v Honeysett’), the Full Bench of Fair Work Australia (as the Commission was then named) held that employees and/or their representatives should be involved in discussions as to the problems associated with redundancy as soon as a firm decision had been taken that redundancies might be necessary. Further, at para [27], the Full Bench said:

‘[27] Secondly, it is implicit in the terms of s.389(2)(b) that it might be reasonable for an employee dismissed by one employer to be redeployed within the establishment of another employer which is an entity associated with the first employer. It follows that an employer cannot succeed in a submission that redeployment would not have been reasonable merely because it would have involved redeployment to an associated entity. Whether such redeployment would have been reasonable will depend on the circumstances. The degree of managerial integration between the different entities is likely to be a relevant consideration.

[28] Thirdly, the question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. 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 job, 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.

[29] It is appropriate to mention some submissions advanced by counsel for Ulan concerning the interpretation of the s.389(2). It was submitted that an employer will not usually have the power or right to transfer an employee to employment by another employer, except in the unusual case where it is provided for in the terms of employment. Accordingly, the use of the term “redeployment” is directed at a broader concept, one which would include employment with the employer or an associated entity at some time after termination for redundancy. It was said that it is appropriate to regard an employee as having been redeployed if the employee is subsequently employed in a different or alternative position by their former employer or by an entity associated with their former employer. While this submission has a number of other implications, it is sufficient to say that it is not consistent with the clear words of the section and would lead to a great deal of uncertainty in its application. As we have already indicated, if an employee is terminated for redundancy but subsequently employed within an entity related to the employer, that might be an indication that the employee could have been reemployed at the time of the termination. But this will not always be the case. Subsequent employment within an associated entity may occur because circumstances have materially altered since the termination. For example, vacancies may have arisen.

[30] In relation to its appeal, and leaving aside the issues of construction we have already dealt with, Ulan submitted that the Commissioner’s decision was wrong because he did not identify the particular positions in a particular enterprise to which each of the six applicants could have been redeployed. He also erred in not taking into account the failure of the employees to pursue job opportunities with the related entities after Ulan had publicised those vacancies. The Commissioner was influenced in this regard by the fact that the employees would have been competing for positions rather than being given some kind of preference. Further, it was submitted that the evidence indicated that the evidence given by four of the applicants did not indicate that at the relevant time they were interested in and ready and willing to take employment away from Mudgee.

[31] The Commissioner found that entities associated with Ulan had vacancies for jobs which were potentially suitable for the dismissed employees and there was no evidence that redeployment from Ulan to the mines operated by these associated enterprises would have any impact on operational efficiency. While the Commissioner decided that some of the employees dismissed by Ulan were encouraged to apply for vacancies at mines operated by associated entities, he also found that neither Xstrata nor its associated entities had a policy of employing persons who might be redundant in other enterprises in the group. In Xstrata’s case, this is despite the fact that it had overall managerial control in relation to the mining operations of the associated entities. These findings were open to him. The Commissioner also found no evidence that any of the relevant employees would have been unwilling to be redeployed to one of the other mines. It must be said that all of the evidence was not one way on this issue and, as Ulan’s submissions indicate, some of the employees in particular did not display a great deal of energy in following up on vacancies which Ulan brought to their attention. Nevertheless we think it was open to the Commissioner to find that if offered redeployment they would have accepted it.

…

[34] 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)(a) that a redundant employee be placed in 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. The outcome of that application would depend upon a number of other considerations.

[35] Where an employer is part of a group of associated entities which are all subject to overall managerial control by one member of the group, similar considerations are relevant. This seems to us to be a necessary implication arising from the terms of s.389(2)(b). While each case will depend on what would have been reasonable in the circumstances, subjecting a redundant employee to a competitive process for an advertised vacancy in an associated entity may lead to the conclusion that the employee was not genuinely redundant.’

[134] In Technical and Further Education Commission T/A TAFE NSW v Pykett[2014] FWCFB 714 (‘Pykett’) a Full Bench of the Commission held:

‘[36] We have earlier set out the submissions of the appellant and the respondent as to the proper construction of s.389(2) (see paragraphs [15] to [18] above). We accept the respondent’s submissions. For the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding. Such an interpretation is consistent with the ordinary and natural meaning of the words in the subsection; the Explanatory Memorandum and Full Bench authority. We acknowledge that the facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee. If an employer wishes to rely on the ‘genuine redundancy’ exclusion then it would ordinarily be expected to adduce evidence as to the following matters:

(i) that the employer no longer required the dismissed employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;

(ii) whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and

(iii) whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employer.’

[135] It will come as no surprise that I do not accept that Mr Hamilton had properly complied with the Award’s consultation provisions in respect to the redundancy of the applicant. The meaning of the word ‘consult’, was considered by the Full Bench in Consultation Clause in Modern Awards [2013] FWCFB 10165. At paras [30]-[33], the Full Bench said:

‘[30] The word ‘consult’ means more than the mere exchange of information. As Young J said in Dixon v Roy :

“The word ‘consult’ means more than one party telling another party what it is that he or she is going to do. The word involves at the very least the giving of information by one party, the response to that information by the other party, and the consideration by the first party of that response.” [citations omitted]

[31] The right to be consulted is a substantive right, it is not to be treated perfunctorily or as a mere formality. Inherent in the obligation to consult is the requirement to provide a genuine opportunity for the affected party to express a view about a proposed change in order to seek to persuade the decision maker to adopt a different course of action. As Logan J observed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (QR):

“... A key element of that content [of an obligation to consult] is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.

To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that ?”. Only in the latter case is there “consultation. ...”

[32] We respectfully adopt his Honour’s observations. Similar to the obligation to accord a person procedural fairness, the precise content of an obligation to consult will depend on the context. The extent and significance of a proposed change, in terms of its impact on the affected employees, will have a bearing on the extent of the opportunity to be provided. Hence a change of limited duration to meet unexpected circumstances may mean that the opportunity for affected employees to express their views may be more limited than would be the case in circumstances where the proposed change is significant and permanent. It is also relevant to note that while the right to be consulted is a substantive right, it does not confer a power of veto. Consultation does not amount to joint decision making.

[33] Some of the ordinary incidents of a requirement to consult are reflected in s.145A(2), that is:

● to provide information about the change; and

● to provide an opportunity for affected employees to give their views about the impact of the change; and

● to consider any views about the impact of the change that are given by the employees [footnotes omitted].’

[136] Specifically, in this case, I note that in Mr Hamilton’s own evidence, he agreed he had only made the decision (to terminate the applicant’s employment) in the previous 24 hours, prior to 13 February 2015. Mr Hamilton claimed that by having an informal chat with the applicant in December 2014 about the higher costs of training horses on the farm as opposed to external training, this constituted appropriate consultation for the purposes of the Award’s requirements. I do not agree for the following reasons.

[137] Firstly, in his own evidence, Mr Hamilton describes that discussion as an ‘informal meeting’. Consultation requires more than an informal chat about future intentions. Secondly, there was no evidence that the conversation included the impact on the applicant’s employment of the decision to no longer train horses at Mr Pleasant. There was certainly no discussion about the applicant’s redundancy or the possibility of redeployment options. Thirdly, the horses to be trained were not sent off the property for another month, without any discussion in the meantime of the applicant’s future at Mt Pleasant.

[138] In my view, it is irrelevant that Mr Hamilton had decided to make the applicant’s job redundant on 5 February 2015, but had delayed telling him until 13 February because of the finalisation of the purchase of the applicant’s share in a horse on the property. The fact was that the applicant was not informed of his redundancy until the very day it was to be affected -13 February 2015. This was utterly inconsistent with the consultation provisions of the Award.

[139] In addition, Mr Lloyd pleaded Mr Hamilton’s lack of familiarity with his Award obligations and the Act and he relied on Mr Hamilton’s business being a small business to justify Mr Hamilton’s ignorance of the Award, the Act and the Code. Such a submission is unacceptable. In any event, Mr Hamilton should have been aware of, and been familiar with the Award or sought advice about his obligations at the time. Pleading ignorance as an uninformed employer, simply does not ‘cut it’. He certainly knew of the Award’s existence when he expressly referred to the Award’s other terms and conditions in the applicant’s letter of appointment.

[140] As to redeployment, it is clear from Mr Hamilton’s evidence that there was no training work left at Mt Pleasant, after the applicant’s redundancy. I accept his evidence in that respect. Nevertheless, soon after the applicant’s redundancy, Mr Hamilton advertised for new employees as casual Stud Farm Attendants. Mr Hamilton denied any conversation with the applicant about him working as a Stud Farm Attendant, as he believed, he would have been insulted by such a proposal. However, that is not the test of considering alternative positions for redeployment. If he did not have that conversation, he should have; if only to establish the applicant’s interest or otherwise. It was not open for Mr Hamilton to presume the applicant would not take up such an offer, particularly given he knew the applicant’s WorkCover certificate described the applicant as unfit for working with horses.

[141] On this point, I refer to what Ryan C said in Margolina v Jenny Craig Weight Loss Centres Pty. Ltd. [2011] FWA 5215 at para [36]:

‘[36] What each of the three cases and the present matter show is that employers should not arrogate to themselves the role of concluding how the redundant employee will respond to an offer of redeployment to a lower paid position. In each of the three cases relied on the conclusion that the redeployment offer was not reasonable in all the circumstances was not arrived at simply because the employer presumed that to be the case but was only arrived at by the Tribunal considering all of the evidence and material before it and then making a decision.’

See also an appeal of this decision: Jenny Craig Weight Loss Centres Pty Ltd v Margolina [2011] FWAFB 9137, where the Full Bench said at paras [27]-[28]:

‘[27] In Ulan Coal Mines Limited v. Honeysett and others a Full Bench of the tribunal considered s.389(2) and said:

“[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 job, 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.”

[28] In this case it is clear that there was a centre leader position available. The respondent had the necessary skills, qualifications and experience and she had no objection based on location. While the income was much lower and the responsibility much less than for a regional manager, she gave evidence that she would have accepted a centre leader role for reasons which we have referred to above. There is no reason to disbelieve the respondent’s evidence, even though she has now taken a leadership role, which appears to be similar to her former role with the appellant.’

[142] Given the above findings, it is not strictly necessary to determine whether redeployment was available at the respondent’s enterprise. It was simply not discussed with the applicant, contrary to the employer’s obligations under the Award and the Act. However, it must be emphasised that the applicant’s primary role had been that of a Trainer and no roles for Trainers were available at the respondent’s enterprise at the relevant time. In addition, even if the respondent had acted reasonably in respect to redeployment options, it is apparent that the applicant no longer seeks reinstatement, either as a Trainer or Stud Farm Attendant at Mt Pleasant.

[143] That said, for the aforementioned reasons, I am satisfied that the applicant’s dismissal was not a case of ‘genuine redundancy’, within the meaning of s 389(1)(b) of the Act, in that the respondent had not notified and consulted with the applicant in accordance with its obligations under the Award and the Act. It must follow that the applicant was a person protected from unfair dismissal.

[144] This application will be relisted for mention and directions at 9:30am, 1 October 2015, in respect to further proceedings as whether the applicant’s dismissal was unfair and, if so, what, if any remedy should be ordered by the Commission. However, given my findings in this matter; the conclusions in Sprigg; the provisions of s 392(4) of the Act and the possible jurisdictional impediment to the Commission awarding compensation for ancillary losses, such as accommodation, electricity, removalists, etc., I would strongly recommend that the parties enter into negotiations in respect to settling any further Commission proceedings.

DEPUTY PRESIDENT

Appearances:

Applicant in person with Mrs M McCormick.

Mr G Lloyd, Solicitor for the respondent.

Hearing details:

2015:

Sydney

16, 17 July.

Printed by authority of the Commonwealth Government Printer

<Price code J, PR571903>

Annexure A